UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

PHILIP WORKMAN v. GOVERNOR PHIL BREDESEN, et al.

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)

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NO. 3:07-0490

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JUDGE CAMPBELL

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TEMPORARY RESTRAINING ORDER

Pending before the Court is a Motion For A Temporary Restraining Order filed today by the Plaintiff (Docket Nos. 1and 7). Plaintiff asks this Court to issue a Temporary Restraining Order (“TRO”) enjoining Defendants from executing Plaintiff on May 9, 2007, pursuant to the new execution protocol disclosed by Defendants on April 30, 2007.
On February 1, 2007, Defendant Governor Bredesen issued Executive Order No. 43, revoking Tennessee’s execution protocol and directed the Tennessee Department of Corrections to draw up new protocols no later than May 2, 2007. On April 30, 2007, the State of Tennessee adopted a newly promulgated execution protocol. Plaintiff has filed a grievance challenging the constitutionality of that protocol administratively, pursuant to the Prison Litigation Reform Act, within the Tennessee Department of Corrections. Plaintiff seeks to maintain the status quo until he can challenge the constitutionality of the new execution protocol in this Court.
The Court held a hearing on the Motion on May 4, 2007, at 1:30 p.m., which was attended by counsel for all parties. At the hearing, the parties represented to the Court that, after this case was filed today, the Commissioner of Corrections notified the Plaintiff that his grievance has now been denied. Plaintiff, therefore, has now exhausted his administrative remedies. Plaintiff further

Case 3:07-cv-00490 Document 8 Filed 05/04/2007 Page 1 of 4

represented that a Complaint will be filed promptly in this Court alleging the constitutional violations asserted in the pending pleadings. The Complaint has now been filed (Docket No. 6).
For the reasons described below, the Motion is GRANTED on the terms and conditions stated herein.
In determining whether to issue a TRO pursuant to Rule 65 of the Federal Rules of Civil Procedure, the Court is to consider: (1) whether the movant has shown a strong or substantial likelihood of success on the merits; (2) whether irreparable harm will result without an injunction; (3) whether issuance of a preliminary injunction will result in substantial harm to others; and (4) whether the public interest is advanced by the injunction. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).
Based on the Motion, affidavits, briefs, representations of counsel and the entire record, the Court finds:
(1) Plaintiff has demonstrated a strong or substantial likelihood of success on the merits of his constitutional claims. Plaintiff argues that the new execution protocol exposes him to a foreseeable and likely unnecessary risk of unconstitutional pain and suffering in violation of the Eighth Amendment. Plaintiff cites the Declaration of Dr. Mark Heath who opines that the new lethal injection protocol “does little to nothing to assure [the State] will reliably achieve humane executions.” (Declaration of Mark Heath, at ¶ 69 (Exhibit 2 to Motion For Temporary Restraining Order)). According to Dr. Heath, the new protocol creates a substantial risk of unnecessary suffering “given the apparent absence of a central role for a properly trained professional in TDOC’s execution procedure, the characteristics of the drugs or chemicals used, the failure to understand how the drugs in question act in the body, the failure to properly account for foreseeable risks, [and]
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the design of a drug delivery system that exacerbates rather than ameliorates the risk.” (Id.) The Defendant offers nothing in rebuttal to this evidence.
In addition, Plaintiff points out that federal district courts in California and Missouri, which use a similar lethal injunction protocol, have issued stays of executions. See Morales v. Hickman, 415 F.Supp.2d 1037 (N.D. Cal. Feb. 14, 2006) and Taylor v. Crawford, 2006 U.S. Dist. LEXIS 74896 (October 16, 2006).
In response, the Defendants argued that the Court should deny the TRO because a complaint has not yet been filed in this case. Defendants indicate that they will respond to the merits of Plaintiff’s claims once they are set out in the complaint.
The evidence in the record at this stage of the proceeding indicates that Plaintiff has a probability of success on the merits of the claim that the lethal injunction protocol creates a foreseeable and likely unnecessary risk that the Plaintiff will incur constitutionally excessive pain and suffering when he is executed, especially given that there is no procedure for monitoring the Plaintiff’s level of consciousness during the process.
(2) Plaintiff has demonstrated that he will suffer immediate and irreparable harm if injunctive relief is not granted pending a preliminary injunction hearing. Specifically, the Court finds that the Plaintiff is scheduled to be executed by lethal injection on May 9, 2007, if injunctive relief is not granted.
(3) The balance of relative harms among the parties weighs in favor of Plaintiff against Defendants. The irreparable harm to Plaintiff is undisputed. The relative harm to Defendants of postponing the execution until a full review of the new execution protocol can be completed does not outweigh Plaintiff’s interest. Defendants have no interest in proceeding with an execution protocol which may ultimately be found to be unconstitutional. Plaintiff is essentially asking that
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the review of Tennessee’s execution protocol, begun by Governor Bredesen on February 1, 2007, be completed, through review by the Court, prior to its being used to end his life.
(4) The public interest will not be harmed by injunctive relief pending a preliminary injunction hearing. The public has an interest, as evidenced by Defendant Bredesen’s decision to review the execution protocol, in assuring that the lethal injection protocol for Tennessee is constitutional. That process cannot be completed by the parties and the Court prior to May 9, 2007.
It is, therefore, ordered, pursuant to the All Writs Act, 28 U.S.C. § 1651, Federal Rule of Civil Procedure 65, and the inherent powers of the Court, that Defendants, their officers, agents, employees, servants, attorneys, and all persons in active concert or participation with them are hereby restrained and enjoined from executing Philip Workman pursuant to the new execution protocol, pending a preliminary injunction hearing . The Temporary Restraining Order is issued in aid of the jurisdiction of the Court and to preserve its ability to adjudicate the constitutional claims asserted on their merits before Plaintiff is executed.
Under the circumstances of this case, no bond is required. This Temporary Restraining Order shall expire on May 14, 2007. The hearing on a motion for preliminary injunction will be held on May 14, 2007, at 8:00 a.m. This Temporary Restraining Order is effective upon its issuance on May 4, 2007, at 4:15 p.m. It is so ORDERED.
__________________________________ TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE
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 FILED

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

1007 MAY -4 PM 1/: 31

NASHVILLE DIVISION

U.S. DISfi1iCT COURT MIDDLE DISTHICr Of TN

I'HILIP WORKMAN,

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Plaintiff,
v

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3 07 0490

) No. --::--c:=-----__--=---

) Death Penalty Case

) Execution Date May 9, 2007,1:00 a,m,

GOVERNOR PHIL BREDESEN, in his )

official capacity as Governor of the )

State of Tennesseee;

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GEORGE LITTLE, in his official capacity )

as Tennessee's Commissioner of

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Corrections;

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RICKY BELL, in his official capacity as )

Warden, Riverbend Maximnm

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Secnrity Institution;

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GAYLE RAY, in her official capacity as )

Assistant Commisioner of

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Corrections;

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ROLAND COLSON, in his official capacity )

as Assistant Commissioner of

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Corrections;

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JULIAN DAVIS, in his official capacity as )

Executive Assistant to the

)

Commissioner;

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DEBBIE INGLIS, in her official capacity as )

General Counsel to the Department )

of Corrections;

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JOHN DOE I'HYSICIANS 1-100;

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JOHN DOE PHARMACISTS 1-100;

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JOHN DOE MEJ)lCAL PERSONNEL 1-100~

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JOHN DOE EXECUTIONERS 1-100;

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Case 3:07-cv-00490 Document 1 Filed 05/04/2007 Page 1 of 5

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JOHN DOES 1-100,

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Defendants.

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MOTION FOR TEMPORARY RESTRAINING ORDER Plaintiff Philip Workman respectfully moves this Court for a temporary restraining order, pursuant to 28 US.C § 1651 and Article III, restraining the Defendants (including Warden Bell) from executing Philip Workman on May 9, 2007 pursuant to the new execution protocol (just made known to MI. Workman by Defendants on April 30, 2007, at 4:10 p.m, just 8 business days and I hour prior to his scheduled execution on May 9, 2007 at I :00 a m) before he is able to exhaust his administrative remedies with the I ennessee Department of Conections and file a Section 1983 lawsuit challenging the constitutionality of Defendants' new execution protocol Moreover, Plaintiff also respectfully moves this Court for a temporary restraining order restraining the Defendants from proceeding with the execution of Plaintiff according to the New April 30, 2007 Protocol which utilizes sodium thiopental, an ultra-short acting barbiturate, without the assistance of personnel who are medically trained and licensed in anesthesiology (i e, an anesthesiologist or certified nurse anesthetist), and fiom obtaining, seeking to obtain, ordering, writing a prescription, writing a physician's order, prescribing, dispensing, or in any other manner transfening to Defendants Bell or any other Defendants involved in the execution process sodium thiopental, pancuronium bromide, and potassium chloride in any form whatsoever As shown in the accompanying memorandum, Defendants would intend to execute Philip Workman on May 9, 2007, using the new execution protocol only disclosed by the IDOC on April 30,2007, and immediately approved by the Governor without giving Mr. Workman the opportunity
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to thoroughly review the protocol, to exhaust his administrative remedies by allowing his Emergency Grievance to be decided and appealed, and to thereafter file a Section 1983 lawsuit challenging the constitutionality of the New April 30, 2007 Protocol Indeed, as explained in the attached Memorandum in Support of IRO, the New April 30, 2007 Protocol is unconstitutional:
(I) It creates an unacceptable risk that Plaintiff will needlessly and consciously suffer excruciating pain while experiencing death by asphyxiation in violation of his right to be free fiom cruel and lillusual punishment under the Eighth and Fourteenth Amendments;
(2) It violates the evolving standards of decency; See I rop v. Dulles, 356 US 86 (1958); (3) It violates Plaintiffs rights to substantive due process under the Ninth Amendment; and, (4) It was developed with deliberate indifference to the risk that Plaintiff will needlessly and consciously suffer excruciating pain while experiencing death by asphyxiation in violation of the Fourteenth Amendment For these reasons, and all those expressed in the accompanying memorandum in support, this Court should enter a temporaryrcstraining order prohibiting the Defendants from executing Plaintiff on May 9, 2007 using the New April 30, 2007 Protocol
Respectfully submitted, Paul R Bottei Kelley J Berny Gretchen L Swift Office of the Federal Public Defender Middle District of I ennessee 810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047
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FAX (615) 736-5265
CERTIFICATE OF SERVICE I certifY that on this 4th day of May, 20007, I caused a copy ofthe foregoing to be served via hand-delivery to the following: Warden Ricky Bell Riverbend Maximum Security Institution 7475 Cockrill Bend Industrial Blvd Nashville, I ennessee 37209 Warden Roland Colson Lois M DeBerry Special Needs Facility 7575 Cockrill Bend Blvd Nashville, TN 37219 Attorney General Robert E. Cooper, Jr 425 Fifth Avenue North Nashville, I ennessee 37243 Julian Davis Executive Assistant to the Commissioner Rachel Jackson Building Sixth Floor 320 Sixth Avenue North Nashville, I ennessee 37243-0465 Steven Edward Elkins, Esq Legal Counsel to the Governor State Capitol G-1 0 Nashville, I ennessee 37243
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General Counsel Debbie Inglis I ennessee DepaItment of Correction Rachel Jackson Building FoUlth Floor 320 Sixth Avenue North Nashville, I ennessee 37243-0465 Assistant Commissioner Gayle Ray Rachel Jackson Building Sixth Floor 320 Sixth Avenue North Nashville, I ennessee 37243-0465
5 Case 3:07-cv-00490 Document 1 Filed 05/04/2007 Page 5 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

200UtAY --4 PM II: 31

PHILIP WORKl'fAN,

NASHVILLE DIVISION )

U.S. DISl BitT COURT
11lDOLE OISiRICT OF' TN

)

Plaintiff,

) )

No___3__0_7__ 0490

v

) Death Penalty Case

) Execution Datc May 9, 2007,1:00 a"m,

GOVERNOR PHIL BREDESEN, in his )

official capacity as Governor of the )

State of Tennesseee;

)

)

GEORGE LITTLE, in his official capacity )

as Tennessee's Commissioner of

)

Corrections;

)

)

RICKY BELL, in his official capacity as )

Warden, Riverbend Maximum

)

Security Institution;

)

)

GAYLE RAY, in her official capacity as )

Assistant Commisioner of

)

Corrections;

)

)

ROLAND COLSON, in his official capacity )

as Assistant Commissioner of

)

Corrections;

)

)

JULIAN DAVIS, in his official capacity as )

Executive Assistant to the

)

Commissioner;

)

)

DEBBIE INGLIS, in her official capacity as )

General Counsel to the Department )

of Corrections;

)

)

JOHN DOE PHYSICIANS 1-100;

)

)

JOHN DOE PHARMACISTS 1-100;

)

)

.JOliN DOE MEDICAL PERSONNEL 1-100~

)

JOHN DOE EXECUTIONERS 1-100

)

Case 3:07-cv-00490 Document 2-1 Filed 05/04/2007 Page 1 of 55

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JOHN DOES 1-100,

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Defendants.

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MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

FOI the first time anywhere in this Country, the State ofT ennessee, intends to execute a death

row inmate just eight days and one hour after adopting new execution protocols. On April 30, 2007,

at the close of the business day, the Governm of the State of Tennessee signed off on newly

promulgated execution protocol ("New April 30, 2007 Protocol"), less than one hour after having

received it Mr WOIkman is scheduled to be executed on May 9, 2007 at 1:00 a m. using this newly

enacted lethal injection protocol which provides fm the procurement, mixing, and administration of

highly sensitive and unstable chemicals by poorly trained and unqualified personnel, while the only

physician present waits in the garage. Meanwhile, according to the New April 30, 2007 Protocol,

the only criteria fm selection to serve on the execution team that oversees these tasks are: "length

of service, ability to maintain confidentiality, maturity, willingness to participate, satisfactOlY work

per for mance, professionalism, staff recommendations to the Warden, and review of personnel files

by the Warden prim to selection" See New April 30, 2007 Protocol, Exhibit 1, p. 32.

The New April 30, 2007 Protocol uses the same three-drug cocktail that has been found

unconstitutional in other jurisdictions when administered in the manner that the State of Tennessee

proposes to administer it to Mr Workman Sodium thiopental is a highly unstable drug that should

not be used as the anesthetic; pancuronium bromide (pavulon) is a paralytic agent that creates a

chemical veil over the entire process and poses the risk ofa tOltUroUS death by causing paralysis and

asphyxiation without affecting consciousness creating a risk that Mr Workman will suffocate to

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death without any ability to move any muscle in his body; while potassium chloride delivers the maximum amount of pain to his cardiovascular system These same pOOily trained and uncredentialed cOITectional officers are responsible fOi performing the execution using a complicated injection contraption oftubing, junctures, catheters, stopcocks, and eleven syringes that would never be used in a hospital 01 even an animal shelter Moreover, the use ofpancuronium blOmide is strictly plOhibited in cuthanizing domesticated animals
Dr. Mark I-leath, Assistant PlOfessOi ofClinical Anesthesiology at Columbia University who has reviewed andlOi testified about lethal injection plOcedures in twenty-seven jurisdictions, has reviewed the New April 30, 2007 PlOtocol and reached the following conclusion:
Based on my research into methods of lethal injection used by various states and the federal government, and based on my training and experience as a medical doctor specializing in anesthesiology, it is my opinion stated to a reasonable degree of medical certainty that, given the apparent absence of a central role for a plOperly trained professional in TDOC's execution procedure, the characteristics of the drugs 01 chemicals used, the failure to understand how the drugs in question act in the body, the failure to properly account fOi foreseeable risks, the design of a drug delivery system that exacer bates rather than ameliOiates the risk, the TDOC has created an revised execution protocol that does little to nothing to assure they will reliabily achieve humane executions by lethal injection See Declaration of Dr Mark Heath, Exhibit 2, -,r 69 Where other jurisdictions have found the use of this very protocol to be "dangerous," "dceply disturbing," and unconstitutional, and where both courts and government officials have refused to allow executions to proceed using an essentially identical protocol, a Temporary Restraining Order rs necessary
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1. INTRODUCTION On May 9, 2007 at 1:00 am., the state of Tennessee intends to execute Philip Workman, a
death row inmate at River bend Maximum Security PIison in Nashville, Tennessee, by lethal injection using its brand New April 30, 2007 Protocol A growing body of evidence, including medical evidence, eyewitness observations, and veterinaIY studies, persuasively demonstrates that Tennessee's New ApIi130, 2007 Protocol creates a significant riskMr WOIkman will fail to receive adequate anesthesia and will be conscious fOi the duration of his execution. Without adequate anesthesia, Mr WOIkman will experience fir st the exclUciating pain and ten 01 of slow suffocation and then the "extraordinaIily painful" activation ofthe sensOlY nerve fibers in the walls of the veins that is caused by potassium chlOlide Given this significant and foreseeable risk under the New April 30, 2007 Protocol, Mr WOIkman seeks to prevent Defendants from executing him in a manner that is likely to subject him to this exclUciating pain.
The New April 30, 2007 Protocol calls for the use of three dlUgs in succession: first, sodium thiopental, an ultrashOit-acting bar biturate that under ideal conditions will cause the inmate to lose consciousness; pancuronium bromide, a neuromuscular blocking agent that paralyzes the muscles and has no apparent purpose other than to make the execution appear peacefill to witnesses; and finally, potassium chlOlide, which induces cardiac aIrest See New April 30, 2007 Protocol, Exhibit I, p 35 The New April 30, 2007 Protocol also establishes the conditions under which these dmgs are administered. These conditions - including the remote administration ofthe drugs, the absence oftrained personnel, and a failure to monitOi the inmate's condition - create a serious risk that the dmgs, particulaIly the sodium thiopental, will not be properly administered Such an ellOi could result, and has resulted, in inmates actually remaining conscious and alelt during pOitions of their
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execution. The New April 30, 2007 Protocol also fails to set forth any procedures for preventing or reacting to these obvious risks: It does not, for instance, explain how execution personnel should detect and react to problems with drug administration or provide for stopping the execution should it become clear that the inmate is still conscious
Thus, Mr Workman's suit is not premised on the possibility that some unforeseen enor or unavoidable accident might cause him to be aware and in excruciating pain during his execution On the contrary, he alleges that the significant risk ofa botched execution is an entirely foreseeable consequence of the conditions imposed by, and failings of, the New April 30, 2007 Protocol It is surely unconstitutional for the State to institute an execution protocol that creates a significant risk of inflicting excruciating pain, and then to consciously disregard that risk Mr Workman therefore requests that the Court enjoin the defendants fiom executing him by means of lethal injection as it is currently administered unde! the New April 30, 2007 Protocol.
Not only that, but the New April 30, 2007 Protocol continues to rely on the antiquated practice of utilizing a cut-down, a dangerous, out-dated, and painful surgical procedme, if a suitable vein cannot be accessed It is well-known that prior intravenous drug users, like Mr Workman, are more likely to have compromised veins Thus, there is a real and apparent risk that Mr Workman's veins will be compromised during the lethal injection procedure The New April 30, 2007 Protocol provides absolutely no description ofthe procedmes that the doctor waiting in the garage will follow ifhe is called upon to perform a cut-down Moreover, the New April 30, 2007 Protocol mentions nothing about the qualifications ofthat doctor waiting in the garage to do a cut-down procedme See New April 30,2007 Protocol, Exhibit I, pp 41,67
Because Mr. Workman faces real and immediate harm from the Defendants' planned use of
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the New April 30, 2007 Protocol and because Defendants were deliberately indifferent to the risk of that harm in their development ofthe new protocol, Mr Workman has asked this COUlt to issue a Temporary Restraining Order prohibiting the defendants from carrying out his execution using the New April 30, 2007 Protocol in order to preserve jmisdiction over this matter while Mr Workman exhausts administrative remedies pUisuant to the Emergency Grievance procedme promulgated by Defendants Il. FACTUAL BACKGROUND
On January 17,2007, the Tennessee Supreme COUIt set Mr Workman's execution date for May 9, 2007. On January 24,2007, Mr Workman, by counsel, sent a letter to the Commissioner of the Tennessee Department of COllections, George Little, setting out his concerns with Tennessee's execution protocol. On February 1, 2007, Governor Bredesen issued Executive Order No 43 revoking Tennessee's execution protocol and any related procedUies. See Governor's Executive Order No 43, Exhibit 3 In so doing, Governor Bredesen called the previous execution protocol a "sloppy" "cut and paste job" that was "full of deficiencies." The Governor directed the Department of Corrections to draw up new plOtocols no later than May 2, 2007. Id
On March 15,2007, Mr Workman filed a Motion to Vacate his May 9, 2007 execution date in the Tennessee Supreme COUIt because it was apparent that Mr Workman would not have sufficient time to review and litigate any possible claims that he may have under any newly enacted protocol See Philip Workman's Motion to Vacate Execution Date, Exhibit 4. The State of Tennessee opposed Mr Workman's motion (See State's Response to Motion to Vacate Execution Date, Exhibit 5), and the Tennessee Supreme COUll refused Mr Workman's request See I ennessee Supreme COUIt Order, March 27,2007, Exhibit 6
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The Governor's execution review team conducted their work in complete secrecy The contents of the New April 30, 2007 Protocol were only made known to Mr. Workman for the first time at 4:10 pm. on April 30, 2007 The review team's Report on Administration of Death Sentences In Tennessee was delivered the following day See Tennessee Report on Administration of Death Sentences in Tennessee, Exhibit 7. Even so, Mr Workman has outstanding requests for public records sent to the Governor, the Commissioner of the Department ofConections, and each member of the review team, relating to the development, promulgation, evaluation, and implemcntation ofthose protocols See Philip Workman's April 25 ,2007 Recor ds Requests, Exhibit 8 Some documents have been disclosed, other documents have not
The few documents from the execution review team that have been disclosed demonstrate that the State of Tennessee was deliberately indifferent in its development ofthe New April 30,2007 Protocol. The execution review team contained no members with medical or pharmacological expertise Emails provided by the State of Tennessee, reveal that the "lead" member of the Lethal Injection Review Team is the Commissioner's Executive Assistant See Email from Julian Davis to Dr Mark Dershwitz, Exhibit 9. In a report to the Governor, the Commissioner told the Governor that the Board had consulted with the Bureau Of Prisons in Teue Haute and went on a site visit to participate in their lethal injection training. See Tennessee Report on Administration of Death Sentences in Tennessee, Exhibit 7, p. 5 The Commissioner's Report fails to reveal that the lethal injection protocol at the federal facility in Terre Haute has been suspended by the agreement ofthe United States Attorney Gencml while concerns about the constitutionality ofthe lethal injection protocol are being examined. See Roane v. Gonzales, No 05-2337 (D.C Dist.), february 16,2007 Order and Unopposed Motion for Preliminary Injunction, Exhibit 10
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Mr Workman, by counsel, reviewed the New April 30, 2007 Protocol as quickly as possible Because the Prison Litigation Reform Act requires Mr Workman to exhaust his administrative remedies before filing a complaint with this Court under 42 USC §1983, Mr Workman initiated exhaustion ofthose remedies by filing an Emer gency Grievance with the prison less than forty-eight hours after his counsel first received the New April 30, 2007 ProtocoL See Philip Workman's May 2,2007 Emergency Grievance, Exhibit 11. Mr Workman intends to file a complaint in this Court immediately upon the completion of administrative exhaustion However, under Tennessee Department of Conections Policy 501 01, exhaustion of administrative remedies takes five (5) business days See TDOC Policy 501 01, Exhibit 12. Mr . Workman does not have five (5) business days left III. THIS COURT HAS THE AUTHORITY TO GRANT MR. WORKMAN A
TEMPORARY RESTRAINING ORDER UNDER THE ALL WRITS ACT, 28 U"S.,C §1651 Under 28 US C §1651, the All Writs Act, provides that: I he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law rd. "To satisfY the jurisdictional prerequisite," that a writ be "in aid of' jurisdiction "it is not necessary that a case be pending in the court asked to issue the writ"In Re Richards, 213 F 3d 773, 779 (3d Cir. 2000); In Re Chambers Development Co., 148 F 3d 214, 224 n 6 (3d Cir 1998); United States v, Christian, 660 F.2d 892, 892 (3d Cir. 1981) Rather, an order under the All Writs Act may be used to "aid" a court if it has jurisdiction over a 'past, present, or future action. ", Texas v, Umphrey, 259 F 3d 387,392 (5 th Cir 2001), citing Telecommunications Research & Action Center v, FCC, 750 F.2d 70, 76 (D CCir 1984)
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Under §1651, therefore, a federal court may issue a writ - including an injunction - to preserve and protect its "future jurisdiction." Confederated Tribes Of The Umatilla Indian Reservation v. Bonneville Power Administration, 342 F 3d 924, 930 (9th Cir 2003). See BIaLY.-. Young, 509 F 2d 650, 651 (6th Cir 1974)(Sixth Circuit may issue writ under All Writs Act to preserve future appellate jurisdiction). Thus, "When potential jurisdiction exists, a federal court may issue status quo orders to ensure that once its jurisdiction is shown to exist, the court will be in a position to exercise it" ITT Comm. Development Corp. V. Barton, 569 F 2d 1351,1359 n. 19 (5 th Cir 1978) See Westinghouse Electric Corp. v. Republic of the Philippines, 951 F 2d 1414, 1422 (3d Cir 1991)(when "it is clear thatthe underlying case may at some future time come within the court's
jurisdiction," a court may issue a writ under §1651 to preserve that jurisdiction) In a capital case, a federaljudge may thus stay an execution under §1651 when necessary to
preserve future federal jurisdiction - even if the case has not yet anived in his or her court. See~, Woodard v. Hutchins, 464 US 377, 104 S. Ct. 752 (1984)(circuitjudge had jurisdiction to issue stay of execution to allow district court consideration of habeas corpus petition); Messer v. Kemp, 831 F 2d 946, 957 (11 th Cir. 1987)(All Writs Act allows federal court to issue stay of execution "to
preserve issues for judicial review") Indeed, as Judge Moore has succinctly explained, in a capital case, a district court may enter a stay of execution to preserve its future jurisdiction:
[TJhe district court did not abuse its discretion in granting a stay [of execution] because it had the authority to grant a stay to determine the propriety of its jurisdiction A federal court has the power under the All Writs Act to issue injunctive orders in a case even before the court's jurisdiction has been established When potential jurisdiction exists, a federal court may issue orders preserving the status quo to ensure that once its jurisdiction is shown to exist, the court will be in a position to exercise it. See 28 US C §1651 ("The Supreme Court and all courts established by Act of Congress may issue all writs necessary and appropriate in aid oftheirrespectivc jurisdictions and agreeable to usages and principles oflaw "); FTC
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v. Dean Foods Co., 384 US 603-05,16 L.Ed.2d 802, 86 S.Ct 1738 (1966)

West v. Bell, 242 F 3d 338, 347 (6th Cir 2001)(Moore, J , dissenting).

Based on the authOlity ofthe All Writs Act and the foregoing cases, Mr WOIkman requests

that this Court issue a TRO to preserve its futUie jurisdiction and to prevent the mooting of his

meritOlious 42 USC § 1983 lawsuit by his very execution

IV. STANDARDS GOVERNING A TEMPORARY RESTRAINING ORDER

When evaluating a movant's request fOi a tempOimy restr aining order, a court must consider:

(1) whether the movant has a strong likelihood ofsuccess on the merits; (2) whether the movant

would suffer inepmable injury without the injunction; (3) whether issuance ofthe injlmction would

cause substantial hmm to others; and (4) how the public interest would be affected by issuance of

the injunction. Blue Cross & Blue Shield Mutual of Ohio v. Blue ClOSS and Blue Shield Association,

110 F 3d 318, 322 (6th Cir 1997) Using these standmds, Mr WOIkman is entitled to the tempormy

relief he requests

V" MR. WORKMAN IS ENTITLED TO A TEMPORARY RESTRAINING ORDER

A. MR. WORKMAN WILL PREVAIL ON THE MERITS

1

Mr WOIkman's Claim Is Cognizable Under 42 USC § 1983

Mr WOIkman does not challenge the legality ofhis conviction or sentence, nor does he seek

to prevent the State from executing him in a lawful maImer Mr. WOIkman's challenge relates to

the unconstitutionality of the New April 30, 2007 Protocol which the TDOC plans to use to execute

him on May 9, 2007 at 1:00 a m This claim therefore mises under 42 USC § 1983. See Hill v.

McDonough, 547 US. _, 126 S Ct 2096, 2102 (2006)(a claim challenging a method of execution

as ClUe! and unusual punishment that "would not necessmily prevent the State from executing him

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by lethal injection" is proper under § 1983 and need not be brought in habeas)

2

The New April 30, 2007 Protocol Violates The Eighth And Fourteenth

Amendments

The Eighth Amendment, applicable to the States through the Fourteenth Amendment,

prohibits the imposition of cruel and unusual punishments See US. Const Amend VIII That

prohibition includes the "infliction of unnecessary pain in the execution of the death sentence."

Louisiana ex reI. francis v. Resweber, 329 U.S 459,463 (1974); see also Gregg v. Georgia, 428

US 153,173 (1976)(holding that the Eighth Amendment prohibits the "unnecessary and wanton

infliction ofpain") The Eighth Amendment also prohibits punishments that are "incompatible with

the 'evolving standards of decency that mark the progress ofa maturing society " Estelle v. Gamble,

429 U.S 97, 102,97 S Ct. 285, 290 (1 976)(quoting Trop v. Dulles, 356 U.S 86, 101, 78 S .Ct.590,

598 (1958»

Because it is impossible to determine with certainty before the fact whether Mr Workman

will suffer unnecessary pain during his execution, the question ofwhether a particular execution

procedure will inflict unnecessary pain is fundamentally an inquiry as to whether the inmate is

"subject to an unnecessary rilk ofunconstitutional pain or suffering" Cooper v. Rimmer, 379 F 3d 1029, 1033 (9th Cir 2004)(emphasis added) Recently, the United States District Court for the

Northern District of California in Morales v. Hickman, 415 F .Supp2d 1037 (N D Cal 2006), affd, 438 F Jd 926 (9th Cir. 2006), cert denied 126 S.Ct 1314 (2006), Exhibit 13, enjoined the state of

California fiom executing inmates under its lethal injection protocol (which is almost identical to

Tennessee's New April 30, 2007 Protocol) In granting an injunction, the Morales court made very

clear the appropriate inquiry "when analyzing a particular method of execution or the

11 Case 3:07-cv-00490 Document 2-1 Filed 05/04/2007 Page 11 of 55

implementation thereof, it is applOpriate to focus on the objective evidence of the pain involved in this case, the Court must determine whether Plaintiff is subject to an unnecessary risk of
unconstitutional pain or suffering" Id. at 1039 See also, Taylor v. Crawford, 2006 U S Dist LEXIS 42949 (W D Mo 2006)(finding that Missouri's lethal injection protocol will subject inmate to "an unacceptable I isk of suffer ing unconstitutional pain and suffering" and setting forth I evisions of the protocol for any future use), Exhibit 14; Fierro v. Gomez, 77 F 3d 301, 307 (9th Cir I 996)("Carnpbell also made clear that the method of execution must be considered in terms ofthe risk ofpain"); Campbell v. Wood, 18 F 3d 662,687 (9th Cir 1994)
I hus, "[fjor any individual challenging a death sentence, evidence ofbotched executions can only be put in terms ofplObability " TD. Mortenson, Earning the Right to be Retr ibutive Execution Methods, Culpability Theory, and the Cruel and Unusual Punishment Clause, 88 Iowa L. Rev. 1099, 1118-20 (2003). Any medical or quasi-medical procedure inherently callies a risk that a mistake or accident might cause unforeseen pain Thus, the Eighth Amendment does not require executioners to eliminate all possible risk ofpain or accident hom their execution plOtocols, See Reswebel, 329 US at 464; Campbell, 18 F..3d at 68 7, but requires executioners recognize foreseeableplOblems that could arise and implement a plOcedure that minimizes or at least accounts for that lisk
The New April 30, 2007 PlOtocol promulgated by TDOC this week and approved by the Governor ignored the very foreseeable plOblems with its lethal injection protocol and failed to implement any plOcedures at all to minimize or account for the unnecessary risk of exclUciating pain and terrifying death. The sodium thiopental does not sufficiently anesthetize any individual. The use ofpancur onium bromide is arbitrary, serves no legitimate interest, unreasonably risks the infliction of torture, and, at bottom, offends the dignity of humanity: Indeed, it cannot be used in Tennessee
12
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to kill a dog Its use violates equal protection The potassium chloride does not stop the heart. The
use of this mixture of chemicals causes a painful death experienced without total unconsciousness
Indeed, Tennessee's New ApIiI 30, 2007 Protocol has been described by Dr Mark Heath as a
"revised execution protocol that does little to nothing to assure [the TDOC] will reliably achieve
humane executions by lethal injection" See Declaration of Dr Mark Heath, Exhibit 2, 11 69.
Because the New April 30, 2007 Protocol engenders a serious risk of excruciating pain and torture
that other available methods simply do not, a TRO should be granted
a. The New April 30, 2007 Lethal Injection PlOtocol Creates a Tremendous Risk of Unnecessary Pain During Executions by Imposing Conditions Conducive to Botched Executions and Failing to Compensate for these Conditions
The New April 30, 2007 PlOtocol instructs that executions shall be canied out by means of
an IV line inserted into a vein and monitored and controlled remotely, from a separate room See
New April 30, 2007 Protocol, Exhibit I, pp 40-44 This line is inserted into a "usable" vein by an
EMT, with unspecified training and credentials Id at pp 32,41 Once a flow ofsaline solution has
been started and the inmates hands are taped in place, "the members of the IV team leave the
Execution Chamber" Id at p. 43 Dr Mark Heath discusses the risks associated with this
plOcedure:
The intravenous ("IV") catheters are to be inserted by a team of persons whom the TDOC represents as having, at some time, training or background as emergency medical technicians The TDOC has not presented any information which shows that these persons are currently licensed or credentialed as an emelgency medical technicians 01 whether placement of IV lines is cunently part of any team members' regular occupation or duties The protocol does not require that tbe injection team members be qualified in any particular way. The absence of currency with IV access plOcedures would rendel the IV team unqualified to perform IV access in an execution
13
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context
See Declaration of Dr Mark Heath, Exhibit 2, ~ 18 If the EMT cannot gain access to an inmate's
vein, the New April 30, 2007 Protocol instructs that a doctor will do a cutdown See New April 30,
2007 Protocol, Exhibit I, pp 41,67 There are serious dangers associated with a cutdown procedure:
When peripheral IV access is not possible, the TDOC will use a cut down to achieve venous access A "cut-down" is a complex medical procedure requiring equipment and skill that are not accounted for in Tennessee's protocol on cut down procedures. It has a very high probability of not proceeding properly in the absence of adequately trained and experienced personnel, and without the necessary equipment If done improperly, the "cut-down" process can result in very serious complications including severe hemonhage (bleeding), pneumothorax (collapse of a lung which may cause suffocation), nerve injury, and severe pain. It is well documented that lethal injection procedures in other states require the use of central intravenous lines. As is widely recognized in the medical community, administration of intravenous medications and the management of intravenous systems are complex endeavors with significant risks and complications
Cut-down procedurcs are an outdated method of achieving venous access for the administration of anesthetic drugs The cut-down procedure has been virtually completely supplanted by the "percutaneous" tcchnique for achieving central venous access The percutaneous technique is less invasive, less painful, less mutilating, faster, safer, and less expensive than the cut-down technique I have personally never used the cut-down technique to achieve intravenous access for drug delivery to a patient The cut-down technique is still used in clinical situations that are not pertinent to executions by lethal injection, including emergency scenarios where there has been extensive blood loss, and in situations involving very small pediatric patients and premature infants. These are the only situations in which I have seen colleagues perform cut-down procedures for the administration of drugs That Tennessee intends to use a cut down procedure on Mr. Workman ifit can not successfully place peripheral IVs after 4 attempts is unconscionable To use a cut-down as the backup method of achieving N access would defy contempor alY medical standards and would be a violation of any modern standard of decency. The ready availability of a superior alternative technique
14
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for achieving central IV access, should it be necessary, means that the I DOC's adherence to the outdated cut-down method would represent the gratuitous infliction of pain and mutilation to the condemned prisoner Most other states have abandoned the use of the cutdown procedure as a means ofobtaining IV access during executions See Declaration ofD!. Mark Heath, Exhibit 2, pp 21-23, ~~64-66
Afterveinous access or access to a vein through a cutdown is achiever, the Executioner, who
is never identified in the protocol in any way whatsoever, selects "either the right or left solution
set" See New April 30, 2007 Protocol, Exhibit 1, p 43 Upon the Warden's signal, the "Executioner
receives the first syringe from the member of the IV tcam and inserts and twists it into the extension
line" Id. The Executioner then proceeds to inject a total of eleven separate syringes containing the
three drug cocktail- 4 doses of sodium thiopental, followed by a saline flush, followed by 2 doses
of pancuronium bromide, followed by a saline flush, followed by 2 dose ofpotassium chloride, and
finally a saline flush. Id. at p 44 After the 11 syringes have been "pushed" into the extension line
(which is at least seven feet and one inch in length), the "Executioner signals the Warden that all of
the LIe's and saline have been administered" Id. at p. 43
Administering the lethal drugs in the manner dictated by the New April 30, 2007 Protocol
creates the risk that the sodium thiopental will not be administered properly and the inmate will not
be rendered fully unconscious by the time that the other two drugs are administered As Dr Heath
explains:
Ofnote, there is no description whatsoever of the actual mechanics of the administration of the dIUgs (page 65) Instead, the protocol elides the necessary step-by-step instructions, moving fiom "Ihe Warden gives the signal to proceed and the Executioner begins to administer the first chemical .... " to "F ollowing the completion ofthe lethal injection process " Ihis is non-sensical, and it is also a departure fiom the written protocols of many other states, which
15
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descr ibe in detail the intended mechanical steps to be taken during the sequence of injections While Tennessee's omission might in theOlY be acceptable if the dmgs were to be administered by an individual possessing the requisite demonstrated professional experience to undeltake this activity, it is in fact not acceptable if it is the case that it is being done by personnel who lack such experience and qualifications I know this flom, among othel things, my expclience teaching medical students and junior anesthesiology residents in the operating room Despite a significant degree of immelsion in the clinical setting, medical students and junim anesthesiology residents often initiate 01 make critical enors in their handling and use of intravenous tubing, injection sites, and syIinges Part of my job, as a pmctitioner in a teaching hospital, it to intercept such enms on the part ofjunim pelsonnel, to apprise them oftheir enOlS, and to instmct them on how to avoid, detect, and COli ect such ellm s. It is not acceptable, undel any standard, to pel mit pelsonnel who have not undergone such elbow-to-elbow tmining to perfOlm lethal injection, particulady in view of the inclusion of pancuronium and potassium in the cunently plOposed plOcedm e
Declaration of Dl. Mmk Heath, Exhibit 2, pp 5-6, ~ 9
The risk that inmates will be conscious dming their executions is in part inherent in the use
ofsodium thiopental itself; TDOC has chosen to use an ultrashort-acting anesthetic that is extremely
sensitive to enms in administration In medical situations, sodium thiopental is used only for
specific, expeditious tasks, and only by personnel who have considerable expertise in anesthesia
See Id., pp. 14-15, 'I~ SO-53 Monitming the effects of sodium thiopental, like those of other
ultrashOlt-acting anesthetics, requires considerable expertise in anesthesia Id Mmeovel, because
sodium thiopental is extremely unstable, it must be carefiJlly and properly mixed so that it does not
crystallize, a technical task that requires significant tmining in pharmaceutical calculations. Id at
~ 54. Thus, sodium thiopental's instability makes it more likely to be administered inconectly, and
its fast-acting plOpelties heighten the risk that implOper administmtion will result in ineffective
anesthesia and consciousness. Again, Dr. Heath writes:
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Thiopental is an ultrashOlt-acting barbiturate that is intended to be delivered intravenously to induce anesthesia In typical clinical doses, the drug has both a quick onset and short duration, although its duration of action as an anesthetic is dose dependant
When anesthesiologists use thiopental, we do so fm the purposes of tempmarily anesthetizing patients for sufficient time to intubate the trachea and institute mechanical SUppOlt of ventilation and respiration Once this has been achieved, additional drugs are administered to maintain a "surgical depth" or "surgical plane" of anesthesia (i .e. , a level of anesthesia deep enough to ensure that a surgical patient feels no pain and is unconscious) The medical utility of thiopental derives fiom its ultrashOit-acting properties: if unanticipated obstacles hinder or prevent successful intubation, patients will likely quickly regain consciousness and resume ventilation and respiration on their own
The benefits of thiopental in the operating room engender serious risks in the execution chamber The duration of unconcsiousness provided by thiopental is dose-dependent. However, if the intended amount of thiopental fails to reaches the condemned inmate's brain (as can occur as a result of an infiltration, leakage, mixing enOl, or other causes), and the condemned inmate receives a near surgical dose of thiopental, the duration of narcosis will be brief and the inmate could reawaken during the execution process Then, a condemned inmate in Tennessee would suffer the same fate that apparently befell Mr Angel Diaz in FlOlida who was intended to receive a 5 gram dose ofthiopentaljust as Mr WOlkman is intended to receive, but who did not, and then apparently experienced a conscious ol semi-conscious response to the execution process
Many foreseeable situations exist in which human ol technical elIOlS could result in the failure to successfully administer the intended dose The TDOC's procedure both fosters these potential problems and fails to provide adequate mechanism for recognizing these problems, and it does these things needlessly and without legitimate reason
Id at pp. 14-15, ~~50-53
The danger of improper administration of sodium thiopental is exacerbated by the fact that
the New April 30, 2007 Protocol does not require medically trained personnel to supervise or assist
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in any way in the medical tasks necessmy to prepare for the execution or during the execution See
New April 30, 2007 Protocol, Exhibit 1, p. 32 (stating only that the person who inserts the IV shall
have either some unspecified training, or be "authorized by law" to initiate the procedure) These
critical, medical tasks include: mixing the sodium thiopental solution; setting up the IV line and
associated equipment in order to ensure that fluids do not leak and are not misdirected; finding a
usable vein aud properly inserting the IV line in the proper direction into the vein; and, verifying that
the drugs me flowing into the inmate's vein rather than into SUII ounding tissue All ofthese critical,
medical tasks require a high degree of specialized training which the New April 30, 2007 fails to
acknowledge or account for in any way:
It is my opinion that, to reasonably minimize the risk of severe and unnecessmy suffering during the IDOC's execution by lethal injection, there must be: proper procedures that arc clear and consistent; qualified personnel to ensure that anesthesia has been achieved prior to the administration of pancuronium bromide and potassium chloride; qualified personnel to select chemicals and dosages, set up and load the syringes, administer "pre-injections," insert fhe IV catheter, and perform the other tasks requir ed by such procedures; and adequate inspection and testing ofthe equipment aud apparatus by qualified personneL The TDOC's procedures for implementing lethal injection, to the extent that they have been made available, provide for none of the above
Id. at '!l67
There me very serious and foreseeable problems with the New April 30, 2007 Protocol's
failure to provide for any medically trained and qualified personnel to administer sodium thiopental:
Because of these foreseeable problems in administering anesthesia, in Tennessee and elsewhere in the United States, the provision of auesthetic care is performed only by personnel with advanced training in the medical subspecialty of Anesthesiology The establishment of a surgical plaue of anesthesia is a complex task which can only reliably be performed by individuals who have completed the
18
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extensive requisite training to permit them to provide anesthesia services See Practice Advisory [or Intraoperative Awareness and Brain Function Monitor ing, 104 Anesthesiology 847, 859 Appendix 1 (Apr. 2006) (recommending the use of "multiple modalities to monitor depth of anesthesia') Ifthe individual providing anesthesia care is inadequately trained or experienced, the risk of these complications is enormously increased. The President of the American Society ofAnesthesiologists, writing about lethal injection, recently stated that "the only way to assure [a surgical plane of
anesthesia1 would be to have an anesthesiologist prepare and
administer the drugs, carefully observe the inmate and all pertinent monitors, and finally to integrate all this information" Orin F Guidry, MD., Messageftom the President Observations Regarding Lethal Injection (June 30, 2006)
In Tennessee and elsewhere in the United States, general anesthesia is administered by physicians who have completed residency training in the specialty ofAnesthesiology, and by nurses who have undergone the requisite training to become Certified Registered Nurse Anesthetists (CRNAs). Physicians and nurses who have not completed the requisite training to become anesthesiologists or CRNAs are not permitted to provide general anesthesia.
In my opinion, individuals providing general anesthesia in the Tennessee prison should not be held to a different or lower standard than is set forth for individuals providing general anesthesia in any other setting in Tennessee Specifically, the individuals providing general anesthesia within Tennessee's prisons, including during execution procedures, should possess the experience and proficiency of anesthesiologists andlor CRNAs Conversely, a physician who is not an anesthesiologist or a nurse who is not a CRNA or any person who lacks the requisite training and credentials should not be permitted to provide general anesthesia within Tennessee's prisons (or anywhere else in Tennessee orthe United States).
There is no evidence, at this time, that any person on the TDOC's injection team has any training in administering anesthesia, or, if personnel are given training, what that training might be. The absence of any details as to the training, certification, or qualifications of injection personnel raises critical questions about the degree to which condemned inmates risk suffering excruciating pain during the lethal injection procedur e. The great maj or ity ofnurses ar e not trained in the use of ultrashort-acting barbiturates; indeed, this class of drugs is essentially only used by a very select group of nurses who have
19
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obtained significant experience in intensive cate units and as nurse anesthetists Very few patamedics are trained or expelienced in the use ofultrashort-acting batbiturates and/or pancuronium. Based on my medical training and experience, and based upon my research of lethal injection procedures and practices, inadequacies in these ateas elevate the risk that the lethal injection procedure will cause the condemned to suffer excruciating pain during the execution process Failure to require that the injection team have training equivalent to that of an anesthesiologist or a CRNA compounds the risk that inmates will suffer excruciating pain during their executions
In addition to apparently lacking the training necessaty to perform a lethal injection, the TDOC's protocol imposes conditions that exacerbate the foreseeable risks ofimproper anesthesia administration desclibed above, and fails to provide any procedures for dealing with these risks Perhaps most distur bingly, the protocol makes no mention of the need for effective monitoring of the inmate's condition or whether he is anesthetized and unconscious After IV lines ate inserted and the execution begins, it appeats that the injection team will be in a different room fiom the prisoner, and thus will not have the ability to monitor the IV deliver system and catheter sites as they would if they were at "the bedside" Accepted medical practice, however, dictates that trained personnel ate physically situated so that they can monitor the IV lines and the flow of anesthesia into the veins through visual and tactile observation and examination. The apparent lack of any qualified personnel present in the chamber during the execution thwarts the execution personnel from taking the standard and necessary measures to reasonably ensure that the thiopental is properly flowing into the inmate and that he is properly anesthetized prior to the administration of the pancuronium bromide and potassium Other states have taken steps to place personnel with medical backgrounds actually within the execution chamber for the purpose of monitoring the IV delivery system during the injection process
In my opinion, having a properly equipped, trained, and credentialed individual examine the inmate after the administration of the thiopental (but prior to, dLUing, and after the administration of pancur onium, until the prisoner is pronounced dead) to verify that the inmate is completely unconscious would substantially mitigate the danger that the inmate will suffer excruciating pain during his execution. This is the standatd ofcate, and in many states the law, set forth for dogs and cats and other household pets when they subjected to euthanasia by potassium injection Yet the TDOC protocol does
20
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not apparently provide for such verification.
Indeed, it appears that departments of correction around the country are now agreeing that some assessment ofanesthetic depth is requir ed to inswe a humane execution As a result of my participation in lethal injection litigations around the country I have become aware that the State of Indiana and the State of F100ida now concede that some attempt at measwing or assessing anesthetic depth should be perfOlmed Additionally, in Missowi, a federal district judge has 01 der ed that an appr opriately qualified person assess anesthetic depth. While Judge Fogel in California has not, to my under standing, issued a final decision regarding the evidence presented to him, it is clear from his discussion of the case that he recognizes that the use of drugs that cause great pain 01 suffering (such as pancuronium and potassium) places a heightened burden on the execution team and the state to properly monitor and maintain adequate anesthetic depth.
Declaration of Dr Mark Heath, Exhibit 2, ~'157-63
In addition, the New April 30, 2007 Protocol makes several of the above tasks even mOle
prone to mistakes by deviating from established medical pr actice Further, because the drugs ar e
administered from another room, IV line extensions must be used, (see New April 30, 2007 Protocol,
Exhibit I, p 40), which increases the risk that a flaw or kink in the IV line will disrupt the flow of
drugs. A reasonable medical standard of care would not permit these unnecessary line extensions
If the drugs ar e not at the bedside, which they ar e not in Tennessee, but are instead in a different room then it will be impossible to maintain visual surveillance of the full extent of IV tubing so that such leaks may be detected. The configuration of the death chamber and the relative positions of the executioners and the inmate in Tennessee will hinder or preclude such surveillance, thereby causing a failure to detect a leak. Leaking IV lines have been noted in executions in other states. The induction of general anesthesia in the medical context, and I believe in the veterinary context, is always a "bedside procedure"; it is never conducted by the administration of drugs in tubing in one room that then is intended to travel into the body of a person in another room
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The risk of inadequate anesthesia is compounded by the fact that the New April 30, 2007 Protocol requires that only the Warden, who is not a qualified medical pIOfessional, be present in the execution chamber when any ofthe dmgs are administered. The protocol thus prevents qualified personnel fIOm obtaining any SOIt of visual OI other verification that the dmgs are actually being administered to the inmate, OI that the sodium thiopental anesthetic has taken effect PIOper monitOIing of the flow of fluids into the vein requires a clear view of the IV site, and also tactile examination of the skin swrounding the IV site to verify skin firmness and temperature. See Declaration of Dr Mark Heath, Exhibit 2, pp. 15-18, ~~ 54 (a)-(l)
Ptoper monitOIing of the inmate would also necessitate that a person trained specifically in assessing anesthetic depth closely observe the inmate at all times after the sodium thiopental is administered. Only persons trained in anesthesia are able to assess pIOperly whether the inmate has attained the degree of unconsciousness necessary to render him insensitive to pain Id. at ~~ 21-23 For this reason, the American Veterinary Medical Association (AVMA) requires that persons
euthanizing animals be "competent in assessing depth [of anesthesia1apPlOpriate for administration
ofpotassium chloride" See 2000 Report ofthe AVMA Panel on Euthanasia, 218 J Am Veterinary Med Ass'n 669, 681 (2001), Exhibit 16 Similarly, Tennessee requires extensive training in the use of anesthesia fOI all technicians authOIized to euthanize animals
Thus, the New April 30, 2007 Protocol, by requiring that non-medical personnel remotely inject an lillstable dIUg into inmates without pIOper monitOIing, creates conditions that are highly conducive to serious enors that could cause the sodium thiopental to be administered impIOperly In the face of this danger, the ptotocol fails to take even the most IUdimentary steps towards minimizing the obvious potential problems Indeed, the protocol is stunning in its complete failure
22
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to acknowledge any Iisk Ol potential problem other than tampering with the lethal drugs in the days
leading up to the execution See New April 30, 2007 Protocol, Exhibit 1, pp 36-37
Examples ofthe New April 30, 2007 Protocol's filihne to account for the very risks that it
creates are numerous Those risks include: Enors in Drug Preparation; EIlOlS in Labeling of
Syringes, ErrOl in Selecting the Correct Syringe, Enor in Conectly Injecting the Drug into the
Intravenous Lin, The IV tubing may leak, Incouect Insertion of the Catheter, Migration of the
Catheter, Perforation Ol Rupture Ole Leakage of the Vein, Excessive Pressure on the Syringe
Plunger, EIlOlS in Securing the Catheter, Failure to Properly Loosen Ol Remove the Tourniquet,
Impaired Delivery Due to Restraining Straps. See Declaration of Dr Mark I-Ieat, Exhibit 2, pp. 15-18
'I~ 54(a)-(I) Dr. Heath concludes:
These types of drug administration problems are not uncommon in the practice of medicine. A number of medical publications detail exactly these types of administration issues FOl example, the National Academy of Sciences Institute on Medicine has just published the repOlt of the Committee on Identifying and Preventing Medication Enors, which details the rates of drug preparation and administration en Ol s in hospital setting and concludes "[e]UOlS in the administration onv medications appear to be particularly prevalent" PREVENTING MEDICA TlON ERRORS: QUALITY CHASM SERIES 325-60 (Philip Aspden, Julie Wolcott, J Lyle Bootman, Linda R Cronenwett, Eds 2006); id at 351 Likewise a recent study shows that "dlUg-related enors occur in one out of five doses given to patients in hospitals "See Bowdle, L A, Drug Administration Error 5 from the ASA [Am Soc Ane.lthesiologists] Closed Claims Project, 67(6) ASA NEWSLETTER, 11-13 (2003) This study recognizes that neuromuscular blockers have been administered to awake patients and to those who have had inadequate doses ofgeneral anesthetic Id
Exhibit 2, P 18, '155
Despite the New April 30, 2007 Protocol's insistence on removing all personnel from the
execution chamber before any drugs are administered, the protocol does not anticipate and provide
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for the problems that could arise as a result of this policy There is no procedme fOl testing Ol
verifying the efficacy of the extended IV tubing NOl is there a plOcedme for entering the chamber
dming the execution should any ofthe equipment malfunction Ol the imnate somehow indicate that
something has gone awry.
Finally, and most distmbingly, the protocol apparently does not require execution personnel
to verify in any manner, even through the windows of the execution chamber, that the inmate has
been rendered unconscious by the sodium thiopental
Because of the potential fOl an excruciating death created by the use of potassium chlOlide and the risk of conscious asphyxiation created by the use ofthe pancmonium bromide, it is necessary to induce and maintain a deep plane of anesthesia. The circumstances and envilOmnent under which anesthesia is to be induced and maintained in a Tennessee execution create, needlessly, a significant risk that imnates will suffer It is my opinion, stated to a reasonable degree of medical certainty, that the lethal injection plOcedmes selected by the TDOC subject condemned imnates to an increased and mmecessary risk of experiencing excruciating pain in the course of execution Presumably, because of the TDOC's awareness of the potential fOl excruciating pain evoked by potassium, the protocol plans for the provision of general anesthesia by the inclusion of thiopental When successfully delivered into the circulation in sufficient quantities, thiopental causes sufficient depression of the nervous system to permit excruciatingly painfill procedmes to be performed without causing discomfOlt or distress. Failme to successfully deliver into the circulation a sufficient dose ofthiopental would result in a fililme to achieve adequate anesthetic depth and thus failme to block the excruciating pain The TDOC's procedmes do not comply with the medical standard of care for inducing and maintaining anesthesia prior to and dming a painful plOcedme Likewise, the TDOC's procedmes are not compliant with the guidelines set forth by the American Veterinary Medical Association fOl the euthanasia of animals
Declaration of Dr Mark Heath, Exhibit 2, p. 14, 'I~ 47-49
Thus, despite the foreseeable risks created by the protocol and described above, the New
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April 30, 2007 Protocol simply does not acknowledge, much less provide for, the possibility that the

five-gram dose of sodium thiopental will fail to render the inmate unconscious

The New April 30, 2007 Protocol thus both creates an unacceptable quantum ofrisk that the

inmate will not be anesthetized and therefore will suffer exclUciating pain during his execution, and

also fails utterly to account for these obvious contingencies and instlUct personnel on how to react

to or prevent them

b

The Use of Pancuronium Bromide In Combination With Sodium

Thiopental Creates A Significant Risk That Inmates Will Be

Conscious, But Unable To React During Their Executions

In light of the fact that sodium thiopental is an ultra··short acting anesthetic, and the New

April 30, 2007 Protocol creates the grave risk that the sodium thiopental will not be properly

administered, it is critical that an inmate be able to alert execution personnel should he regain ~ or

never lose- consciousness and that execution personnel have the ability to ascertain whether an

inmate is properly anesthetized. Yet the use ofpancur onium bromide in combination with sodium

thiopental effectively prevents an inmate from alerting anyone in any way to the fact that he is

conscious and experiencing exclUciating pain and prevents anyone, even a trained anesthesiologist,

f10m ascertaining whether the inmate is properly anesthetized It is for this very reason that the use

of pancuronium bromide is prohibited for use on animals Despite the grave dangers and illegality

of its use, the New April 30, 2007 Protocol incorporates pancuronium bromide even though it serves

no legitimate purpose within its lethal injection process See New April 30, 2007 Protocol, Exhibit

I, p. 35

Panclllonium is a neuromuscular blocking agent that blocks nerve cells fiom interacting with

muscle tissue, therefore paralyzing the inmate's muscles, inciudingthose ofthe chest and diaphragm

25

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A patient gIven pancUlomum bromide alone would slowly suffocate to death; thus, the unanesthetized experience of the effects of pancUlomum bromide would in itself involve extIaordinmy suffering, as the inmate struggled to breathe The drug does not affect the brain or nerves themselves, however, so an unanesthetized patient would remain completely conscious, but due to the paralysis would be completely unable to communicate either verbally or by movement the filct that he is conscious. See Declaration of Dr Mark Heath, Exhibit 2, ~~ 37-39
Pancuronium bromide also prevents observers from determining whether an inmate is conscIOus According to Dr Mark Heath, the drug's paralytic effect is so complete that it would be difficult for even an anesthesiologist to assess consciousness. See Declaration of Dr Mark Heath, Exhibit 2, ~ 38 Thus, even if the New April 30, 2007 Protocol provided some mechanism by which personnel could monitor the inmate's consciousness (which it does not), the use of pancUlonium bromide all but enSUles that it would be impossible to determine visually whether the inmate is still able to feel pain Should an inmate retain or regain consciousness after the sodium thiopental is administered, the inmate would suffer slow suffocation as well as the excruciating pain of the potassium chloride, all while being completely paralyzed and unable to communicate. Id at ~ 42
It is precisely this risk of the combination of ineffective sodium thiopental and paralyzed consciousness from pancUlonium bromide that has led at least nineteen (19) states to prohibit the use of a sedative in conjunction with a neUlomuscular blocking agent like pancUlonium bromide to euthanize animals. See Beardslee, 395 F 3d at 1073 & n.9 (listing the relevant state laws and noting that this evidence is "somewhat significant") In 200 I, the state of Tennessee declared as inhumane - and illegal-the use of pancUlonium bromide or any other neUlomuscular blocking agent on nonlivestock animals See Tenn Code Ann. §44-17-303(e); 44-17-303(j)(criminal sanctions for
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violation of Humane Death Act: any substance which "acts as a neUlomuscular blocking agent may not be used on any nonlivestock aniumal for the pUlpose of euthanasia."), Exhibit 15 The AVMA, moreover, has promulgated guidelines that prohibit the use of a sedative with a drug like pancuronium bromide See 2000 Report of the AVMA Panel on Euthanasia, 218 J Am Veterinary Med. Ass'n 669 (2001), Exhibit 16, p 681 AVMA also prohibits the use of neuromuscular blocking agents alone, stating that because the drugs cause "respiratory arrest before loss of conSCIOusness, . the animal may perceive pain and distress after it is immobilized." Id at p 696, App 4 The fact that so many states and the nation's leading veterinary association have condemned as inhumane the use of anesthetics and neuromuscular blocking agents in tandem is persuasive evidence that this combination of drugs is not consistent with evolving standards of decency As a result, given that the Eighth Amendment prohibits the same infliction of unnecessary pain that cannot be imposed on household pets and other animals, the veterinary avoidance ofthis method of euthanasia is compelling
Despite the evidence that employing pancUlonium bromide is not consistent with basic standards of care for animals, and the fact that the use of panCUI onium bromide increases the risk that an inmate will suffer unnecessary pain, the New April 30, 2007 Protocol incorporates
pancUlonium bromide, alleging that it "assists in the suppression of breathing and ensure[s1death"
See New April 30, 2007 Protocol, Exhibit 1, p. 35 However in the Defendants' Report, it is clear that pancUlonium bromide is used simply "because it speeds the death process, prevents involuntary muscular movement that may interfere with the functioning ofthe IV equipment, and contributes to the dignity of the death process" See Tennessee Report on Administration of Death Sentences, Exhibit 7, p. 7. What Defi'mdants do not say either in their Report or in the New April 30, 2007
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Protocol is that a state court judge has already determined that the use of pancuronium bromide

(pavulon) in Tennessee's lethal injection protocol is arbitrary:

[T]he use of Pavulon is . unnecessary [T]he State [has] failed to demonstrate any reason for its use. The record is devoid ofproofthat the Pavulon is needed Thus, the Court concludes that . the State's use of Pavulon is in legal terms 'arbitrary.'

Abdur'Rahman v. Sundquist, No. 02-2236-III, In The Chancery Court For The State Of Tennessee,

Twentieth Judicial District, p 13 (June 2, 2003), Exhibit 17

The paucity of the record accords with Dr Heath's opinion that pancuronium bromide serves

no legitimate purpose in the execution procedure while greatly increasing the risk of an inmate's
'1 suffering and undetected agony See Declaration of Dr Mark Heath, Exhibit 2, 43 The

Defendants' use of pancuronium bromide to kill Mr Workman violates the Eighth Amendment

Again, Mr. Workman has shown entitlement to relief on the merits

c

Potassium Chloride, As Contemplated In The New April 30, 2007

Protocol, Is Wholly Ineffective To Cause Cardiac Arrest

According to Dr James Ramsey, a licensed clinical perfilsionist at the Department ofCardiac

and Thoracic Surgery at Vanderbilt University Medical Center in Nashville, Tennessee, the

potassium component of the New April 30, 2007 Protocol (100 mg/mL of a 2mEq/ml

concentrate) '(See New April 30, 2007 Protocol, Exhibit 1, p 35), "is wholly ineffective in causing

electrical arrest of the human heart." See Affidavit of Dr James Ramsey, Exhibit 18, p 1 Dr

Ramsey opines that "it is a pathophysiological impossibility, based upon well-established and

accepted mathematical equations, for the heart to succumb to electrical arrest due to the potassium

'The New April 30, 2007 Protocol's expression otthe potassium chloride dosage is not consistent with scientific or pharmacological principles See Affidavit of Dr James Ramsey, Exhibit 18, p 2
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component of the lethal injection protocol" Instead, any cardiac arrest that may OCCUI during an execution by lethal injection under the New April 30, 2007 Protocol, "is entirely due to suffocation and lack of oxygen delivery, and not electrical arrest due to potassium injection" Id. at p 3 The suffocation and lack ofoxygen delivery is caused by the paralysis induced by the use ofpanCUI onium bromide
The ineffectiveness of the potassium chloride is the result of two false assumptions on the part of Defendants. First, the manner in which the potassium is delivered to the imnate in the New April 30, 2007 Protocol - IV injection - assumes, inaccurately, that "potassium solution in high concentrations would reach the coronary arteries and effect an arrest" Id. at p 8 However, as Dr Ramsey opines, "the solution would necessarily have to pass through the lungs (which have the surface area of approximately that of a tennis cOUlt), dUling which potassium concentrations would fall dramatically" Id.
Second, Defendants have assumed that the dosage of potassium chloride to be injected according to the New April 30, 2007 Protocol will result in death. However, as Dr Ramsey has concluded, the amount and concentration of potassium delivered "cannot result in the minimum potassium concentration of 164 mEq/L being achieved that is required to arrest the electromechanical function of the heart" See Affidavit ofD!.. James Ramsey, Exhibit _, pp 8-9. In support of Dr Ramsey's conclusion, the resultant potassium concentrations post-mortem for Robert Glen Coe, who was killed under the prior Tennessee lethal injection protocol which utilized a similar dosage of potassium chloride, "indicates an extracellular potassium concentration of 9 mEq/L, far short ofthe required minimum concentration of 16 4 mEq/L to cause electromechanical arrest of the heart" rd. at p 9
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As a result, where the potassium chloride is not sufficient in either the manner of delivery

or dosage to cause cardiac anest, it is clear that under the New April 30, 2007 Protocol an inmate

will die an excruciating painful and honifying death by asphyxiation because ofthe paralysis caused

by pancuronium bromide, while suffering the severely painful effects of the potassiurn chloride

rhus, the Defendants' improper and unscientific use ofpotassium chloride in their attempts to kill

Mr Workman violates the Eighth Amendment Mr Workman has shown entitlement to relief on

the merits.

d

The Risk Created By The New April 30, 2007 Protocol Has Been

Realized In Executions In Numerous Other States

While the New April 30,2007 Protocol has obviously not been used in Tennessee since it

was promulgated just three days ago, the New April 30,2007 Protocol is essentially identical to the

lethal injection protocols used in other states and jurisdictions, the use of which has resulted in

numerous botched executions As a result, there is ample evidence that the New April 30, 2007

Protocol will cause an inmate to experience urmecessary pain during his or her execution Both

execution records and witnesses' accounts of these executions provide evidence that is consistent

with consciousness following the administration of the sodium thiopental and during the

administration of the pancuronium bromide and potassium chloride

I.

Florida

Just foUl months ago in Florida, on December 13,2006, using a protocol essentially identical

to Tennessee's New April 30, 2007 Protocol, Mr. Angel Diaz did not get an effective amount of

sodium thiopental because the IV lines were improperly seated in his veins with through and tluough

punctures As a resuit, none of the materials injected went to the right place Instead, the drugs

30 Case 3:07-cv-00490 Document 2-1 Filed 05/04/2007 Page 30 of 55

entered his bloodstream first through his flesh and muscle tissue. This plOcess caused foot-long

chemical bums on both arms flOm the sodium thiopental DUling the execution, observers repOited

that Mr. Diaz moved and tried to mouth wOlds It took 34 minutes and 14 syringes of chemicals for

Mr Diaz to die, during which he was clearly in pain, struggling for breath and grimacing See Chris

Tisch, Executed Man Takes 34 Minutes To Die, www. Tampabay.com. December 13, 2006, Exhibit

19; Chris Tisch, Second Dose Needed To Kill Inmate, www Tampabay.com, December 14,2006;

F10lida Commission RepOlt, Exhibit 20, pp. 8-9

Following the Diaz execution, Govemor Bush OIdercd that all executions be stayed while a

committee undertook a review of the Diaz execution and of lethal injection protocols in Florida in

general Executions remain stayed in Florida under that order See FlOlida Commission RepOlt,

Exhibit 21, p. 2 Tennessee's New April 30, 2007 Protocol does not differ in any material respect

from that use in the botched Diaz execution

11

California'

Witness accounts of the 2002 execution of Stephen Wayne Anderson in Califomia suggest

that Mr .Anderson was not properly anesthetized when he died. The execution took over3 0 minutes,

and during that time Mr Anderson's chest and stomach "heaved more than 30 times." See

Declaration of Margo Rocconi, Exhibit 22, ~ 6. AccOiding to Dr. Mark Heath, the typical reaction

to sodium thiopental is yawning, drawing one or two deep breaths, or visibly exhaling so that the

cheeks puff out See Declaration of Dr Mark Heath (Califomia), Exhibit 23, '145 Irregular heaving

of the chest is not consistent with the depression of the central nervous system caused by sodium

'The United States District COUIt for the NOithem District of Califomia has stayed executions in Califomia. See Morales v. Hickman, No 06-00219 (N D Cal) Califomia is pUipOitedly releasing new execution protocols on May 15, 2007

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thiopental Id. Rather, chest heaving is indicative of labored respiratory activity, which in turn strongly suggests that Mr Anderson was conscious, and indeed may have been laboring against the paralyzing effect of the pancuronium bromide Id.
The execution log of Manuel Babbit's 1999 execution also indicates that something went wrong during the process. A minute after the pancuronium bromide was administered, Mr Babbit had shallow respirations and brief spasms in his upper abdomen - again suggesting an attempt to fight against the effects of the pancuronium bromide See id. at ~ 47; Execution Log of Manuel Babbit, Exhibit 24. In addition, Mr Babbit's heart rate remained constant until the potassium chloride was administered; had the full five grams ofsodium thiopental reached Babbit, his heart rate would have changed significantly. See Declaration ofDr Mark Heath (California), Exhibit 23, ~ 47
The execution logs of William Bonin's 1996 execution also reflect irregularities that may have caused Bonin to die in excruciating pain. Mr Bonin was given a second dose of pancur onium bromide for reasons that remain unclear, even though the initial dose would paralyze an inmate for several hOUlS See Execution Log of William Bonin, Exhibit 25; Declaration of Dr Mark Heath (California), Exhibit 23, ~ 46 The rcdundant dose raises questions about whether Bonin received the initial doses ofsodium pentothal and pancuronium bromide; whether the injection team believed that he was still conscious; and, more broadly, whether such an irregularity is indicative ofthe lack of training or judgment of injection personnel. Id
Tennessee's New April 30, 2007 Protocol does not differ in any material respect fiom that used in the California cxecutions, including 5 grams of thiopental
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111 NOith Cmolina] In Brown v. Beck, No 06-3018, the District Court ofthe Eastern District ofNOIth Cmolina, Western Division, had before it toxicology data following fOUI executions inNOIth Cmolinashowing low post-mOitem levels ofsodium thiopental. North Cmolina's protocol calls for a 3 gram dosage ofthe drug, to be followed by pancUlonium bromide and potassium chloride The toxicology data contradicted the opinion of the State's experts as to the expected concentration that would be present in a man of average size after having been given a dose of 3000 mg of sodium thiopental. See Brown v. Beck. 2006 U.S. Dist LEXIS 60084 (E DNC April 7, 2006)(denying preliminary injunction, but conditioning future executions on presence of an anesthesiologist), Exhibit 26 Also in Brown, the District Court had before it affidavits from attorneys present at recent executions who had witnessed the condemned inmates writhing, convulsing, and gagging when exccuted. Again, such witness accounts were inconsistent with a sufficient dose of sodium thiopental having been successfully delivered to the brain such that the condemned inmate would not feel pain. F01 instance: During the lethal injection of Willie Fisher, "Mr Fisher appemed to lose consciousness around 9: 00 p ill but subsequently began convulsing he looked as though he was trying to catch his breath but could not and his eyes were open as his chest heaved repeatedly." He was not
'Executions in NOith Carolina have also been stayed by NOith Carolina state courts until physicians are permitted to pmticipate in executions by lethal injection See Robinson and Thomas v. Beck, No 07-CVS-00II09 (Wake County, NC)(Ordering that no executions will proceed in NOith Cmolina until physicians agree to pmticipate or a protocol is developed that is satisfactory and does not require doctor participation); North Carolina DOC v. North Cmolina Medical Bomd, 07-CVS-003574 (Wake County, NC) (DOC suing medical bomd fm position statement that "physician participation in capital punishment is a departure fiom the ethics ofthe medical profession"and "which adopt[ed] and endOlse[d] the provisions of the American Medical Association Code of Medical Ethics Opinion No.2 06. ")
33
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pronounced dead until 9:21 pm. See Brown, supra at *17
During the lethal injection of Timmy Keel, MI. Keel's body was "twitching and moving about fm approximately ten minutes" after the injection ofthe chemical cocktail Id.
DUling the lethal injection of John Daniels, Mr Daniels convulsed violently after the administJation ofthe chemical cocktail "He sat up and gagged" Witnesses "could hear him through the glass . " "A shOlt time later, [Mr Daniels] sat up and gagged and choked again, and struggled with his arms under the sheet He appeared to [witnesses] to be in pain. He finally lay back down and was still " Id
During the lethal injection of Eddie Ernest Hartman, Mr Hartman appeared to suffer for at least five minutes after the lethal injection "Eddie's throat began thrusting outward and collapsing inwar d His neck pulsed, protruded, and shook repeatedly Eddie's chest at fir st pulsated fi equently, then intermittently, and at least twice I saw Eddie's chest heave violently. Throughout the execution, Eddie's eyes were partly open while his body relentlessly convulsed and contOlted " See
Brown, wpra at *16
As the District Court ther e found, "evidence ofthe problems associated with these executions while, perhaps, not clearly indicative ofthe protocol, does raise some concerns about the effect of North Carolina's protocol" See Brown, supra at *18 (concluding "it would be inappropriate to allow Defendants to proceed with Mr Brown's execution under the current protocol considering the substantial questions raised")
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IV Ohi04 During the May 2006 lethal injection ofJoseph Lewis Clark, execution team members took over twenty minutes to insert one IV catheter into MI Clark's arm. According to protocol two cathetels were necessary, but the team proceeded with only one After the single IV was inserted and the chemicals began to flow, Mr Clark remained breathing, legs moving, arms strapped down After minutes, he sat up several times and told executioners, "It's not working, it's not working" Minutes later, Mr Clark raised up again and said, "can't you just give me something by mouth to end this?" At that point, the team closed the curtain, and witnesses heard groans and moans fiom Mr Clark as ifhe was in agony. Witnesses leported that the cries ofpain lasted for about five or ten minutes and were followed by snores from Mr. Clark. See Adam Liptak, Trouble Finding Inmate's Vein Slows Lethal Injection in Ohio, New York Times, May 3, 2006, Exhibit 27. The botched execution of Mr. Clark demonstrates graphically and horrifically how an execution that appeared completely normal and routine at the outset can rapidly go honibly wrong Ohio's protocol calls fOI 2 grams of sodium thiopental, following by pancuronium bromide and potassium chloride The federal District Court for the Southem District of Ohio found that "evidence raises grave concems about whether a condemned imnate would be sufficiently anesthetized under Ohio's lethal injection protocol prior to and while being executed" See Cooey v. Taft, 430 F Supp 2d 702, 707 (S.D. Ohio April 28, 2006)(granting preliminary injunction), Exhibit 28
4PlaintiffS involved in the lethal injection litigation in Ohio are cUlIently litigating a statute oflimitations issue in the Sixth Cilcuit Court of Appeals which has resulted in a stay of execution there for many Plaintiffs See Cooey v. Strickland, No 05-4057 (6th Cir March 2, 2007).
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v

Arkansas'

The Arkansas lethal injection protocol calls for a 2 gram dose of thiopental, followed by

pancUlonium bromide and potassium chloride Using this protocol, the Department ofConections

there has pr esided over several executions where "inmates remained conscious and suffered pain

during their executions" See Nooner v. Nonis, No 06-00110 (E D Ark), June 26, 2006 Order

(granting a prcliminary injunction), p 4, Exhibit 29

Ronald Gcne Simmons was executed in Arkansas by lethal injection on June 25, 1990 The

administration of the lethal chemicals began at 9:02 p m Between 9:02 and 9:04 pm., according

to an eyewitness, Mr Simmons appeared to nod offinto unconsciousness. However, "at 9:05 p m

he called out 'Oh! Oh!' and began to cough sporadically as though he might be having difficulty

breathing. DUling the next two minutes, he coughed slightly, approximately 20 times, each cough

heaving his stomach slightly and causing the gurney to shake a little." See Bill Simmons, Stoic

Mwderer Meets His Fate By Quiet Means, Arkansas Democrat Gazette, June 26, 1990 at 9A,

Exhibit 30 Mr Simmons became still at 9:07 pm. after which his face and arm tUlned first blue and

then pUlple. An ADC employee twice appeared to adjust the IV tube in Mr Simmons' arm, and not

until 9:19 p m. was Mr. Simmons pronounced dead by the coroner Id. As Dr Mark Heath has

indicated, the chest heaving is indicative of labored respiratory activity, which in turn strongly

suggests that Mr Simmons was conscious, and indeed may have been laboring against the paralyzing

effect ofthe pancUlonium bromide. See Affidavit of Dr Mark Heath (Arkansas), Exhibit 31,1144

Two years later, the execution of Ricky Ray Rector in Arkansas in January of 1992 took 1

'The United States District COUlt for the Eastern District of Arkansas, stayed executions to allow further investigation into the constitutionality of the lethal injection protocol. See Nooner, et al., v. Norris, No 06-00110 (E D Ark )
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hour and 9 minutes Mr Rector's hands and arms were punctured no less than 10 separate times searching for a suitable vein. Ultimately, someone on the execution tearn did a cut-down into his arm Witnesses could hear his moans as they looked for a vein. See Sonja Clinesmith, Moans Pierced Silence During Wait, Arkansas Democrat Gazette, January 26, 1992, at 1B, Exhibit 32; Ron FOUlnier, 13 Outsiders View Death OJ Rector, Witnesses Listen, Wait Beyond Curtain, Arkansas Democrat Gazette, January 26, 1992, at 4B, Exhibit 33 Rectortalked after 2 minutes and then after 5 minutes his lips were still moving rapidly - as ifhe was hying to draw shallow breaths. He was not pronounced dead until 10:09 p m See Joe Farmer, Rector, 40, Executed for Officer's Slaying, Arkansas Democrat Gazette, January 25,1992, at 9A, Exhibit 34; Fournier, Exhibit 33
On May 7, 1992, Steven Douglas Hill was executed in Arkansas His execution began at 9:02 pm. His eyes closed one minute later, but shortly afterwards he had what witnesses described as "a 'seizUle' arching his back with his cheeks popping" See Andy Gotlieb and Linda Satter, Hill Dies By Injection for '84 Police Killing, Arkansas Democrat Gazette, May 8, 1992, at 17A, Exhibit 35. He was visibily gasping for air, and even though he was strapped down to the gurney his chest was heaving against the wide belt that covered his chest The seizure ended at 9:04 p m and Mr Hill was pronounced dead at 9:10 pm
vr Where The Use Of An Essentially Identical Protocol Has Resulted In Botched Executions, This COUlt Should Grant A
IRO
The accounts of these numerous botched executions across the United States are "extremely troubling," because they indicate "that there were problems associated with the administration ofthe chemicals that may have resulted in the prisoners being conscious during portions of their executions" Beardslee v. Woodford, 395 F 3d 1064, 1075 (9th Cir 2005) "This COUlt would be
37
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remiss if it did not take note of the evidence [from other states] . [that] raises grave concerns

about whether a condemned inmate would be sufficiently anesthetized under [T ennessee' s April 30,

2007 Protocol] prior to and while being executed." See Cooey, 430 F.Supp 2d at 707, Exhibit 28

e

The Deficiencies In The New April 30, 2007 Protocol Are The Result

ofDefendants' Deliberate Indifference To The Known Risks Inherent

In Such A Protocol

Because the Governor and the TDOC is aware ofthe risks inherent in Tennessee's New April

30,2007 Protocol based on prior lethal injection litigation in this state and ongoing lethal injection

litigation in at least fourteen (14) other states - all ofwhich have protocols that are almost identical

to Tennessee's New April 30, 2007 Protocol, the New April 30, 2007 Protocol was developed and

promulgated and will be used willi deliberate indifference to the exclUciatingly painful and

horrifying death that will result from the use of sodium thiopental, pancuronium bromide, and

potassium chloride by untwined, uneducated and unqualified personnel

Defendants are certainly aware of executions in other states where conectional employees

have encountered significant problems during lethal injection procedures and orders horn state and

federal courts and fiom governors staying executions by lethal injection, including in Arkansas,

California, Delaware, Florida, Maryland, Missouri, New Jersey, North Carolina, Ohio, South Dakota,

and any federal executions Defendants are also certainly aware that the lethal injection protocols

in each of these states is virtually identical to the New April 30, 2007 Protocol that Defendants

intend to use to execute Philip Workrnan

Arkansas On June 26, 2006, the United States DistJict Court for the Eastern District of

Arkansas, granted a stay of execution fOI Don Davis and a preliminary injunction to allow further

investigation into the constitutionality of the lethal injection protocol See Nooner, et al., v. Norris,

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No 06-00110 (E D Ark.)(June 26, 2006 Order granting a preliminary injunction), Exhibit 29. The lethal inj ection protocol used in Ar kansas is almost identical to the new protocol in Tennessee, using the same three drug cocktail and failing to require the participation of trained medical personnel In its Order granting a preliminary injunction, the Nooner court found that "Davis has shown that he is per sonally under a threat of irr epar able harm If Davis remains or becomes conscious during the execution, he will suffer intense pain that will never be rectified The Court further finds the balance of potential harms favors Davis Ifa stay is granted and Davis's allegations prove true, he and others will be spared subjection to an unconstitutional execution procedure, and the State's interest in enforcing death penalties in compliance with constitutional standards will be served" Id. at p 5 The Court went on to note that "Davis has raised serious questions that call for deliberate investigation." Id.
California. On February 14, 2006, the United States District Court for the Northern District of California in the case of Morales v. Hickman, No. 06-00219 (N D.Cal ), denied Michael Morales a preliminary injunction conditioned on certain requirements for the manner in which his execution would be carried out See Morales v. Hickman, 415 F.Supp2d 1037 (ND Cal 2006), aff'd, 438 F 3d 926 (9th Cir 2006), cert denied 126 S Ct 1314 (2006), Exhibit 13 The protocol used in California was almost identical to the New April 30, 2007 Protocol, using the same three drug cocktail and failing to require the participation of trained medical personneL The District Court's conditions dramatically changed California's protocol, including requiring that only sodium thiopental be used in the lethal injection or that someone with training in the field of anesthesiology had to assist in determining whether the inmate was properly sedated before the administration of the pancuronium bromide or the potassium chloride Id. at 1047-1048 Defimdants agreed to comply with the second
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alternative and enlisted two anesthesiologists, who promptly quit when they realized they were being asked to assist in an execution See Morales v. Tilton, 465 F Supp 2d 972, 976 (N D Cal Dec 15, 2006), Exhibit 36 As a result, all executions in California are cUlTently stayed while the Governor and correctional officials develop a new lethal injection protocol. California has indicated that it will issue a new protocol on May 15, 2007.
Delaware. The United States District Court for the District of Delaware on May 9, 2006, granted a preliminary injunction which has stayed all executions since that time See Jackson v. Taylor. et aI., 2006 US Dist LEXIS 27658 (D Del May 9,2006), Exhibit 37 While the stay was for the purpose of awaiting the United States Supreme Court decision in Hill v. McDonough, supra,
the parties in Delaware ar e now engaging in discovery for the purpose of a future evidentiary hearing
on the issue of the constitutionality ofthe Delaware lethal injection protocol. The three-dlUg cocktail used in the Delaware protocol is the same as that used in Tennessee, although the specifics ofthe Delaware protocol are secretive On f eblUary 23,2007, the Jackson court certified a state-wide class consisting of all current and future prisoners who are and will be sentenced to death in Delaware See Jackson v. Danberg, 2007 US Dis! LEXIS 12376 (D Del 2007), Exhibit 38.
Florida In Florida, the December 2006 execution of Mr Angel Diaz exposed the Florida lethal injection protocol as a deep failure The autopsy ofMr Diaz showed that the veins in each of his arms had through and through punctures revealing that the IV lines were improperly seated in his veins. As a result, Mr. Diaz did not get an effective amount ofthe dlUg in a vein in either arm - none of the materials injected went to the right place Instead, the dlUgs entered his bloodstream tir stthrough his flesh and muscle tissue. This process caused foot-long chemical burns on both arms from the sodium thiopental During execution, observers reported that Mr Diaz moved and tried
40
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to mouth words It took 34 minutes and 14 syringes of chemicals fen Mr. Diaz to die, during which he was clearly in pain, struggling for breath and grimacing.
Following the Diaz execution, Govemor Bush ordered that all executions be stayed while a committee undertook a review ofthe Diaz execution and of lethal injection protocols in Florida in general.
After thrce months, eight hearings, consultations with multiple medical expcrts and others, the Florida Commission on Administration of Lethal Injection published a Report that contained findings and recommendations for extensive modifications of the lethal injection protocol in Florida See Florida Report, Exhibit 21 Thc prior protocol used in Florida for the exccution of Angel Diaz used the same thrce drug cocktail and failed to require the participation oftrained medical personnel just like the ncw protocol in Tenncssee Lethal injection executions in Florida remain stayed by or der of the Govemor 6
Maryland On December 16, 2006, the Maryland Court of Appeals ruled in Evans v. State, 396 Md. 256 (Md App. Ct 2006), that the state had not complied with the administrative procedures act in adopting its lethal injection procedures All executions in Maryland are on hold until those procedures for reviewing such changes to the law have been followed Maryland's plior protocol used the samc three drug cocktail and did not provide for the assistance of medical personnel just like the new protocol in Tennessee
Missouri. The United States District Court for the Westem DistIict of Missouri has stayed executions in Missouri finding its lethal injection protocol to be lmconstitutional, and requiring
6Although the Commissioner acknowlcdged reviewing the Florida Report, the protocols adopted by the Commissioner fail to address any of the concerns raised by the Florida Commission.
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cOllections officials to revise their lethal injection protocol, which was identical to the New April 30,2007 Protocol- using the same three drug cocktail and also failing to require the assistance of trained medical personnel See Iaylor v. Crawford, 2006 US Dist LEXIS 74896 (W D Mo October 16, 2006)(finding Missouri's revised protocol inadequate and denying the motion to lift the preliminary injunction), Exhibit 39; Iaylor v. Crawford, 2006 U.S. Dis! LEXIS 51008 (WD.Mo July 25, 2006)(same), Exhibit 40 In the District Court's July 25, 2006 Order, the Court, having reviewed one of the several revised protocols submitted by Missouri cOllections officials said, "Missouri's revised protocol is an improvement over the cUllent pr ocedure However, ther e continue to be inadequacies with the personnel required to monitor and oversee the use of the anesthetic thiopental While the use of a board certified anesthesiologist may not be possible, the alternative proposed by the State falls short of ensuring the protection required. If the proposed three drug protocol is to be used, it is crucial that someone with the appropriate training and experience in monitoring anesthetic depth must be present to ensure that Missouri's executions of its condemned inmates are carried out humanely.,,7 See I aylor, 2006 U.S Dis! LEXIS 51008, *2-3 (emphasis added), Exhibit 40 Executions in Missouri remain stayed.
New Jersey. On February 20,2004, in In Ihc Matter of Readoption With Amendments of Death Penalty Regulations, 842 A 2d 207 (New Jersey 2004), an appellate court in New Jersey stayed all executions until the state could justify its lethal injection procedures New Jersey used both sodium thiopental and pancuronium bromide in its lethal injection procedures, just as Tennessee's New April 30, 2007 Protocol does
North Carolina. Executions in North Carolina have also been stayed by North Carolina state 7I ennessee's New April 30, 2007 Protocol makes no provision for the monitoring of anesthetic depth
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courts until physicians are permitted to participate in executions by lethal injection. See Robinson and Thomas v. Beck, No 07-CVS-00ll09 (Wake County, NC)(Ordering that no executions will proceed in North Carolina until physicians agree to participate 01 a protocol is developed that is satisfactory and does not require doctor participation), Exhibit 41;8 State v. Holman, No. 97-49226 (March 6, 2007)(order cancelling execution date), Exhibit 42. The lethal injection protocol in North Carolina used the same three drug cocktail and did not require the use of trained medical personnel just like the new protocol in Tennessee
Ohio . In 2006, the United States District Court ofthe Southern District of Ohio found that therc was "mounting evidence calling Ohio's lethal injection protocol, and the same or similar protocols employed by other states, increasingly into question." See Cooey, 430 F .Supp 2d at 706 (granting preliminary injunction), Exhibit 28 Ohio's lethal injection protocol uses the same three drug cocktail and does not provide for the assistance ofmedical personnel just like the new protocol in Tennessee Plaintiffs involved in the lethal injection litigation in Ohio are cunently litigating a statute oflimitations issue in the Sixth Circuit Court of Appeals. See Cooey v. Strickland, No 054057 (6th Cir March 2,2007).
South Dakota. The Governor of South Dakota stayed the execution of Elijah Page because of concerns about the state's lethal injection process South Dakota's lethal injection protocol uses the same three drug cocktail and does not provide for the assistance ofmedical personnel just like the new protocol in Tennessee Executions appear to be on hold until July 1, 2007
'The North Carolina Department of Conections is currently suing the North Carolina Medical Board for its position statement that "physician participation in capital punishment is a departure fiom the ethics ofthe medical profession"and "which adopt[ed] and endorserd] the provisions ofthe American Medical Association Code of Medical Ethics Opinion No 2. 06" in North Carolina DOC v. North Carolina Medical Board, 07-CVS-003574 (Wake County, NC)
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Federal District Courts. The Attorney General of the United States has agreed to a preliminary injunction for federal capital plaintiffs challenging the federal lethal injection protocols as unconstitutional. See Roane v. Gonzales, No 05-2337 (D C Dist.), February 16,2007 Order and Unopposed Motion for Preliminary Injunction, Exhibit 10 9 In federal executions, the method is determined by the state in which the sentencing took place. Apparently, the federal protocol calls for the same three-drug combination that is called for in the New April 30, 2007 Protocol.
The New April 30, 2007 Protocol is virtually identical to the protocols which these states are cuncntly for bidden to use, and violates constitutional and statutory provisions enacted to prevent cruelty, pain, and torture and to provide all citizens ofthe United States with due process and equal protection of law
Despite knowledge of the ongomg lethal injection litigation in multiple states and jurisdictions, Defendants failed to consult correctional officials, state officials, or medical experts with experience in lethal injection and lethal injection litigation flOm any of the listed states or jurisdictions, with the exception of the Federal Prison in Tene Haute, as a part of its review and development ofthe New April 30,2007 Protocol See Tennessee Report on Administration ofDeath Sentences, Exhibit 7, p5
Despite knowledge of the ongomg lethal injection litigation in multiple states and jurisdiction, Defendants failed to request documents and information from any correctional officials, state officials, or medical experts with experience in lethal injection and lethal injection litigation
'The federal facility in Tene Haute is the facility where the Commissioner and his review committee performed their site visit
44
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from any of the listed states orjurisdictions, with the exception ofthe IeITe Haute facility,1D as part of its review and development ofthe New April 30, 2007 Protocol See rd.
Defendants' analysis was one-sided, unscientific and failed to take into account the serious known and demonstrated risks ofthe use ofthe chemicals and procedures selected for the New April 30, 2007 Protocol.
Defendants' failure to properly consult, review, and research in promulgating its New April 30,2007 Protocol, despite the ready availability of experienced state officials and medical experts, demonstrates a deliberate indifference to the excruciatingly painful and honifYing death that will result from the use ofthese three drugs by untrained personnel under the new execution protocol
Defendant's analysis of any alternatives for lethal injection methods further demonstrates their deliberate indifference. Defendant's defend thcir use of the three drug cocktail by simply saying that 29 other jurisdictions use it See I ennessee Report on Administration of Death Sentences, Exhibit 7, P 2. Ihis, "everybody else does it" defense fails to acknowledge the number of jurisdictions who are now under judicial and/or executive order not to do it because of concerns that the protocol is U1Iconstitutional
Further, Defendant's discussion of the other methods makes clear the Commissioner and the review committee were concerned with making the lethal injection experience more palatable and acceptable to the witnesses with utter disregard for the risk ofpain and suffering to the condemned. See rd. at pp. 6-8. Ihe Commissioner told the Governor that the review committee rejected a protocol that eliminates the use ofpanCUIonium bromide because "the administration of potassium
lOBOP refuses to disclose their protocols to any party and apparently did not provide their documents to the Commissioner, but, did allow a site visit The Commissioner does not acknowledge that the BOP is cunently enjoined from using their lethal injection protocols
45
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chloride without a preceding dose of pancmonium bromide would typically result in involuntary movement which might be misinterpreted as a seizure 01 an indication of consciousness" Id. at p 8 Nowhere does the repOlt recognize 01 express a concern that movement might actually indicate consciousness, which would mean that the sodium thiopental did not wOlk and that the inmate is actually feeling the searing pain of fhe potassium chlOlide
In discussing the use ofa single dlUg protocol, the Commissioner acknowledges that a single dlUg protocol would be simpler, would decrease the risk of error, and would eliminate the dlUgs which cause pain See I ennessee RepOlt on Administration of Death Sentences, Exhibit 7, p 8. Ihe Commissioner then rejects this protocol because, he (falsely) claims, the two and tluee drug protocols will produce a faster death, fhat the effect and required dosage of the sodium thiopental is less predictahle, and nobody else does it that way. Id
Ihus, the Commissioner and the review team have admitted that they are fully aware of the unpredictability of sodium thiopental and the fact that pancuronium bromide will mask the failme of the sodium thiopental to wOlk properly They have further admitted that they could eliminate the risk of pain to the condemned completely, but refuse not to for the sole purposes of making the killing go faster and making it mOle palatable for the witnesses Ihis evidences the complete and utter disregard on the part of all of fhe Defendants to the great risk, and likelihood, of pain and suffering that will be caused by the use of the New April 30, 2007 Protocol by poorly trained, misinformed, and unqualified members ofthe execution team, while the only medical doctOl on the prcmises waits in the garage
The opinions of the United States District Judge GregOly L Frost in the class-action case of Cooeyv. I aft are instructive in analyzing Mr WOlkman's likelihood ofsuccess on the merits oflus
46
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deliberate indifference claim." In granting a preliminary injunction in that case, Judge Frost took
"judicial notice that multiple states have recently placed executions on hold due to serious concerns
over their lethal injection protocols" Cooey v. Taft, 2006 US Dist LEXIS 92521, n 5 (S D Ohio
Dec 21, 2006), Exhibit 43. This Court should do the same
In conducting his analysis of the factors that weighed in favor of granting a preliminary
injlmction, Judge Frost wrote:
Given the evidence that Jemey Hill and Jerome Henderson first produced, as well as anecdotal evidence that Spirko included demonstrating problems that occurred during Ohio's execution of inmate Joseph Clark on May 2, 2006, Spirko has demonstrated a stronger likelihood of success on the merits than some of the plaintiffS that preceded him, in view of the growing body of evidence calling Ohio's lethal injection protocol increasingly into question This Court stated unequivocally in its order granting Hill's request fCll a preliminary injunction that it can not and will not turn a blind eye to the evidence presented in the cases of Brown v Beck in North Carolina and Morales v Hickman in California appearing to contJadicl the opinion of Dr Mark Dershwitz" that virtually all persons given the dose of sodium thiopental prescribed under Ohio's lethal injection protocol would be rendered unconscious and would stop breathing within one minute. The evidence that has begun to emerge calling this and other conclusions of Dr.. Dershwitz into question also persuades this Court that there is an unacceptable and unnecessary risk that Spirko will be irreparably harmed absent the injunction, i. e that Spirko could suffer unnecessary and excruciating pain while being executed in violation of his Eighth Amendment right not to be subjected to cruel and unusual punishment
"The District Court's Order in Cooey was later vacated by a panel ofthe Sixth Circuit on statute of limitations grounds not relevant to this litigation regarding the newly promulgated protocol See CooeD. Strickland, 479 F 3d 412 (6th Cir. March 2, 2007) Nonetheless, the Cooey panel decision is being considered en bane and one Ohio inmate has received a stay of execution pending the outcome ofthe en banc court's decision. See Cooey v. Strickland, 474 F 3d 268 (6th Cir Jan 16,2006).
"Defendants consulted with and relied on information provided to them by Dr Mark Dershwitz in creating the New April 30, 2007 Protocol See Email from Julian Davis to Dr Mark Dershwitz, Exhibit 9
47
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Cooey v. Taft, 2006 U.S Dist LEXIS 85234, *20-21 (S D Ohio Nov 22,2006), Exhibit 44 In addressing the Ohio Wmden's complaint about "the Cowl's reliance on evidence produced
in other cases around the country and anecdotal evidence regmding problems that have occurred during recent executions in Ohio and other states," Judge Frost observed that while the evidence wasn't "ideal, it is nonetheless persuasive regmding the first factor in McPherson and is mguably the best evidence that the plaintiffs could produce, given the fact that this case was stayed before any discovery of other fact-finding could commence" Cooey, 2006 U.S Dist LEXIS 92521, *14, Exhibit 43
The body of evidence which demonstrates the unreasonable and unacceptable risk ofpain and suffering under Tennessee's New April 30, 2007 lethal injection protocol continues to grow Just last week, a scientific study of executions in California and North Cmolina revealed botched executions in those states See Leonardis Konimis et aI, Lethal Injection For Execution Chemical Asphyxiation?, PLOS Medicine, Vol 4, Issue 4, April 2007, Exhibit 45. Yesterday, ProfessOl Deborah Denno published a wOlking draft of her most recent research about the state of lethal injections in this country and the risks involved See Deborah Denno, The Lethal Injection Quandary How Medicine Has Dismantled The Death Penalty, Fordham University School of Law, May 2, 2007, Exhibit 46 This growing body of evidence makes clem that Mr WOIkman has demonstrated a strong likelihood of success on the merits of his claims This cowt should issue a 1RO to permit consideration of this evidence and prevent this case hom becoming moot through Mr WOIkman's execution
48
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B MR. WORKMAN WILL SUFFER IRREPARABLE HARM IF A TRO IS NOT GRANTED
If Defendants are not enjoined from executing Mr Workman in accordance with the New April 30, 2007 Protocol, Mr.. Workman will suffer irreparable harm As is clear from the foregoing, there is ample evidence that use of the New April 30, 2007 Protocol carries a significant and unacceptable risk that Mr Workman will indeed suffer tremendously Indeed, ifsubjected to sodium thiopental without the assistance of a medically trained anesthesiologist and then subjected to the paralyzing effects of pancuronium bromide as the New April 30, 2007 Protocol commands, Mr Workman will be for ced to endur e excruciating pain and conscious torture while being asphyxiated until he dies There is no question that such treatment constitutes ineparable harm for which the only remedy is injunctive relief as Mr Workman will be dead should the New April 30, 2007 Protocol be used for his execution. See Jolly v. Coughlin, 76 F 3d 468,482 (2d Cir 1996)(holding that continued pain and suffering resulting from deliberate medical indifference is irreparable harm).
C THE BALANCE OF HARMS STRONGLY FAVORS MR WORKMAN In contrast, the harm to the Defendants is slight While Defendants have an interest in executing its judgments, they have no interest in employing a protocol that tortures inmates and violates the Eighth, Ninth, and Fourteenth Amendments when other protocols are available. However, any injunction by this Court for the purpose of ensuring that Defendants are not the agents of torture by their use of the New April 30, 2007 Protocol will have little adverse effect upon the Defendants' interests Indeed, "if persons are put to death in a manner that is determined to be cruel, they suffer injury that can never be undone, and the Constitution suffers an injury that can never be repaired" Gomez v. U.S. Dist. Ct. For Northern Dist. Of California, 966 F 2d 460, 462 (9th Cir
49
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I 992)(Noonan, J, dissenting from grant of WI it ofmandate). There can be no reasonable harm to the Defendants in prohibiting them from procUling and using a substance which cannot be used on non-livestock animals because it inflicts cruelty, and in prohibiting Defendants fiom using lethal chemicals without the assistance of appropriately trained and licensed medical personnel, including anesthesiologists As such, the balance of harms tips strongly in favor of entering a preliminary injunction
D. GRANTING TEMPORARY RELIEF IS IN THE PUBLIC INTEREST Whether the state of Tennessee is executing its prisoners in a way that subjects them to an excruciatingly painful, tOitUiOUS, and honifYing death is clearly a matter of vital public interest Public interest lies in avoiding the unnecessary infliction ofconscious suffering of exclUciating pain The standards of decency and humanity in a society such as oms are gravely offended by such practices and so it is affirmatively in the public interest to address and resolve the merits ofthe Mr. WOIkman's claims in order to identify and put an end to unnecessary procedUies that pose a risk of causing gratuitous suffering. Thus, it is paramountto the public interest that Mr Workman's claims be resolved on the merits. "In considering an Eighth Amendment claim the COUIt must be mindful that it embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency." LaFaut v. Smith, 834 F 2d 389, 391 (4th Cir 1987)(quoting Estelle v. Gamble, 429 US 97 (1976» Lethal injection became the predominant method of execution in Tennessee because it was previously perceived to be the most hmnane form of execution To the extent that the Tennessee legislatme chose lethal injection on the assumption that it was painless, this selection demonstrates an intention to employ the most humane method of execution possible. Moreover, the GovemOl's
50
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90-day Reprieve to "initiate a comprehensive review of the manner in which death sentences are administered in I ennessee," which ended only yesterday, demonstrates that carrying out executions "in a constitutional and appropriate manner" is important to the public - as the Governor himself said, "The administration of the death penalty in a constitutional and appropriate manner IS a responsibility ofthe highest importance" See Governor's Executive Ordel #43, Exhibit 3.
There is compelling evidence in the form of medical evidence, opinion, and eyewitness accoLmts that the New April 30, 2007 Protocol creates a significant and unacceptable risk of, and in other states has actually resulted in, the infliction of unnecessary and excruciating pain and tortme Ifa TRO is not granted, Mr Workman's execution will necessarily take place before the issues can be adjudicated In light of the importance ofthe questions involved, it is clearly in the public interest that temporary relief be granted in the instant case to solve this dilemma and permit a definitive determination of the merits to be made "[T]he public interest only is served by enforcing constitutional rights and by the prompt and accurate resolution of disputes concerning those constitutional rights By comparison, the public interest has never been and could never be served by rushing to judgment at the expense of a condemned inmate's constitutional rights " Cooey, 2006 US Dist LEXIS 92521, *17 (granting preliminary injunction), Exhibit 43
There are no countervailing considerations suggesting that entry ofa preliminary injunction would hurt the public interest Mr. Workman has not engaged in abusive delay, nor is this suit an attempt simply to put off his execution. Where an inmate presents a meritorious challenge of constitutional dimension and is not attempting to manipulate the judicial process, it cannot be in the public interest to allow Defendants to execute him using the very flawed process he challenges
51
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E MR. WORKMAN ENGAGED IN NO UNDUE DELAY IN BRINGING IHIS ACTION
Mr WOIkman has diligently pUlsued the vindication of his constitutional claims as soon as they became ripe for review. Defendants chose to schedule Mr WOIkman's execution just eight (8) days and one (1) hOUl after the promulgation of brand new execution protocols and the end of the GovernOl's reprieve Indeed, Mr Workman repeatedly requested the I ennessee Supreme COUlt, the Governor, and the Attorney General to stay his execution because of concerns that there would not be adequate time to review any new execution protocol and determine what legal options were available . See Philip Workman's Motion to Vacate Execution Date, Exhibit 4 Mr WOIkman's requests were denied. See I ennessee Supreme COUlt March 27,2007 Order, Exhibit 6
Defendants themselves admit that any lethal injection challenge brought befOle the date of the GovernOl' s Executive Order #43was moot Indeed, in other lethal injection challenges that were pending in the Middle District of I ennessee at the time of the Governor's Order, the Defendants filed Motions to Dismiss because "there is no lethal injection protocol cUlrently in effect; thus, there is nothing to litigate" See Payne v. Little, No 06-00825, Defendant's MemOlandum in SUppOlt of Motion to Dismiss, Exhibit 47, p. 3; Harbison v. Little, No 06-1206, Defendant's Memorandum in SUppOlt of Motion to Dismiss, Exhibit 48, pA
As a result, Mr.. WOIkman did not have a ripe lawsuit until the IDOC published its New April 30, 2007 Protocol Mr.. Workman has not delayed since receiving the New April 30, 2007 Protocol Indeed, Mr Workman filed his Emergency Grievance with the IDOC on May 2,2007, less than fOlty-eight hOUlS after the New April 30, 2007 Protocol was provided to him See Philip WOIkman's Emergency Grievance, Exhibit 11. Mr. WOIkman now files his Motion fOl IRa and
52
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Memorandwn in Support less than forty-eight hours later As a result, Mr Workman has not unduly delayed. VI. CONCLUSION
"Given that the State is taking a human life, the pervasive lack ofprofessionalism in the implementation of[I ennessee' s New April 30, 2007 Protocol] at the very least is deeply distur bing Coupled with the fact that the use of pancuronium bromide masks any outward signs of consciousness, the systemic flaws in the implementation of the protocol make it impossible to determine with any degree ofcertainty whether one or mor e inmates may have been conscious during previous executions or whether there is any reasonable assurance going forward that a given inmate will be adequately anesthetized Ihe responsibility for this uncertainty falls squarely upon Defendants, and the circumstances clearly implicate the Eighth Amendment "See Morales v. I ilton, 465 F Supp 2d at 980, Exhibit 36
As a result, this Court should enter a temporary restraining order to prevent Defendants from executing Philip Workman on May 9, 2007 pursuant to the New April 30, 2007 Protocol before he is able to exhaust his administrative remedies and to allow Mr Workman to properly file his Section 1983 Complaint, and afterwards should grant Mr. Workman a preliminary and permanent injunction against Defendants from using the New April 30, 2007 as its use constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments
Respectfully submitted, Paul R. Bottei Kelley J. ReillY Gretchen L Swift Office of the Federal Public Defender
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Middle District of I ennessee 810 Broadway, Suite 200 Nashville, I ennessee 37203 (615) 736-5047 FAX (615)736-5265
CERTIFICATE OF SERVICE
I certify that on this 4th day of May, 20007, I caused a copy of the foregoing to be served via hand-delivery to the following:
Warden Ricky Bell River bend Maximum Secmity Institution 7475 Cocklill Bend Industrial Blvd. Nashville, I ennessee 37209
Warden Roland Colson Lois M. DeBeny Special Needs Facility 7575 Cockrill Bend Blvd Nashville, IN 3 7219
Attorney General Robert E Cooper, Jr 425 Fifth Avenue North Nashville, I ennessee 37243
Julian Davis Executive Assistant to the Commissioner Rachel Jackson Building Sixth Floor 320 Sixth Avenue North Nashville, Tennessee 37243-0465
Steven Edward Elkins, Esq Legal Counsel to the Governor State Capitol G-I 0 Nashville, I ennessee 37243
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General Counsel Debbie Inglis I ennessee Depattment of Conection Rachel Jackson Building Fomth Floor 320 Sixth Avenue NOIth Nashville, Tennessee 37243 -0465 Assistant Commissioner Gayle Ray Rachel Jackson Building Sixth Floor 320 Sixth Avenue North Nashville, I ennessce 37243-0465
55 Case 3:07-cv-00490 Document 2-1 Filed 05/04/2007 Page 55 of 55

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

PHILIP WORKMAN,

)

)

Plaintiff,

)

)

v

)

)

GOVERNOR PHIL BREDESEN, in his )

official capacity as Governor of the )

State of Tennesseee;

)

)

GEORGE LITTLE, in his official capacity )

as Tennessee’s Commissioner of

)

Corrections;

)

)

RICKY BELL, in his official capacity as )

Warden, Riverbend Maximum

)

Security Institution;

)

)

GAYLE RAY, in her official capacity as )

Assistant Commisioner of

)

Corrections;

)

)

ROLAND COLSON, in his official capacity )

as Assistant Commissioner of

)

Corrections;

)

)

JULIAN DAVIS, in his official capacity as )

Executive Assistant to the

)

Commissioner;

)

)

DEBBIE INGLIS, in her official capacity as )

General Counsel to the Department )

of Corrections;

)

)

JOHN DOE PHYSICIANS 1-100;

)

)

JOHN DOE PHARMACISTS 1-100;

)

)

JOHN DOE MEDICAL PERSONNEL 1-100;)

)

JOHN DOE EXECUTIONERS 1-100;

)

No. 07- CV- 0490 Death Penalty Case Execution Date May 9, 2007, 1:00 a.m.

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)

JOHN DOES 1-100;

)

)

Defendants.

)

C O M P L A I N T I. Introduction1
1. On May 9, 2007 at 1:00 a.m., the State of Tennessee intends to kill Plaintiff Philip Workman by lethal injection under a “new” lethal injection protocol first made known to Philip Workman on just eight days prior on April 30, 2007. On April 30, 2007, the State released its new protocol after a 90-day reprieve of all executions, wherein the Governor had ordered that the current execution protocols, “whether written or otherwise, used by the Department of Correction and related to the administration of death sentences in Tennessee, both by lethal injection and electrocution, [we]re ... revoked.” See Governor’s Executive Order No. 43, Exhibit 1.2 Along with the reprieve, the Governor directed the Department of Corrections (TDOC) to undertake a “comprehensive review of the manner in which death sentences are administered in Tennessee” including “to utilize all relevant and appropriate resources, including but not limited to scientific and medical experts, legal experts, and Correction professionals, both from within and outside the state of Tennessee.” Id. Having concluded its “comprehensive” review, on April 30, 2007,

1This Complaint was prepared under extreme time constraints. Plaintiff would intend to amend the Complaint after sufficient time. Plaintiff incorporates, as if set forth fully herein, all of the factual allegations in his Motion and Memorandum In Support of Motion for Temporary Restraining Order and Exhibits, as well as all arguments made at the May 4, 2007, 1:30 p.m. oral argument on these motions. See Docket Entry Nos. 1, 2, and 5.
2All Exhibits are identified as those attached to the Memorandum in Support of Motion for Temporary Restraining Order.
2
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the TDOC released a protocol that is only slightly different than the prior protocol, which was described by the Governor as having “deficiencies in the written procedures,” “sloppy,” and “not adequate to preclude mistakes.” Moreover, this “new” protocol is essentially identical to the protocols used in other states, including in Florida, California, Missouri, North Carolina, Ohio, and Arkansas, where federal or state courts have refused to allow executions by lethal injection to proceed because of grave concerns about the constitutionality of the protocol.
2. To kill Mr. Workman, the State intends to use a protocol whereby he would be injected with a dose of sodium thiopental, then with a dose of pancuronium bromide (Pavulon), and third with a dose of potassium chloride. The use of this protocol is unconstitutional. The sodium thiopental does not sufficiently anesthetize any individual. The use of pancuronium bromide is arbitrary, serves no legitimate interest, unreasonably risks the infliction of torture, and, at bottom, offends the dignity of humanity: Indeed, it cannot be used in Tennessee to kill a dog. Its use violates equal protection. The potassium chloride does not stop the heart. The use of this mixture of chemicals causes an unnecessarily painful and prolonged death experienced without total unconsciousness.
3. This Court should also declare the New April 30, 2007 Protocol unconstitutional and enjoin its use as it is unconstitutional under the Eighth and Fourteenth Amendments. See New April 30, 2007 Protocol, Exhibit 2. II. Nature of Action
4. This action is brought pursuant to 42 U.S.C. §19833 for violations and threatened
3The United States Supreme Court decisions in Hill v. McDonough, 547 U.S. ___, 126 S.Ct. 2096 (2006) and Nelson v. Campbell, 541 U.S. 647, 124 S.Ct. 2117 (2004) confirm that a civil rights action pursuant to 42 U.S.C. §1983 is an appropriate vehicle for a claim alleging that the procedures
3
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violations of the right of Plaintiff under the Eighth, Ninth, and Fourteenth Amendments, including the right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff seeks equitable and injunctive relief.
III. Plaintiff 5. Plaintiff Philip Workman is a United States Citizen and a resident of the State of
Tennessee. He is currently a death-sentenced inmate in the custody of Defendants and under the control and supervision of the Tennessee Department of Corrections. He is held in the Riverbend Maximum Security Prison, 7475 Cockrill Bend Industrial Drive, Nashville, Davidson County, Tennessee; telephone (615) 350-3400. IV. Defendants
6. Defendant Governor Phil Bredesen is the Governor of the State of Tennessee. Plaintiff sues Governor Bredesen in his official capacity. Defendant is a state actor acting under color of state law, and his actions in directing and approving the development of a new execution protocol, and then seeking to execute or executing Plaintiff with that new protocol, as described infra, violate Plaintiff’s constitutional rights, as described infra.
7. Defendant George Little is the Commissioner of the Tennessee Department of Corrections. Plaintiff sues Commissioner Little in his official capacity. Defendant is a state actor acting under color of state law, and his actions in directing and developing a new execution protocol, and then seeking to execute or executing Plaintiff with that new execution protocol, as described infra, violate Plaintiff’s constitutional rights, as described infra.
used to carry out a death sentence violate the Eighth Amendment. 4
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8. Defendant Ricky Bell is the Warden of Riverbend Maximum Security Institution. Bell is directly in charge of executing Plaintiff. Plaintiff sues Warden Bell in his official capacity. Defendant is a state actor acting under color of state law, and his actions in helping to develop a new execution protocol, and then seeking to execute or executing Plaintiff with that new execution protocol, as described infra, violate Plaintiff’s constitutional rights, as described infra.
9. Defendant Gayle Ray is an Assistant Commissioner for the Tennessee Department of Corrections. Plaintiff sues Assistant Commissioner Ray in her official capacity. Defendant is a state actor acting under color of state law, and her actions in helping to develop a new execution protocol, and then seeking to execute or executing Plaintiff with that new execution protocol, as described infra, violate Plaintiff’s constitutional rights, as described infra.
10. Defendant Roland Colson is an Assistant Commissioner for the Tennessee Department of Corrections. Plaintiff sues Assistant Commissioner Colson in his official capacity. Defendant is a state actor acting under color of state law, and his actions in helping to develop a new execution protocol, and then seeking to execute or executing Plaintiff with that new execution protocol, as described infra, violate Plaintiff’s constitutional rights, as described infra.
11. Defendant Julian Davis is the Executive Assistant to the Commissioner for the Tennessee Department of Corrections. Plaintiff sues Executive Assistant Davis in his official capacity. Defendant is a state actor acting under color of state law, and his actions in helping to develop a new execution protocol, and then seeking to execute or executing Plaintiff with that new execution protocol, as described infra, violate Plaintiff’s constitutional rights, as described infra.
5
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12. Defendant Debbie Inglis is the General Counsel to the Tennessee Department of Corrections. Plaintiff sues Counsel Inglis in her official capacity. Defendant is a state actor acting under color of state law, and her actions in helping to develop a new execution protocol, and then seeking to execute or executing Plaintiff with that new execution protocol, as described infra, violate Plaintiff’s constitutional rights, as described infra.
13. Defendants John Doe Physicians 1-100 are any and all medical doctors involved in the prescription, procurement and/or administration of sodium thiopental, pancuronium bromide, and/or potassium chloride for use upon Plaintiff without the purpose to heal, but to cause Plaintiff’s death. Such Defendants are state actors acting under color of state law, and their actions in seeking to execute or executing Plaintiff as described infra violate Plaintiff’s constitutional rights, as described infra.
14. Defendants John Doe Pharmacists 1-100 are any and all persons involved in procuring, prescribing, dispensing, and/or administering sodium thiopental, pancuronium bromide, and/or potassium chloride for use upon Plaintiff without the purpose to heal, but to cause Plaintiff’s death. Such Defendants are state actors acting under color of state law, and their actions in seeking to execute or executing Plaintiff as described infra violate Plaintiff’s constitutional rights, as described infra.
15. Defendants John Doe Medical Personnel 1-100 are any and all persons involved in using, preparing, or otherwise handling Plaintiff or sodium thiopental, pancuronium bromide, and/or potassium chloride in any attempt to administer or inject sodium thiopental, pancuronium bromide, and/or potassium chloride upon Plaintiff without the purpose to heal, but to cause Plaintiff’s death. Such Defendants are state actors acting under color of state law, and their
6
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actions in seeking to execute or executing Plaintiff as described infra violate Plaintiff’s constitutional rights, as described infra.
16. Defendants John Doe Executioners 1-100 are any and all persons involved in using, preparing, or otherwise handling Plaintiff or sodium thiopental, pancuronium bromide, and/or potassium chloride in any attempt to administer or inject sodium thiopental, pancuronium bromide, and/or potassium chloride upon Plaintiff to cause Plaintiff’s death. Such Defendants are state actors acting under color of state law, and their actions in seeking to execute or executing Plaintiff as described infra violate Plaintiff’s constitutional rights, as described infra.
17. Defendants John Does 1-100 are any and all other persons who are, or would be, involved in the prescription, procurement, dispensing and/or administration of sodium thiopental, pancuronium bromide, and/or potassium chloride for use upon Plaintiff without the purpose to heal, but to cause Plaintiff’s death; or otherwise involved in the actual execution of Philip Workman through the use of sodium thiopental, pancuronium bromide, and/or potassium chloride. Such Defendants are state actors acting under color of state law, and their actions in seeking to execute or executing Plaintiff as described infra violate Plaintiff’s constitutional rights, as described infra. V. JURISDICTION/VENUE
18. In this action, Plaintiff invokes 28 U.S.C. §§1331 (federal question), 1343 (civil rights violations), 2201 (declaratory relief), and 2202 (further relief). This action arises under the Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C.§1983.
19. As to exhaustion of administrative remedies, on May 2, 2007, less then forty-eight hours after the New April 30, 2007 Protocol for executions in Tennessee was released, Plaintiff
7
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filed a Emergency Grievance with the TDOC, pursuant to TDOC Policy 501.01 and Tenn. Code Ann. §§ 4-3-603, 4-3-606, and 41-24-110. See Emergency Grievance of Philip Workman, Exhibit 3. Plaintiff’s Emergency Grievance was apparently denied by Commissioner Little on May 3, 2007. Plaintiff and Plaintiff’s counsel were not informed of the denial until May 4, 2007 at 10:00 a.m. Defendants admit that Plaintiff has now exhausted administrative remedies.
20. Venue is proper in this district under 28 U.S.C. §1391 and this Court has personal jurisdiction over the Defendants in this matter because the events giving rise to these claims will occur in Nashville, Tennessee, which is within the Middle District of Tennessee. VI. FACTS
21. Plaintiff Philip Workman has been on death row since 1982. 22. Plaintiff Workman was a heavy intravenous drug user prior to his incarceration in 1982. 23. On January 17, 2007, the Tennessee Supreme Court set Mr. Workman’s execution for May 9, 2007. 24. On February 1, 2007, Defendant, Tennessee’s Governor Phil Bredesen, issued an Executive Order directing the Department of Corrections to “complete a comprehensive review of the manner in which the death penalty is administered in Tennessee” by May 2, 2007. See Governor’s Executive Order No. 43, Exhibit 1.
a. The Order directs that by May 2, 2007 the Commissioner of Corrections should “establish and provide to me new protocols and related written procedures for administering death sentences in Tennessee, both by lethal injection and electrocution.” See Exhibit 1.
8
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b. To that end, the Governor issued a Reprieve to four individuals who had death sentences “scheduled to be carried out within the next ninety (90) days” and ordered that the Reprieve remain in place until May 2, 2007. See Exhibit 1.
c. Plaintiff’s execution date was not included in the Reprieve, although it was scheduled for just one week (7 days) and four (4) business days after the May 2, 2007 deadline.
d. On March 15, 2007, Mr. Workman filed a Motion to Vacate his May 9, 2007 execution date in the Tennessee Supreme Court because it was apparent that Mr. Workman would not have sufficient time to review and litigate any possible claims that he may have under any newly enacted protocol. See Philip Workman’s Motion to Vacate Execution Date, Exhibit 4. The State of Tennessee opposed Mr. Workman’s motion (See State’s Response to Motion to Vacate Execution Date, Exhibit 5), and the Tennessee Supreme Court refused Mr. Workman’s request. See Tennessee Supreme Court Order, March 27, 2007, Exhibit 6.
e. The Governor’s execution review team conducted their work in complete secrecy.
f. The contents of the New April 30, 2007 Protocol were only made known to Mr. Workman for the first time at 4:10 p.m. on April 30, 2007.
g. The review team’s Report on Administration of Death Sentences In Tennessee was delivered the following day. See Tennessee Report on Administration of Death Sentences in Tennessee. Even so, Mr. Workman has outstanding requests for public records sent to the Governor, the Commissioner of the Department of Corrections, and each member of the review team, relating to the development, promulgation, evaluation, and implementation of those
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protocols. See Philip Workman’s April 25, 2007 Records Requests. Some documents have been disclosed, other documents have not.
h. The few documents from the execution review team that have been disclosed demonstrate that the State of Tennessee was deliberately indifferent in its development of the New April 30, 2007 Protocol.
i. The execution review team contained no members with medical or pharmacological expertise. Emails provided by the State of Tennessee, reveal that the “lead” member of the Lethal Injection Review Team is the Commissioner’s Executive Assistant. See Email from Julian Davis to Dr. Mark Dershwitz.
25. In a report to the Governor, the Commissioner told the Governor that the Board had consulted with the Bureau Of Prisons in Terre Haute and went on a site visit to participate in their lethal injection training. See Tennessee Report on Administration of Death Sentences in Tennessee, Exhibit 7, p. 5.
26. The Commissioner’s Report fails to reveal that the lethal injection protocol at the federal facility in Terre Haute has been suspended by the agreement of the United States Attorney General while concerns about the constitutionality of the lethal injection protocol are being examined. See Roane v. Gonzales, No. 05-2337 (D.C. Dist.), February 16, 2007 Order and Unopposed Motion for Preliminary Injunction, Exhibit 10.
27. Pursuant to the Governor’s direction, Defendant Little assembled a committee to develop a new execution protocol. That committee allegedly included: Commissioner Little himself, Warden Ricky Bell, Assistant Commissioner Gayle Ray, Assistant Commissioner Roland Colson, General Counsel Debbie Inglis, and Executive Assistant Julian Davis.
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28. On April 30, 2007, the Commission of Corrections provided new protocols and related written procedures for carrying out executions in Tennessee (“New April 30, 2007 Protocol”) to the Governor (See Exhibit 2), and a Report on Administration of Death Sentences In Tennessee (“TDOC Report”). See TDOC Report, Exhibit 4.
29. Immediately thereafter on April 30, 2007 , the Governor approved the New April 30, 2007 Protocol.
30. On May 2, 2007, Plaintiff filed an Emergency Grievance pursuant to TDOC Policy 501.01C.1, grieving the New April 30, 2007 Protocol provided by Commissioner and his committee and approved by the Governor for use in Plaintiff’s execution because it is unconstitutional under the Eighth, Ninth, and Fourteenth Amendments. See Exhibit 3.
31. On May 3, 2007, Commissioner Little denied Plaintiff’s grievance; Plaintiff was not informed of this denial until the morning of May 4, 2007.
LETHAL INJECTION 32. According to the New April 30, 2007 Protocol devised and promulgated by Defendants, at Plaintiff’s proposed May 9, 2007 execution, Defendants intend to inject the following drugs into Plaintiff in order to kill him:
a. 5 grams of Sodium Thiopental b. 100 mg/100 mL of Pancuronium bromide c. 100 mg/mL of a 2 mEq/mL concentrate of Potassium Chloride 33. The Defendants’ New April 30, 2007 Protocol, including the combination of chemicals (sodium thiopental, pancuronium bromide, and potassium chloride); the lack of proper training, qualifications, screening and review of the persons involved in the process; the absence
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of standardized procedures for administration of the chemicals; the absence of a sufficient anesthetic and any monitoring of anesthetic depth; and the absence of a back-up plan should problems arise during the protocol, creates a grave and substantial risk that Plaintiff will be conscious throughout the execution process and, as a result, will experience an excruciatingly painful and protracted death. In addition, the New April 30, 2007 Protocol, devised and promulgated by Defendants, demonstrates a deliberate indifference on the part of Defendants to the excruciatingly painful and horrifying death that will result from its use.
LETHAL INJECTION CHEMICALS Sodium Thiopental
34. Anesthesia is the process of blocking the perception of pain and other sensations, creating insensibility to pain.
35. Sodium Thiopental is an ultra-short acting barbiturate. 36. In the New April 30, 2007 Protocol, the alleged purpose of sodium thiopental is to “depress[] the central nervous system, causing sedation or sleep, depending on the dose. It reduces oxygen flow to the brain and causes respiratory depression.” See Exhibit 1, p. 35. 37. Induction of anesthesia using thiopental occurs quickly, but its effect wears off in a matter of minutes. Sodium thiopental is used as an anesthetic in surgery because it enables an anesthesiologist to quickly awaken a patient should complications arise. It is usually used only during the preliminary phase of anesthesia administration. 38. There are differing levels of anesthesia, and thus consciousness. 39. The human body reacts to various stimuli differs depending upon the level of anesthesia.
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40. The New April 30, 2007 Protocol also fails to address the individual prisoner’s medical condition and history as related to the effectiveness of sodium thiopental; instead each inmate will be given a 5 gram dose. See Exhibit 1, p. 35. Several regularly prescribed drugs at Riverbend Maximum Security Institution interfere with the ability of sodium thiopental to act properly as an anesthetic.
41. Despite the grave risk that sodium thiopental will not work effectively to induce surgical anesthesia for the inmates, as demonstrated by medical studies and the experiences in other states, the New April 30, 2007 Protocol fails to provide for proper monitoring of anesthetic depth as is necessary when using sodium thiopental. See Exhibit 1, p. 43.
42. As is clear from medical studies and the experiences of other states and from the Declaration of Dr. Mark Heath, sodium thiopental, as used in the New April 30, 2007 Protocol, does not adequately anesthetize a person prior to the introduction of pancuronium bromide and potassium chloride resulting in an excruciatingly painful and horrifying death as a result of the conscious asphyxiation by pancuronium bromide followed by the painful intense burn and cardiac arrest of potassium chloride.
Pancuronium Bromide (Pavulon) 43. As used in Tennessee’s New April 30, 2007 Protocol, pancuronium bromide is supposed to “assist in the suppression of breathing and ensure death.” See Exhibit 1, p. 35. 44. Pancuronium bromide, marketed under the name Pavulon, is a neuromuscular blocking agent which causes paralysis of the skeletal muscles of an individual. 45. Pancuronium bromide does not affect the brain or nervous system, nor does it block the actual reception of nerve impulses in the brain or the passage of such impulses within
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the brain. 46. Pancuronium bromide does not affect consciousness or the sensation of pain or
suffering. 47. An individual under the influence of pancuronium bromide, though paralyzed,
still has the ability to think, to be oriented to where he is, to experience fear or terror, to feel pain, and to hear.
48. While pancuronium bromide paralyzes the diaphragm to prevent breathing, it does not affect the heart muscle.
49. Pancuronium bromide, administered by itself as a “lethal dose,” would not result in a quick death; instead, it would ultimately cause someone to asphyxiate or suffocate to death while still conscious.
50. If an individual is not properly anesthetized when injected with pancuronium bromide, he will consciously experience extreme pain while being completely paralyzed.
51. Thus, an individual will undergo the terrorizing and excruciating experience of suffocation without the ability to move or to express the pain and suffering which he is experiencing as he is being suffocated.
52. Because pancuronium bromide paralyzes all skeletal muscles including facial muscles and those used to speak or communicate through noises, an observer cannot detect, from outward appearance, any expression of pain, horror, or suffering experienced because of the use of pancuronium bromide.
53. Moreover, the paralyzing effect of pancuronium bromide also prevents any expression of the pain, horror, or suffering from any other source, such as potassium chloride
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which will activate the nerves of the venous system causing an extreme burning pain. The use of pancuronium bromide under the New April 30, 2007 Protocol to paralyze Plaintiff greatly increases the risk that a conscious prisoner will be subjected to a painful and protracted death.
54. Death caused by the use of pancuronium bromide is gruesome, horrible, and painful. Pancuronium bromide could not lawfully be used alone as the fatal agent because causing death by suffocation violates the Eighth Amendment’s prohibition against cruel and unusual punishment. It serves no legitimate penological purpose.
55. The use of pancuronium bromide is arbitrary, unreasonable, degrading to human dignity, and serves no legitimate interest.
56. Because pancuronium bromide causes paralysis, suffocation, and the suffering attendant to such paralysis and suffocation, in 2001, Tennessee declared in the “Nonlivestock Humane Death Act” (Tenn. Code Ann. 44-17-301 et seq.) that pancuronium bromide cannot be used to euthanize animals, because its use is not humane.
57. Where the use of pancuronium bromide is not “humane” to use on non-humans, it is arbitrary to claim that its use is “humane” on humans, and its use on humans to cause death violates basic precepts of human dignity.
a. The use of pancuronium bromide in execution is unnecessary and arbitrary.
b. The use of pancuronium bromide in execution is unreasonable and irrational.
c. The use of pancuronium bromide in execution serves no legitimate state interest and is not narrowly tailored to any compelling state interest.
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d. As Chancellor Ellen Hobbs Lyle has explained elsewhere: [T]he use of Pavulon is . . . unnecessary. . . [T]he State [has] failed to demonstrate any reason for its use. The record is devoid of proof that the Pavulon is needed. Thus, the Court concludes that . . . the State’s use of Pavulon is . . . in legal terms ‘arbitrary.’ Abdur’Rahman v. Sundquist, No. 02-2236-III, In The Chancery Court For The State Of Tennessee, Twentieth Judicial District, p. 13 (June 2, 2003).
Potassium Chloride 58. As used in Tennessee’s New April 30, 2007 Protocol, potassium chloride is supposed to cause “cardiac arrest and rapid death.” See Exhibit __, p. 35. 59. The administration of potassium chloride is extremely painful, because it activates all the nerve fibers inside the venous system. Because veins are replete with nerve fibers, the administration of potassium chloride into the veins creates extreme pain. 60. In the absence of adequate anesthesia, the introduction of potassium chloride, like the introduction of pancuronium bromide, creates extreme and excruciating pain. 61. Under Tennessee’s New April 30, 2007 Protocol, 100 mg/mL or a 2 mEq/mL concentrate of potassium chloride are introduced into the body through a vein. See Exhibit 1, p. 35. 62. This method of administering this amount of potassium chloride is inadequate to stop the heart. 63. This is confirmed by the autopsy of Robert Coe, which demonstrates that his vitreous potassium was 9 mEq/l (9mmol/l). It actually takes a serum concentration of more than 16 mEq/l (16mmol/l) of potassium to arrest the heart.
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64. Moreover, a study published just last week confirms that potassium chloride is not the lethal agent in lethal injection. See Leonardis Koniaris et al, Lethal Injection For Execution: Chemical Asphyxiation?, PLOS Medicine, Vol. 4, Issue 4, April 2007.
65. A person being lethally injected under Tennessee’s New April 30, 2007 Protocol thus actually dies from the suffocation caused by the pancuronium bromide and the resulting anoxic state, and not from cardiac arrest due to the administration of potassium chloride.
NEW APRIL 30, 2007 LETHAL INJECTION PROTOCOL 66. The New April 30, 2007 Lethal Injection Protocol is set forth in the Tennessee Department of Corrections’ “Execution Procedures for Lethal Injection.” See Exhibit 1, p. 1. 67. The New April 30, 2007 Protocol was adopted by the Governor upon a recommendation from the TDOC on April 30, 2007 without any medical research or review to determine that a prisoner would not suffer pain beyond that attendant to the extinguishment of life. 68. Under the New April 30, 2007 Protocol, an execution by lethal injection requires the participation of the Commissioner, the Warden, the Deputy Warden, the Administrative Assistant, the Death Watch Supervisor and assigned officers, a Chaplain, a Medical Doctor and associate, an “Execution Team,” an “IV Team,” and an “Extraction Team.” 69. The New April 30, 2007 Protocol contains no description of the “IV Team” or the “Extraction Team.” 70. Thus, the New April 30, 2007 Protocol fails to indicate how the members of the IV Team or Extraction Team are qualified to participate, or what screening, if any, has been done to insure that these members do not have a criminal background, mental health issues, personnel
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and disciplinary issues, drug or alcohol issues. 71. As to each member participating in the lethal injection, including the Execution
Team, the IV Team, and the Extraction Team, as well as the Warden, the Deputy Warden, the Administrative Assistant, the Death Watch Supervisor and assigned officers, a Chaplain, a Medical Doctor and associate, the New April 30, 2007 Protocol fails to indicate what training, if any, each person has had to equip them for their duties, and what screening, if any, has been done to insure that each person is competent to perform their duties, and what practices the teams have had to prepare for the execution.
72. The New April 30, 2007 Protocol fails to indicate what training, education, or licensing the IV Team and any medical doctor or associate has accomplished, if any.
73. The use of the three-drug cocktail (“Lethal Injection Chemicals”) as outlined in the New April 30, 2007 Protocol is unconstitutional. See Exhibit 1, p. 35.
a. The New April 30, 2007 Protocol instructs that an inmate will be injected with 5 grams of sodium thiopental, 100 cc of pancuronium bromide (Pavulon), and 100 mg/mL of 2 mEq/mL concentrate of potassium chloride. See Exhibit 1, p. 35.
b. The use of this New April 30, 2007 Protocol is unconstitutional as it is cruel and unusual punishment.
c. The sodium thiopental does not sufficiently anesthetize any individual and is contraindicated for use on individuals such as Mr. Workman.
d. The use of pancuronium bromide is arbitrary, serves no legitimate interest, unreasonably risks the infliction of torture, and, at bottom, offends the dignity of humanity: Indeed, it cannot be used in Tennessee to kill a dog. Its use violates equal protection.
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e. The potassium chloride, as used, does not stop the heart. f. The use of this mixture of chemicals causes an unnecessarily painful and prolonged death experienced without total unconsciousness. 74. The use of 5 grams of sodium thiopental in the New April 30, 2007 Protocol for the purpose of “general anesthesia” is false and misleading. See Exhibit 1, p. 35. Sodium thiopental is an ultra-short acting barbiturate wherein the induction of anesthesia occurs quickly, but its effect wears off in a matter of minutes. a. The New April 30, 2007 fails to educate its readers (the execution team) that thiopental not only has a rapid onset, but also has a rapid withdrawal and that is may cause pain if the drug is infiltrated. See Exhibit 1, p. 35. 75. Mr. Workman objects to the use of sodium thiopental in the New April 30, 2007 Protocol for the following reasons: a. Sodium thiopental reacts differently based on a person’s weight. The New April 30, 2007 Protocol fails to address an individual prisoner’s weight as related to the dosage of sodium thiopental necessary to effectively anesthetize him, but instead just indicates that a 5 gram dose will be given. See Exhibit 1, p. 35. In a study published just last week, Leonardis Koniaris found that body weight must be taken into account when using sodium thiopental as the sodium thiopental reacts differently in the body depending on weight. See Leonardis Koniaris et al, Lethal Injection For Execution: Chemical Asphyxiation?, PLOS Medicine, Vol. 4, Issue 4, April 2007. b. The New April 30, 2007 Protocol also fails to address the individual prisoner’s medical condition and history as related to the effectiveness of sodium thiopental. See
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Exhibit 1, p. 35. Several regularly prescribed drugs at Riverbend Maximum Security Institution interfere with the ability of sodium thiopental to act properly as an anesthetic.
c. The New April 30, 2007 Protocol uses sodium thiopental despite the fact that findings made as a result of the autopsy of Robert Coe, who was executed in Tennessee in 2000, show that his serum thiopental levels were 10 mg/l, which as recent research establishes, is inadequate to establish unconsciousness. See Leonidas Koniaris et al, Inadequate Anaesthesia In Lethal Injection For Execution, 365 Lancet 1412-1414 (2005) (Attached as Exhibit 3). The New April 30, 2007 Protocol ignores this medical evidence and instead calls for the same dosage of sodium thiopental (5 grams) that was purportedly given to Robert Coe in 2000. See Exhibit 1, p. 35.
d. The New April 30, 2007 Protocol fails to take into account a new study by Leonard Koniaris examining toxicology reports from prisoners executed by California and North Carolina, along with reports from witnesses to executions in other states, that confirms that some prisoners remained conscious during the administration of lethal drugs due to the ineffectiveness of sodium thiopental. See Leonardis Koniaris et al, Lethal Injection For Execution: Chemical Asphyxiation?, PLOS Medicine, Vol. 4, Issue 4, April 2007 (Attached as Exhibit 2).
e. The New April 30, 2007 Protocol fails to provide for any monitoring of anesthetic depth as is necessary when using sodium thiopental. See Exhibit 1, p.43. The only monitoring provided for by the New April 30, 2007 Protocol is monitoring of the IV site via close-circuit camera, which is inadequate. See Exhibit 1, p. 43. There is no monitoring of the inmate for anesthetic depth or of the IV lines and tubing during the administration of the drugs. This lack of monitoring coupled with the ineffectiveness of sodium thiopental has caused
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numerous botched executions in the United States. i. The two most well-known botched executions in the United States
related to the failure of sodium thiopental. In Florida in December 2006, Mr. Angel Diaz did not get an effective amount of sodium thiopental because the IV lines were improperly seated in his veins with through and through punctures. As a result, none of the materials injected went to the right place. Instead, the drugs entered his bloodstream first through his flesh and muscle tissue. This process caused foot-long chemical burns on both arms from the sodium thiopental. During execution, observers reported that Mr. Diaz moved and tried to mouth words. It took 34 minutes and 14 syringes of chemicals for Mr. Diaz to die, during which he was clearly in pain, struggling for breath and grimacing. Following the Diaz execution, Governor Bush ordered that all executions be stayed while a committee undertook a review of the Diaz execution and of lethal injection protocols in Florida in general, which were exactly the same as the New April 30, 2007 Protocol here. Executions remain stayed in Florida under the Governor’s order. See Florida Commission Report (Attached as Exhibit 4).
ii. During the May 2006 lethal injection of Joseph Lewis Clark, execution team members took over twenty minutes to insert one IV catheter into Mr. Clark’s arm. According to protocol two catheters were necessary, but the team proceeded with only one. After the single IV was inserted and the chemicals began to flow, Mr. Clark remained breathing, legs moving, arms strapped down. After minutes, he sat up several times and told executioners, “It’s not working, it’s not working.” Minutes later, Mr. Clark raised up again and said, “can’t you just give me something by mouth to end this?” At that point, the team closed the curtain, and witnesses heard groans and moans from Mr. Clark as if he was in agony. Witnesses reported
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that the cries of pain lasted for about five or ten minutes and were followed by snores from Mr. Clark. Obviously if the sodium thiopental had worked properly then Mr. Clark would not have been able to cry out in pain, feel pain, or sit up during the execution. Ohio uses a lethal injection protocol that is similar to the New April 30, 2007 Protocol here.
f. As is clear from both medical studies and from experiences of other states, sodium thiopental, as used in the New April 30, 2007 Protocol (without the assistance of an anesthesiologist or certified nurse anesthetist and at such a low dosage that fails to take into account either body weight or drug interaction), does not adequately anesthetize a person prior to the introduction of pancuronium bromide and potassium chloride, resulting in an excruciatingly painful and horrifying death as a result of the conscious asphyxiation by pancuronium bromide followed by the painful intense burn and cardiac arrest of potassium chloride.
76. The use of pancuronium bromide in the New April 30, 2007 Protocol as a “muscle paralytic” that will “assist in the suppression of breathing and ensure death” is unconstitutional. See Exhibit 1, p. 35.
77. Pancuronium Bromide, marketed under the name Pavulon, is a neuromuscular blocking agent which causes paralysis of the skeletal muscles but does not affect the brain or nervous system. Thus, Pancuronium Bromide does not affect consciousness or the sensation of pain or suffering.
78. An individual under the influence of pancuronium bromide, though paralyzed, still has the ability to think, to be oriented to where he is, to experience fear or terror, to feel pain, and to hear. While pancuronium bromide paralyzes the diaphragm to prevent breathing, it does not affect the heart muscle. Thus pancuronium bromide would ultimately cause someone to
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asphyxiate or suffocate to death while still conscious. And if an individual is not properly anesthetized when injected with pancuronium bromide, he will consciously experience extreme pain of suffocation while being completely paralyzed and unable to cry out.
79. Thus, the paralyzing effect of pancuronium bromide also prevents any expression of the pain, horror, or suffering from any other source, such as potassium chloride which will activate the nerves of the venous system causing an extreme burning pain.
80. The New April 30, 2007 Protocol fails to educate it readers (the execution team) regarding the true nature of pancuronium – that its paralytic nature blocks the ability to determine if someone is in pain. See Exhibit 1, p. 35.
81. There is no legitimate penological purpose articulated in the New April 30, 2007 Protocol for the use of pancuronium bromide. See Exhibit 1, p. 35.
82. The use of pancuronium bromide is arbitrary, unreasonable, degrading to human dignity, and serves no legitimate interest. Because pancuronium bromide causes paralysis, suffocation, and the suffering attendant to such paralysis and suffocation, in 2001, Tennessee declared in the “Nonlivestock Humane Death Act” (Tenn. Code Ann. 44-17-301 et seq.) that pancuronium bromide cannot be used to euthanize animals, because its use is not humane. Where the use of pancuronium bromide is not “humane” to use on non-humans, it is arbitrary to claim that its use is “humane” on humans, and its use on humans to cause death violates basic precepts of human dignity.
83. The use of pancuronium bromide serves no legitimate state interest and is not narrowly tailored to any compelling state interest. As Chancellor Ellen Hobbs Lyle has explained:
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[T]he use of Pavulon is . . . unnecessary. . . [T]he State [has] failed to demonstrate any reason for its use. The record is devoid of proof that the Pavulon is needed. Thus, the Court concludes that . . . the State’s use of Pavulon is . . . in legal terms ‘arbitrary.’ Abdur’Rahman v. Sundquist, No. 02-2236-III, In The Chancery Court For The State Of Tennessee, Twentieth Judicial District, p. 13 (June 2, 2003). 84. The use of potassium chloride in the New Protocol as the means for “cardiac arrest and rapid death” is unconstitutional and is false. See Exhibit 1, p.35. See Leonardis Koniaris et al, Lethal Injection For Execution: Chemical Asphyxiation?, PLOS Medicine, Vol. 4, Issue 4, April 2007 (Exhibit 2). Moreover, the New April 30, 2007 Protocol fails to educate its reader (the execution team) about the true nature of potassium chloride – that it would cause extreme pain in someone who is not properly anesthetized. See Exhibit 1, p. 35. 85. The New April 30, 2007 Protocol fails to indicate how persons on the Execution Team are qualified to participate in an execution, or what screening, if any, has been done to insure that these persons do not have a criminal background, mental health issues, personnel and disciplinary issues, drug or alcohol issues. See Exhibit 1, p.32. 86. The New April 30, 2007 Protocol fails to indicate how specialized members of the execution team identified as “two (2) EMTs - Paramedic - Certified Emergency Medical Technician”are qualified to participate, how they were chosen to participate, by whom they were chosen, or what screening, if any, has been done to insure that these members do not have a criminal background, mental health issues, personnel and disciplinary issues, drug or alcohol issues. See Exhibit 1, p.32. Moreover, the New April 30, 2007 Protocol fails to indicate what role these EMTs - Paramedic - Certified Emergency Medical Technician” play on the execution
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team. See Exhibit 1, p. 32. 87. The New April 30, 2007 Protocol fails to indicate how the “three correctional
officers” who “received IV training through the Tennessee Correction Academy by qualified medical professionals” are qualified to participate as part of the IV team, how they were chosen to participate on the IV team, by whom were they chosen to participate, what screening, if any has been done to insure that these specific members do not have a criminal background, mental health issues, personnel and disciplinary issues, drug or alcohol issues, and what screening has been done, if any, to insure that they can competently perform their duties as part of the IV team. See Exhibit 1, p.32. Moreover, the New April 30, 2007 Protocol fails to specifically indicate that these “three correctional officers” actually make up the IV team. See Exhibit 1, p. 21, 32. In addition, the New April 30, 2007 Protocol fails to explain or elaborate on the alleged “IV training through the Tennessee Correction Academy by qualified medical professionals.” See Exhibit 1, p. 32.
88. The New April 30, 2007 Protocol fails to indicate what training is required for members of the execution team. See Exhibit 1, p. 33. The New April 30, 2007 Protocol only indicates that execution team members are required to read the manual and that “the Warden or his designee holds a class during which the manual is reviewed and clearly understood by all participants.” See Exhibit 1, p. 33. The New April 30, 2007 Protocol does not explain how the Warden insures that the manual is clearly understood by all participants nor does it explain who teaches the science and medical technique to be utilized in the manual. See Exhibit 1, p. 33.
89. The New April 30, 2007 Protocol fails to indicate what instruction the Executioner receives, by whom that instruction is given, and what qualifications, education,
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training, and licensing that individual has to provide any such instruction. The New April 30, 2007 Protocol only says that “The Executioner receives initial and periodic instruction from a qualified medical professional.” See New Protocol, p. 33. Moreover the New April 30, 2007 Protocol fails to define the role of Executioner, fails to identify the Executioner, how he or she is chosen, by whom he or she is chosen, what qualifications or training he or she has, or what screening, if any, has been done to insure that the Executioner does not have a criminal background, mental health issues, personnel and disciplinary issues, drug or alcohol issues.
90. The New April 30, 2007 Protocol fails to indicate what training, education, or licensing the IV Team and the medical doctor has, if any, and if any training, education, or licensing is required for their selection for those positions. See Exhibit 1, pp.20, 21, 32. Moreover, the New April 30, 2007 Protocol fails to indicate how the medical doctor is qualified to participate, how he or she is chosen, by whom he or she is chosen, or what screening, if any, has been done to insure that the medical doctor does not have a criminal background, mental health issues, personnel and disciplinary issues, drug or alcohol issues.
91. The New April 30, 2007 Protocol fails to indicate how “the Warden or his designee” chooses one member from the execution team who has access to the Lethal Injection Chemicals during their procurement and storage. See Exhibit 1, p. 36. The protocol indicates that “the Warden or his designee” (the designee is not identified) instructs one member of the execution team to “check[] the supply of chemicals and expiration dates,” to order additional chemicals, to pick up the additional chemicals and deliver them to RMSI, and to “inventory” the chemicals prior to an execution date. See Exhibit 1, p. 36. The New April 30, 2007 Protocol fails to indicate what qualifications, training, and screening is done to insure that the execution
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team member who is given this access to the lethal injection chemicals does not have a criminal background, mental health issues, personnel and disciplinary issues, or drug or alcohol issues.
92. The New April 30, 2007 Protocol fails to indicate who prepares and mixes the “Lethal Injection Chemicals” (other than “one member of the execution team”) and what training, education, or licensing any member of the execution team has in the preparation and mixing of chemicals. See Exhibit 1, p. 38. Based on the vague descriptions of the execution team, there is no one who has pharmaceutical training or knowledge of drug compounding to mix the drugs.
93. Moreover, the New April 30, 2007 Protocol provides only that “another member of the execution team observes and verifies that the procedure has been carried out correctly.” See Exhibit 1, p. 38. Again, the New April 30, 2007 Protocol fails to indicate what training, education, or licensing, or any other qualifications any execution team member has for observing the mixing of the “Lethal Injection Chemicals” to make sure it is done correctly. There is no quality control to assure that the chemicals have actually been mixed correctly and at the proper dosage.
94. The New April 30, 2007 Protocol fails to include the proper instructions for mixing sodium thiopental by failing to identify what the sodium thiopental should be mixed in, whether it is to be mixed all together (10 boxes in one mixing container) or one box at a time, what instrument is to be used to actually mix the solution, how many syringes should be filled per box of powder, or what precautions are taken to avoid settling or contamination of the sodium thiopental. See Exhibit 1, p. 38.
95. Under the New April 30, 2007 Protocol, for Philip Workman, who was an IV drug
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user prior to his incarceration, there is a greater risk that the veins in his arms will be inaccessible and that surgical measures, like the cutdown proposed by the New April 30, 2007 Protocol, will be necessary to insert the IV catheters. See Exhibit 1, pp. 41, 67.
a. The New Protocol indicates that a cut-down may be used but does not indicate at what point in the procedure the IV technicians would resort to this option or who would make the determination that a cutdown is necessary.
b. The New April 30, 2007 Protocol is silent as to the physician’s qualifications to perform a cutdown. Only 15% of physicians in the United States are qualified to perform a cutdown.
c. Any cutdown procedure is a dangerous and antiquated medical procedure that is rarely performed in the practice of medicine.
d. A cutdown procedure involves making a series of sharp incisions through the skin and through several layers of connective tissue, fat, and muscle - all with only local anesthetic – to expose a suitable vein for IV catheterization.
e. A cutdown is a complicated medical procedure requiring equipment and skill that has a very high probability of not proceeding properly in the absence of adequately trained and experienced personnel, and without the necessary equipment. If done improperly, the cut-down process can result in very serious complications including severe hemorrhage (bleeding), pneumothorax (collapse of a lung which may cause suffocation), and severe pain.
f. Thus, cutdowns are out-dated and are only used in clinical situations that are not pertinent to executions by lethal injection, including emergency scenarios where there has been extensive blood loss, and in situations involving very small pediatric patients and premature
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infants. g. Cutdowns have been replaced by the percutaneous technique which is less
invasive, less painful, less mutilating, faster, safer, and less expensive than the cut-down technique.
h. The use of a cutdown as a back-up before trying to find percutaneous access is a profound departure from standard medical methods and from the standard of care used in executions in other jurisdictions.
i. To use a cut-down as the backup method of achieving IV access would defy contemporary medical standards and would be a violation of any modern standard of decency.
j. The New April 30, 2007 Protocol is completely silent on the procedures that will be followed by the physician should a cutdown become necessary. See Exhibit 1, pp. 41, 67.
96. The New April 30, 2007 Protocol fails to indicate whose responsibility it is to watch the IV lines for leaks in the tubing, junctions, and valves during the administration of the Lethal Injection Chemicals and what any member of the execution team would do should a leak be found. See Exhibit 1, p. 43. A leak in the tubing, junctions, or valves can result in the failure to properly administer a full dosage of anesthetic to the inmate, resulting in an excruciatingly painful and horrifying death.
97. The only monitoring prescribed by the New April 30, 2007 Protocol during the administration of the Lethal Injection Chemicals is “by watching the monitor in his room which displays the exact location of the catheter(s) by means of a pan-tilt zoom camera” and allows for
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the “monitoring the catheter sites for swelling or discoloration.” See Exhibit 1, p. 43. 98. Thus, there is no monitoring of the IV tubing or the drip chamber during the
administration of Lethal Injection Chemicals. Moreover, the monitoring of an IV site from a remote camera is not medically proper – in order to insure that an IV does not migrate, infiltrate, move, and is working properly, the IV site must be monitored from the bedside. The New April 30, 2007 Protocol does not provide for anyone to monitor the IV site from the bedside, nor is there any qualified medical personnel in the room to do any personal, medical monitoring of the process. See Exhibit 1, p. 43.
99. The New April 30, 2007 Protocol fails to indicate what Defendants will do if the inmate has small veins or general venous incompetence and which member of the execution team will make a decision surrounding those issues. Small veins or venous incompetence can result in an inability to properly administer a full dosage of anesthetic to the inmate, resulting in an excruciatingly painful and horrifying death. See Exhibit 1, p. 41. Moreover, the New April 30, 2007 Protocol fails to identify any execution team member who has medical training in general venous incompetence.
100. The New April 30, 2007 Protocol fails to indicate what any member of the execution team will do if the catheter migrates during the lethal injection. See Exhibit 1, p. 67. The migration of an IV catheter can result in an inability to properly administer a full dosage of anesthetic to the inmate, resulting in an excruciatingly painful and horrifying death.
101. The New April 30, 2007 Protocol fails to indicate what any member of the execution team will do if the inmate has a collapsed vein, perforation or leakage of the vein, or a blown vein from the pressure of the syringe plunger. See Exhibit 1, pp. 41-42, 67. A collapsed,
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torn, or blown vein can result in an inability to properly administer a full dosage of anesthetic to

the inmate, resulting in an excruciatingly painful and horrifying death.

102. The New Protocol fails to indicate which member of the execution team, if any,

is responsible for loosening the tourniquets or restraining straps. See Exhibit 1, pp. 41-42. The

failure to properly loosen the tourniquets or restraining straps on an inmate can result in an

inability to properly administer a full dosage of anesthetic to the inmate, resulting in an

excruciatingly painful and horrifying death.

103. The New April 30, 2007 Protocol fails to indicate the length of time between the

administration of each drug. See Exhibit 1, pp. 43-44. This is important to ensure that an inmate

is adequately anesthetized by the sodium thiopental prior to the introduction of the pancuronium

bromide and potassium chloride.

.

104. The New April 30, 2007 Protocol fails to indicate who, if anyone, is monitoring

the inmate during the administration of the drugs to assure that the sodium thiopental (anesthesia)

is working. See Exhibit 1, pp. 43-44.

105. The New April 30, 2007 Protocol fails to indicate the presence of an

anesthesiologist or a certified nurse anesthetist who could properly monitor consciousness. See

Exhibit 1, pp. 43-44. Indeed, there is no one present on the execution team who is qualified to

monitor the anesthetic depth of the inmate. Moreover, the New April 30, 2007 Protocol fails to

indicate the presence of any medical technology that might be used to monitor consciousness.

See Exhibit 1, pp. 43-44.

106. The New April 30, 2007 Protocol does not indicate what plan is in place if the

execution must be stopped because the Governor or the courts have entered a stay or reprieve.

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See Exhibit 1, p. 67. The New April 30, 2007 Protocol does not indicate if anyone on the execution team is qualified to resuscitate the inmate or if any of the necessary equipment is present for resuscitation.
107. The New April 30, 2007 Protocol was prepared by the Governor and TDOC despite their awareness of the risks inherent in the New April 30, 2007 Protocol, based on prior lethal injection litigation in this state and ongoing lethal injection litigation in 14 other states (all of which have almost identical protocols to the New Protocol), but persisted with deliberate indifference in promulgating a protocol that has been declared unconstitutional by other federal courts and unusable by Governors of other states, and that will cause an excruciatingly painful and horrifying death from the use of these three drugs by untrained personnel. See Report on Administration of Death Sentences in Tennessee.
108. The New April 30, 2007 Protocol was prepared without consultation with and the requesting of documents from correctional officials, state officials, or medical experts with experience in lethal injection and lethal injection litigation from any of the listed states or jurisdictions as a part of its review and development of the New April 30, 2007 Protocol despite their knowledge of the ongoing lethal injection litigation in multiple states and jurisdictions.
109. The New April 30, 2007 Protocol that was promulgated by TDOC and approved by the Governor, is one-sided, unscientific and fails to take into account the serious known and demonstrated risks of the use of the chemicals and procedures selected for the New April 30, 2007 Protocol.
110. TDOC’s failure to properly consult, review, and research in promulgating its New
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April 30, 2007 Protocol (a failure which was approved by the Governor), despite the ready availability of experienced state officials and medical experts, demonstrates a deliberate indifference to the excruciatingly painful and horrifying death that will result from the use of these three drugs by untrained personnel under the new execution protocol. See Exhibit 5.
111. The New April 30, 2007 Protocol, including the combination of chemicals (sodium thiopental, pancuronium bromide, and potassium chloride); the lack of proper training, qualifications, screening and review of the persons involved in the process; the absence of standardized procedures for administration of the chemicals; the absence of a sufficient anesthetic and any monitoring of anesthetic depth; and the absence of a back-up plan should problems arise during the protocol, creates a grave and substantial risk that Mr. Workman will be conscious throughout the execution process and, as a result, will experience an excruciatingly painful and protracted death in violation of his constitutional rights and substantive due process under the Eighth, Ninth, and Fourteenth Amendments.
112. In addition, the New April 30, 2007 Protocol, devised and promulgated by the TDOC and approved by the Governor violates evolving standards of decency. See Trop v. Dulles, 356 U.S. 86 (1958).
113. Finally, the New April 30, 2007 Protocol, devised and promulgated by TDOC and approved by the Governor, demonstrates a deliberate indifference to the excruciatingly painful and horrifying death that will result from its use in violation of the Fourteenth Amendment.
114. The New April 30, 2007 Protocol fails to indicate how long the IV tubing is, what connections and junctures are used in the tubing, what kind of stopcock is used, or the size of the IV catheter.
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115. The New April 30, 2007 Protocol fails to indicate what Defendants will do if a retrograde injection occurs because the stopcock is turned the wrong way nor does it indicate whose job it is to turn the stopcock. A retrograde injection can result in the failure to properly administer a full dosage of anesthetic to the inmate, resulting in an excruciatingly painful and horrifying death.
116. The New April 30, 2007 Protocol fails to indicate what Defendants will do if the inmate has a collapsed vein, perforation or leakage of the vein, or a blown vein from the pressure of the syringe plunger. A collapsed, torn, or blown vein can result in an inability to properly administer a full dosage of anesthetic to the inmate, resulting in an excruciatingly painful and horrifying death.
117. The New April 30, 2007 Protocol fails to indicate which member of the Execution, IV, or Extraction team is responsible for loosening the tourniquets or restraining straps. The failure to properly loosen the tourniquets or restraining straps on an inmate can result in an inability to properly administer a full dosage of anesthetic to the inmate, resulting in an excruciatingly painful and horrifying death.
118. The New April 30, 2007 Protocol fails to indicate the length of time between the administration of each drug.
119. The New April 30, 2007 Protocol fails to indicate whose responsibility it is to monitor the IV catheter during the administration of the drugs.
120. The New April 30, 2007 Protocol fails to indicate who or what, if anyone, on the Execution Team is monitoring anesthetic depth or what physical symptoms they would monitor if they were attempting to monitor anesthetic depth.
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121. The New April 30, 2007 Protocol does not indicate whose responsibility it is to
determine whether the injection of the drugs should be repeated if the Plaintiff is not dead.
122. The New April 30, 2007 Protocol does not indicate what plan is in place if the
execution must be stopped because the Governor or the courts have entered a stay or reprieve.
The New April 30, 2007 Protocol does not indicate if anyone on the Execution Team is qualified
to resuscitate the inmate or if any of the necessary equipment is present for resuscitation.
123. According to the Governor and the TDOC, the TDOC will follow this New April
30, 2007 Protocol to perform Plaintiff’s execution.
124. Dr. Mark Heath, Assistant Professor of Clinical Anesthesiology at Columbia
University who has reviewed and/or testified about lethal injection procedures in twenty-seven
jurisdictions, has reviewed the New April 30, 2007 Protocol and reached the following
conclusion:
Based on my research into methods of lethal injection used by various states and the federal government, and based on my training and experience as a medical doctor specializing in anesthesiology, it is my opinion stated to a reasonable degree of medical certainty that, given the apparent absence of a central role for a properly trained professional in TDOC’s execution procedure, the characteristics of the drugs or chemicals used, the failure to understand how the drugs in question act in the body, the failure to properly account for foreseeable risks, the design of a drug delivery system that exacerbates rather than ameliorates the risk, the TDOC has created an revised execution protocol that does little to nothing to assure they will reliabily achieve humane executions by lethal injection.
See Declaration of Dr. Mark Heath, Exhibit 2, ¶ 69.
125. A growing body of evidence, including medical evidence, eyewitness
observations, and veterinary studies, persuasively demonstrates that Tennessee’s New April 30,
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2007 Protocol creates a significant risk Mr. Workman will fail to receive adequate anesthesia and
will be conscious for the duration of his execution.
126. Indeed, Tennessee’s New April 30, 2007 Protocol has been described by Dr. Mark
Heath as a “revised execution protocol that does little to nothing to assure [the TDOC] will
reliably achieve humane executions by lethal injection..” See Declaration of Dr. Mark Heath,
Exhibit 2, ¶ 69.
127. The New April 30, 2007 Lethal Injection Protocol Creates a Tremendous Risk of
Unnecessary Pain During Executions by Imposing Conditions Conducive to Botched Executions
and Failing to Compensate for these Conditions.
128. The New April 30, 2007 Protocol instructs that executions shall be carried out by
means of an IV line inserted into a vein and monitored and controlled remotely, from a separate
room. See New April 30, 2007 Protocol, Exhibit 1, pp. 40-44. This line is inserted into a
“usable” vein by an EMT, with unspecified training and credentials. Id. at pp. 32,41. Once a
flow of saline solution has been started and the inmates hands are taped in place, “the members
of the IV team leave the Execution Chamber.” Id. at p. 43. Dr. Mark Heath discusses the risks
associated with this procedure:
The intravenous (“IV”) catheters are to be inserted by a team of persons whom the TDOC represents as having, at some time, training or background as emergency medical technicians. The TDOC has not presented any information which shows that these persons are currently licensed or credentialed as an emergency medical technicians or whether placement of IV lines is currently part of any team members’ regular occupation or duties. The protocol does not require that the injection team members be qualified in any particular way. The absence of currency with IV access procedures would render the IV team unqualified to perform IV access in an execution context.
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See Declaration of Dr. Mark Heath, Exhibit 2, ¶ 18.
129. If the EMT cannot gain access to an inmate’s vein, the New April 30, 2007
Protocol instructs that a doctor will do a cutdown. See New April 30, 2007 Protocol, Exhibit 1,
pp 41, 67. There are serious dangers associated with a cutdown procedure:
When peripheral IV access is not possible, the TDOC will use a cut down to achieve venous access. A “cut-down” is a complex medical procedure requiring equipment and skill that are not accounted for in Tennessee’s protocol on cut down procedures. It has a very high probability of not proceeding properly in the absence of adequately trained and experienced personnel, and without the necessary equipment. If done improperly, the “cutdown” process can result in very serious complications including severe hemorrhage (bleeding), pneumothorax (collapse of a lung which may cause suffocation), nerve injury, and severe pain. It is well documented that lethal injection procedures in other states require the use of central intravenous lines. As is widely recognized in the medical community, administration of intravenous medications and the management of intravenous systems are complex endeavors with significant risks and complications.
Cut-down procedures are an outdated method of achieving venous access for the administration of anesthetic drugs. The cut-down procedure has been virtually completely supplanted by the “percutaneous” technique for achieving central venous access. The percutaneous technique is less invasive, less painful, less mutilating, faster, safer, and less expensive than the cut-down technique. I have personally never used the cut-down technique to achieve intravenous access for drug delivery to a patient. The cutdown technique is still used in clinical situations that are not pertinent to executions by lethal injection, including emergency scenarios where there has been extensive blood loss, and in situations involving very small pediatric patients and premature infants. These are the only situations in which I have seen colleagues perform cut-down procedures for the administration of drugs. That Tennessee intends to use a cut down procedure on Mr. Workman if it can not successfully place peripheral IVs after 4 attempts is unconscionable. To use a cut-down as the backup method of achieving IV access would defy contemporary medical
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standards and would be a violation of any modern standard of decency. The ready availability of a superior alternative technique for achieving central IV access, should it be necessary, means that the TDOC’s adherence to the outdated cut-down method would represent the gratuitous infliction of pain and mutilation to the condemned prisoner. Most other states have abandoned the use of the cutdown procedure as a means of obtaining IV access during executions. See Declaration of Dr. Mark Heath, Exhibit 2, pp. 21-23, ¶¶64-66. 130. After veinous access or access to a vein through a cutdown is achiever, the Executioner, who is never identified in the protocol in any way whatsoever, selects “either the right or left solution set.” See New April 30, 2007 Protocol, Exhibit 1, p. 43. 131. Upon the Warden’s signal, the “Executioner receives the first syringe from the member of the IV team and inserts and twists it into the extension line.” Id. 132. The Executioner then proceeds to inject a total of eleven separate syringes containing the three drug cocktail – 4 doses of sodium thiopental, followed by a saline flush, followed by 2 doses of pancuronium bromide, followed by a saline flush, followed by 2 dose of potassium chloride, and finally a saline flush. Id. at p. 44. After the 11 syringes have been “pushed” into the extension line (which is at least seven feet and one inch in length), the “Executioner signals the Warden that all of the LIC’s and saline have been administered.” Id. at p. 43. 133. Administering the lethal drugs in the manner dictated by the New April 30, 2007 Protocol creates the risk that the sodium thiopental will not be administered properly and the inmate will not be rendered fully unconscious by the time that the other two drugs are administered. As Dr. Heath explains:
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Of note, there is no description whatsoever of the actual mechanics of the administration of the drugs (page 65). Instead, the protocol elides the necessary step-by-step instructions, moving from “The Warden gives the signal to proceed and the Executioner begins to administer the first chemical….” to “Following the completion of the lethal injection process…” This is non-sensical, and it is also a departure from the written protocols of many other states, which describe in detail the intended mechanical steps to be taken during the sequence of injections. While Tennessee’s omission might in theory be acceptable if the drugs were to be administered by an individual possessing the requisite demonstrated professional experience to undertake this activity, it is in fact not acceptable if it is the case that it is being done by personnel who lack such experience and qualifications. I know this from, among other things, my experience teaching medical students and junior anesthesiology residents in the operating room. Despite a significant degree of immersion in the clinical setting, medical students and junior anesthesiology residents often initiate or make critical errors in their handling and use of intravenous tubing, injection sites, and syringes. Part of my job, as a practitioner in a teaching hospital, it to intercept such errors on the part of junior personnel, to apprise them of their errors, and to instruct them on how to avoid, detect, and correct such errors. It is not acceptable, under any standard, to permit personnel who have not undergone such elbow-to-elbow training to perform lethal injection, particularly in view of the inclusion of pancuronium and potassium in the currently proposed procedure.
Declaration of Dr. Mark Heath, Exhibit 2, pp 5-6, ¶ 9.
134. The risk that inmates will be conscious during their executions is in part inherent
in the use of sodium thiopental itself; TDOC has chosen to use an ultrashort-acting anesthetic
that is extremely sensitive to errors in administration.
135. In medical situations, sodium thiopental is used only for specific, expeditious
tasks, and only by personnel who have considerable expertise in anesthesia. See Id., pp. 14-15,
¶¶ 50-53.
136. Monitoring the effects of sodium thiopental, like those of other ultrashort-acting
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anesthetics, requires considerable expertise in anesthesia. Id.
137. Moreover, because sodium thiopental is extremely unstable, it must be carefully
and properly mixed so that it does not crystallize, a technical task that requires significant
training in pharmaceutical calculations. Id. at ¶ 54.
138. Thus, sodium thiopental’s instability makes it more likely to be administered
incorrectly, and its fast-acting properties heighten the risk that improper administration will result
in ineffective anesthesia and consciousness. Again, Dr. Heath writes:
Thiopental is an ultrashort-acting barbiturate that is intended to be delivered intravenously to induce anesthesia. In typical clinical doses, the drug has both a quick onset and short duration, although its duration of action as an anesthetic is dose dependant.
When anesthesiologists use thiopental, we do so for the purposes of temporarily anesthetizing patients for sufficient time to intubate the trachea and institute mechanical support of ventilation and respiration. Once this has been achieved, additional drugs are administered to maintain a “surgical depth” or “surgical plane” of anesthesia (i.e., a level of anesthesia deep enough to ensure that a surgical patient feels no pain and is unconscious). The medical utility of thiopental derives from its ultrashort-acting properties: if unanticipated obstacles hinder or prevent successful intubation, patients will likely quickly regain consciousness and resume ventilation and respiration on their own.
The benefits of thiopental in the operating room engender serious risks in the execution chamber. The duration of unconcsiousness provided by thiopental is dose-dependent. However, if the intended amount of thiopental fails to reaches the condemned inmate’s brain (as can occur as a result of an infiltration, leakage, mixing error, or other causes), and the condemned inmate receives a near surgical dose of thiopental, the duration of narcosis will be brief and the inmate could reawaken during the execution process. Then, a condemned inmate in Tennessee would suffer the same fate that apparently befell Mr. Angel Diaz in Florida who was intended to receive a 5 gram dose of thiopental just as Mr. Workman is intended to receive, but who did not, and then
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apparently experienced a conscious or semi-conscious response to the execution process.
Many foreseeable situations exist in which human or technical errors could result in the failure to successfully administer the intended dose. The TDOC’s procedure both fosters these potential problems and fails to provide adequate mechanism for recognizing these problems, and it does these things needlessly and without legitimate reason.
Id. at pp. 14-15, ¶¶50-53.
139. The danger of improper administration of sodium thiopental is exacerbated by the
fact that the New April 30, 2007 Protocol does not require medically trained personnel to
supervise or assist in any way in the medical tasks necessary to prepare for the execution or
during the execution. See New April 30, 2007 Protocol, Exhibit 1, p. 32 (stating only that the
person who inserts the IV shall have either some unspecified training, or be “authorized by law”
to initiate the procedure). These critical, medical tasks include: mixing the sodium thiopental
solution; setting up the IV line and associated equipment in order to ensure that fluids do not
leak and are not misdirected; finding a usable vein and properly inserting the IV line in the proper
direction into the vein; and, verifying that the drugs are flowing into the inmate’s vein rather than
into surrounding tissue.
140. All of these critical, medical tasks require a high degree of specialized training
which the New April 30, 2007 fails to acknowledge or account for in any way:
It is my opinion that, to reasonably minimize the risk of severe and unnecessary suffering during the TDOC’s execution by lethal injection, there must be: proper procedures that are clear and consistent; qualified personnel to ensure that anesthesia has been achieved prior to the administration of pancuronium bromide and potassium chloride; qualified personnel to select chemicals and dosages, set up and load the syringes, administer “pre-injections,”
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insert the IV catheter, and perform the other tasks required by such procedures; and adequate inspection and testing of the equipment and apparatus by qualified personnel. The TDOC’s procedures for implementing lethal injection, to the extent that they have been made available, provide for none of the above.
Id. at ¶ 67.
141. There are very serious and foreseeable problems with the New April 30, 2007
Protocol’s failure to provide for any medically trained and qualified personnel to administer
sodium thiopental:
Because of these foreseeable problems in administering anesthesia, in Tennessee and elsewhere in the United States, the provision of anesthetic care is performed only by personnel with advanced training in the medical subspecialty of Anesthesiology. The establishment of a surgical plane of anesthesia is a complex task which can only reliably be performed by individuals who have completed the extensive requisite training to permit them to provide anesthesia services. See Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, 104 Anesthesiology 847, 859 Appendix 1 (Apr. 2006) (recommending the use of “multiple modalities to monitor depth of anesthesia’). If the individual providing anesthesia care is inadequately trained or experienced, the risk of these complications is enormously increased. The President of the American Society of Anesthesiologists, writing about lethal injection, recently stated that “the only way to assure [a surgical plane of anesthesia] would be to have an anesthesiologist prepare and administer the drugs, carefully observe the inmate and all pertinent monitors, and finally to integrate all this information.” Orin F. Guidry, M.D., Message from the President: Observations Regarding Lethal Injection (June 30, 2006).
In Tennessee and elsewhere in the United States, general anesthesia is administered by physicians who have completed residency training in the specialty of Anesthesiology, and by nurses who have undergone the requisite training to become Certified Registered Nurse Anesthetists (CRNAs). Physicians and nurses who have not completed the requisite training to become anesthesiologists or CRNAs are not permitted to provide general
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anesthesia.
In my opinion, individuals providing general anesthesia in the Tennessee prison should not be held to a different or lower standard than is set forth for individuals providing general anesthesia in any other setting in Tennessee. Specifically, the individuals providing general anesthesia within Tennessee’s prisons, including during execution procedures, should possess the experience and proficiency of anesthesiologists and/or CRNAs. Conversely, a physician who is not an anesthesiologist or a nurse who is not a CRNA or any person who lacks the requisite training and credentials should not be permitted to provide general anesthesia within Tennessee’s prisons (or anywhere else in Tennessee or the United States).
There is no evidence, at this time, that any person on the TDOC’s injection team has any training in administering anesthesia, or, if personnel are given training, what that training might be. The absence of any details as to the training, certification, or qualifications of injection personnel raises critical questions about the degree to which condemned inmates risk suffering excruciating pain during the lethal injection procedure. The great majority of nurses are not trained in the use of ultrashort-acting barbiturates; indeed, this class of drugs is essentially only used by a very select group of nurses who have obtained significant experience in intensive care units and as nurse anesthetists. Very few paramedics are trained or experienced in the use of ultrashort-acting barbiturates and/or pancuronium. Based on my medical training and experience, and based upon my research of lethal injection procedures and practices, inadequacies in these areas elevate the risk that the lethal injection procedure will cause the condemned to suffer excruciating pain during the execution process. Failure to require that the injection team have training equivalent to that of an anesthesiologist or a CRNA compounds the risk that inmates will suffer excruciating pain during their executions.
In addition to apparently lacking the training necessary to perform a lethal injection, the TDOC’s protocol imposes conditions that exacerbate the foreseeable risks of improper anesthesia administration described above, and fails to provide any procedures for dealing with these risks. Perhaps most disturbingly, the protocol makes no mention of the need for effective monitoring of the inmate’s condition or whether he is anesthetized and unconscious. After IV lines are inserted and the execution begins,
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it appears that the injection team will be in a different room from the prisoner, and thus will not have the ability to monitor the IV deliver system and catheter sites as they would if they were at “the bedside”. Accepted medical practice, however, dictates that trained personnel are physically situated so that they can monitor the IV lines and the flow of anesthesia into the veins through visual and tactile observation and examination. The apparent lack of any qualified personnel present in the chamber during the execution thwarts the execution personnel from taking the standard and necessary measures to reasonably ensure that the thiopental is properly flowing into the inmate and that he is properly anesthetized prior to the administration of the pancuronium bromide and potassium. Other states have taken steps to place personnel with medical backgrounds actually within the execution chamber for the purpose of monitoring the IV delivery system during the injection process.
In my opinion, having a properly equipped, trained, and credentialed individual examine the inmate after the administration of the thiopental (but prior to, during, and after the administration of pancuronium, until the prisoner is pronounced dead) to verify that the inmate is completely unconscious would substantially mitigate the danger that the inmate will suffer excruciating pain during his execution. This is the standard of care, and in many states the law, set forth for dogs and cats and other household pets when they subjected to euthanasia by potassium injection. Yet the TDOC protocol does not apparently provide for such verification.
Indeed, it appears that departments of correction around the country are now agreeing that some assessment of anesthetic depth is required to insure a humane execution. As a result of my participation in lethal injection litigations around the country I have become aware that the State of Indiana and the State of Florida now concede that some attempt at measuring or assessing anesthetic depth should be performed. Additionally, in Missouri, a federal district judge has ordered that an appropriately qualified person assess anesthetic depth. While Judge Fogel in California has not, to my understanding, issued a final decision regarding the evidence presented to him, it is clear from his discussion of the case that he recognizes that the use of drugs that cause great pain or suffering (such as pancuronium and potassium) places a heightened burden on the execution team and the state to properly monitor and maintain adequate anesthetic depth.
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Declaration of Dr. Mark Heath, Exhibit 2, ¶¶57-63. 142. In addition, the New April 30, 2007 Protocol makes several of the above tasks
even more prone to mistakes by deviating from established medical practice.
143. Further, because the drugs are administered from another room, IV line extensions
must be used, (see New April 30, 2007 Protocol, Exhibit 1, p. 40), which increases the risk that a
flaw or kink in the IV line will disrupt the flow of drugs. A reasonable medical standard of care
would not permit these unnecessary line extensions.
If the drugs are not at the bedside, which they are not in Tennessee, but are instead in a different room then it will be impossible to maintain visual surveillance of the full extent of IV tubing so that such leaks may be detected. The configuration of the death chamber and the relative positions of the executioners and the inmate in Tennessee will hinder or preclude such surveillance, thereby causing a failure to detect a leak. Leaking IV lines have been noted in executions in other states. The induction of general anesthesia in the medical context, and I believe in the veterinary context, is always a “bedside procedure”; it is never conducted by the administration of drugs in tubing in one room that then is intended to travel into the body of a person in another room. Id. at ¶¶ 54 (e). 144. The risk of inadequate anesthesia is compounded by the fact that the New April
30, 2007 Protocol requires that only the Warden, who is not a qualified medical professional, be
present in the execution chamber when any of the drugs are administered. The protocol thus
prevents qualified personnel from obtaining any sort of visual or other verification that the drugs
are actually being administered to the inmate, or that the sodium thiopental anesthetic has taken
effect. Proper monitoring of the flow of fluids into the vein requires a clear view of the IV site,
and also tactile examination of the skin surrounding the IV site to verify skin firmness and
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temperature. See Declaration of Dr. Mark Heath, Exhibit 2, pp. 15-18, ¶¶ 54 (a)-(l). 145. Proper monitoring of the inmate would also necessitate that a person trained
specifically in assessing anesthetic depth closely observe the inmate at all times after the sodium thiopental is administered. Only persons trained in anesthesia are able to assess properly whether the inmate has attained the degree of unconsciousness necessary to render him insensitive to pain. Id. at ¶¶ 21-23. For this reason, the American Veterinary Medical Association (AVMA) requires that persons euthanizing animals be “competent in assessing depth [of anesthesia] appropriate for administration of potassium chloride.” See 2000 Report of the AVMA Panel on Euthanasia, 218 J. Am. Veterinary Med. Ass’n 669, 681 (2001). Similarly, Tennessee requires extensive training in the use of anesthesia for all technicians authorized to euthanize animals.
146. Thus, the New April 30, 2007 Protocol, by requiring that non-medical personnel remotely inject an unstable drug into inmates without proper monitoring, creates conditions that are highly conducive to serious errors that could cause the sodium thiopental to be administered improperly.
147. In the face of this danger, the protocol fails to take even the most rudimentary steps towards minimizing the obvious potential problems. Indeed, the protocol is stunning in its complete failure to acknowledge any risk or potential problem other than tampering with the lethal drugs in the days leading up to the execution. See New April 30, 2007 Protocol, Exhibit 1, pp. 36-37.
148. Examples of the New April 30, 2007 Protocol’s failure to account for the very risks that it creates are numerous. Those risks include: Errors in Drug Preparation; Errors in Labeling of Syringes, Error in Selecting the Correct Syringe, Error in Correctly Injecting the
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Drug into the Intravenous Lin, The IV tubing may leak, Incorrect Insertion of the Catheter,
Migration of the Catheter, Perforation or Rupture ore Leakage of the Vein, Excessive Pressure on
the Syringe Plunger, Errors in Securing the Catheter, Failure to Properly Loosen or Remove the
Tourniquet, Impaired Delivery Due to Restraining Straps. See Declaration of Dr. Mark Heat,
Exhibit 2, pp. 15-18 ¶¶ 54(a)-(l). Dr. Heath concludes:
These types of drug administration problems are not uncommon in the practice of medicine. A number of medical publications detail exactly these types of administration issues. For example, the National Academy of Sciences Institute on Medicine has just published the report of the Committee on Identifying and Preventing Medication Errors, which details the rates of drug preparation and administration errors in hospital setting and concludes “[e]rrors in the administration of IV medications appear to be particularly prevalent.” PREVENTING MEDICATION ERRORS: QUALITY CHASM SERIES 325-60 (Philip Aspden, Julie Wolcott, J. Lyle Bootman, Linda R. Cronenwett, Eds. 2006); id. at 351. Likewise a recent study shows that “drug-related errors occur in one out of five doses given to patients in hospitals.” See Bowdle, T. A., Drug Administration Errors from the ASA [Am. Soc. Anesthesiologists] Closed Claims Project, 67(6) ASA NEWSLETTER, 11-13 (2003). This study recognizes that neuromuscular blockers have been administered to awake patients and to those who have had inadequate doses of general anesthetic. Id.
Exhibit 2, p. 18, ¶ 55.
149. Despite the New April 30, 2007 Protocol’s insistence on removing all personnel
from the execution chamber before any drugs are administered, the protocol does not anticipate
and provide for the problems that could arise as a result of this policy.
150. There is no procedure for testing or verifying the efficacy of the extended IV
tubing.
151. Nor is there a procedure for entering the chamber during the execution should any
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of the equipment malfunction or the inmate somehow indicate that something has gone awry.
152. Finally, and most disturbingly, the protocol apparently does not require execution
personnel to verify in any manner, even through the windows of the execution chamber, that the
inmate has been rendered unconscious by the sodium thiopental.
Because of the potential for an excruciating death created by the use of potassium chloride and the risk of conscious asphyxiation created by the use of the pancuronium bromide, it is necessary to induce and maintain a deep plane of anesthesia. The circumstances and environment under which anesthesia is to be induced and maintained in a Tennessee execution create, needlessly, a significant risk that inmates will suffer. It is my opinion, stated to a reasonable degree of medical certainty, that the lethal injection procedures selected by the TDOC subject condemned inmates to an increased and unnecessary risk of experiencing excruciating pain in the course of execution. Presumably, because of the TDOC’s awareness of the potential for excruciating pain evoked by potassium, the protocol plans for the provision of general anesthesia by the inclusion of thiopental. When successfully delivered into the circulation in sufficient quantities, thiopental causes sufficient depression of the nervous system to permit excruciatingly painful procedures to be performed without causing discomfort or distress. Failure to successfully deliver into the circulation a sufficient dose of thiopental would result in a failure to achieve adequate anesthetic depth and thus failure to block the excruciating pain. The TDOC’s procedures do not comply with the medical standard of care for inducing and maintaining anesthesia prior to and during a painful procedure. Likewise, the TDOC’s procedures are not compliant with the guidelines set forth by the American Veterinary Medical Association for the euthanasia of animals.
Declaration of Dr. Mark Heath, Exhibit 2, p. 14, ¶¶ 47-49.
153. Thus, despite the foreseeable risks created by the protocol and described above,
the New April 30, 2007 Protocol simply does not acknowledge, much less provide for, the
possibility that the five-gram dose of sodium thiopental will fail to render the inmate
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unconscious. 154. The New April 30, 2007 Protocol thus both creates an unacceptable quantum of
risk that the inmate will not be anesthetized and therefore will suffer excruciating pain during his execution, and also fails utterly to account for these obvious contingencies and instruct personnel on how to react to or prevent them.
155. In light of the fact that sodium thiopental is an ultra-short acting anesthetic, and the New April 30, 2007 Protocol creates the grave risk that the sodium thiopental will not be properly administered, it is critical that an inmate be able to alert execution personnel should he regain – or never lose – consciousness and that execution personnel have the ability to ascertain whether an inmate is properly anesthetized.
156. Yet the use of pancuronium bromide in combination with sodium thiopental effectively prevents an inmate from alerting anyone in any way to the fact that he is conscious and experiencing excruciating pain and prevents anyone, even a trained anesthesiologist, from ascertaining whether the inmate is properly anesthetized. It is for this very reason that the use of pancuronium bromide is prohibited for use on animals. Despite the grave dangers and illegality of its use, the New April 30, 2007 Protocol incorporates pancuronium bromide even though it serves no legitimate purpose within its lethal injection process. See New April 30, 2007 Protocol, Exhibit 1, p. 35.
157. Pancuronium is a neuromuscular blocking agent that blocks nerve cells from interacting with muscle tissue, therefore paralyzing the inmate’s muscles, including those of the chest and diaphragm. A patient given pancuronium bromide alone would slowly suffocate to death; thus, the unanesthetized experience of the effects of pancuronium bromide would in itself
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involve extraordinary suffering, as the inmate struggled to breathe. The drug does not affect the brain or nerves themselves, however, so an unanesthetized patient would remain completely conscious, but due to the paralysis would be completely unable to communicate either verbally or by movement the fact that he is conscious. See Declaration of Dr. Mark Heath, Exhibit 2, ¶¶ 3739.
158. Pancuronium bromide also prevents observers from determining whether an inmate is conscious. According to Dr. Mark Heath, the drug’s paralytic effect is so complete that it would be difficult for even an anesthesiologist to assess consciousness. See Declaration of Dr. Mark Heath, Exhibit 2, ¶ 38.
159. Thus, even if the New April 30, 2007 Protocol provided some mechanism by which personnel could monitor the inmate’s consciousness (which it does not), the use of pancuronium bromide all but ensures that it would be impossible to determine visually whether the inmate is still able to feel pain. Should an inmate retain or regain consciousness after the sodium thiopental is administered, the inmate would suffer slow suffocation as well as the excruciating pain of the potassium chloride, all while being completely paralyzed and unable to communicate. Id. at ¶ 42.
160. It is precisely this risk of the combination of ineffective sodium thiopental and paralyzed consciousness from pancuronium bromide that has led at least nineteen (19) states to prohibit the use of a sedative in conjunction with a neuromuscular blocking agent like pancuronium bromide to euthanize animals. See Beardslee, 395 F.3d at 1073 & n.9 (listing the relevant state laws and noting that this evidence is “somewhat significant”).
161. In 2001, the state of Tennessee declared as inhumane – and illegal – the use of
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pancuronium bromide or any other neuromuscular blocking agent on non-livestock animals. See Tenn. Code Ann. §44-17-303(c); 44-17-303(j)(criminal sanctions for violation of Humane Death Act: any substance which “acts as a neuromuscular blocking agent . . . may not be used on any nonlivestock aniumal for the purpose of euthanasia.”). The AVMA, moreover, has promulgated guidelines that prohibit the use of a sedative with a drug like pancuronium bromide. See 2000 Report of the AVMA Panel on Euthanasia, 218 J. Am. Veterinary Med. Ass’n 669 (2001), Exhibit 16, p. 681. AVMA also prohibits the use of neuromuscular blocking agents alone, stating that because the drugs cause “respiratory arrest before loss of consciousness, . . . the animal may perceive pain and distress after it is immobilized.” Id. at p. 696, App. 4.
162. The fact that so many states and the nation’s leading veterinary association have condemned as inhumane the use of anesthetics and neuromuscular blocking agents in tandem is persuasive evidence that this combination of drugs is not consistent with evolving standards of decency.
163. As a result, given that the Eighth Amendment prohibits the same infliction of unnecessary pain that cannot be imposed on household pets and other animals, the veterinary avoidance of this method of euthanasia is compelling.
164. Despite the evidence that employing pancuronium bromide is not consistent with basic standards of care for animals, and the fact that the use of pancuronium bromide increases the risk that an inmate will suffer unnecessary pain, the New April 30, 2007 Protocol incorporates pancuronium bromide, alleging that it “assists in the suppression of breathing and ensure[s] death.” See New April 30, 2007 Protocol, Exhibit 1, p. 35.
165. However in the Defendants’ Report, it is clear that pancuronium bromide is used
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simply “because it speeds the death process, prevents involuntary muscular movement that may interfere with the functioning of the IV equipment, and contributes to the dignity of the death process.” See Tennessee Report on Administration of Death Sentences, Exhibit 7, p. 7.
166. What Defendants do not say either in their Report or in the New April 30, 2007 Protocol is that a state court judge has already determined that the use of pancuronium bromide (pavulon) in Tennessee’s lethal injection protocol is arbitrary:
[T]he use of Pavulon is . . . unnecessary. . . [T]he State [has] failed to demonstrate any reason for its use. The record is devoid of proof that the Pavulon is needed. Thus, the Court concludes that . . . the State’s use of Pavulon is . . . in legal terms ‘arbitrary.’ Abdur’Rahman v. Sundquist, No. 02-2236-III, In The Chancery Court For The State Of Tennessee, Twentieth Judicial District, p. 13 (June 2, 2003), Exhibit 17. 167. The paucity of the record accords with Dr. Heath’s opinion that pancuronium bromide serves no legitimate purpose in the execution procedure while greatly increasing the risk of an inmate’s suffering and undetected agony. See Declaration of Dr. Mark Heath, Exhibit 2, ¶ 43. 168. The Defendants’ use of pancuronium bromide to kill Mr. Workman violates the Eighth Amendment. Again, Mr. Workman has shown entitlement to relief on the merits. 169. Potassium Chloride, As Contemplated In The New April 30, 2007 Protocol, Is Wholly Ineffective To Cause Cardiac Arrest 170. According to Dr. James Ramsey, a licensed clinical perfusionist at the Department of Cardiac and Thoracic Surgery at Vanderbilt University Medical Center in Nashville, Tennessee, the potassium component of the New April 30, 2007 Protocol (100 mg/mL of a
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2mEq/ml concentrate)4(See New April 30, 2007 Protocol, Exhibit 1, p.35), “is wholly ineffective in causing electrical arrest of the human heart.” See Affidavit of Dr. James Ramsey, Exhibit 18, p. 1.
171. Dr. Ramsey opines that “it is a pathophysiological impossibility, based upon wellestablished and accepted mathematical equations, for the heart to succumb to electrical arrest due to the potassium component of the lethal injection protocol.” Instead, any cardiac arrest that may occur during an execution by lethal injection under the New April 30, 2007 Protocol, “is entirely due to suffocation and lack of oxygen delivery, and not electrical arrest due to potassium injection.” Id. at p. 3. The suffocation and lack of oxygen delivery is caused by the paralysis induced by the use of pancuronium bromide.
172. The ineffectiveness of the potassium chloride is the result of two false assumptions on the part of Defendants.
173. First, the manner in which the potassium is delivered to the inmate in the New April 30, 2007 Protocol – IV injection – assumes, inaccurately, that “potassium solution in high concentrations would reach the coronary arteries and effect an arrest.” Id. at p.8. However, as Dr. Ramsey opines, “the solution would necessarily have to pass through the lungs (which have the surface area of approximately that of a tennis court), during which potassium concentrations would fall dramatically.” Id.
174. Second, Defendants have assumed that the dosage of potassium chloride to be injected according to the New April 30, 2007 Protocol will result in death. However, as Dr.
4The New April 30, 2007 Protocol’s expression of the potassium chloride dosage is not consistent with scientific or pharmacological principles. See Affidavit of Dr. James Ramsey, Exhibit 18, p. 2.
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Ramsey has concluded, the amount and concentration of potassium delivered “cannot result in the minimum potassium concentration of 16.4 mEq/L being achieved that is required to arrest the electromechanical function of the heart.” See Affidavit of Dr. James Ramsey, Exhibit __, pp. 89.
175. In support of Dr. Ramsey’s conclusion, the resultant potassium concentrations post-mortem for Robert Glen Coe, who was killed under the prior Tennessee lethal injection protocol which utilized a similar dosage of potassium chloride, “indicates an extracellular potassium concentration of 9 mEq/L, far short of the required minimum concentration of 16.4 mEq/L to cause electromechanical arrest of the heart.” Id. at p. 9.
176. As a result, where the potassium chloride is not sufficient in either the manner of delivery or dosage to cause cardiac arrest, it is clear that under the New April 30, 2007 Protocol an inmate will die an excruciating painful and horrifying death by asphyxiation because of the paralysis caused by pancuronium bromide, while suffering the severely painful effects of the potassium chloride. Thus, the Defendants’ improper and unscientific use of potassium chloride in their attempts to kill Mr. Workman violates the Eighth Amendment. Mr. Workman has shown entitlement to relief on the merits.
177. The Risk Created By The New April 30, 2007 Protocol Has Been Realized In Executions In Numerous Other States.
178. While the New April 30, 2007 Protocol has obviously not been used in Tennessee since it was promulgated just three days ago, the New April 30, 2007 Protocol is essentially identical to the lethal injection protocols used in other states and jurisdictions, the use of which
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has resulted in numerous botched executions. 179. As a result, there is ample evidence that the New April 30, 2007 Protocol will
cause an inmate to experience unnecessary pain during his or her execution. Both execution records and witnesses’ accounts of these executions provide evidence that is consistent with consciousness following the administration of the sodium thiopental and during the administration of the pancuronium bromide and potassium chloride.
a. Florida. Just four months ago in Florida, on December 13, 2006, using a protocol essentially identical to Tennessee’s New April 30, 2007 Protocol, Mr. Angel Diaz did not get an effective amount of sodium thiopental because the IV lines were improperly seated in his veins with through and through punctures. As a result, none of the materials injected went to the right place. Instead, the drugs entered his bloodstream first through his flesh and muscle tissue. This process caused foot-long chemical burns on both arms from the sodium thiopental. During the execution, observers reported that Mr. Diaz moved and tried to mouth words. It took 34 minutes and 14 syringes of chemicals for Mr. Diaz to die, during which he was clearly in pain, struggling for breath and grimacing. See Chris Tisch, Executed Man Takes 34 Minutes To Die, www.Tampabay.com, December 13, 2006; Chris Tisch, Second Dose Needed To Kill Inmate, www.Tampabay.com, December 14, 2006; Florida Commission Report, pp.8-9
Following the Diaz execution, Governor Bush ordered that all executions be stayed while a committee undertook a review of the Diaz execution and of lethal injection protocols in Florida in general. Executions remain stayed in Florida under that order. See Florida Commission Report, Exhibit 21, p. 2. Tennessee’s New April 30, 2007 Protocol does not differ in any material respect from that use in the botched Diaz execution.
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b. California.5 Witness accounts of the 2002 execution of Stephen Wayne Anderson in California suggest that Mr. Anderson was not properly anesthetized when he died. The execution took over 30 minutes, and during that time Mr. Anderson’s chest and stomach “heaved more than 30 times.” See Declaration of Margo Rocconi, Exhibit 22, ¶ 6. According to Dr. Mark Heath, the typical reaction to sodium thiopental is yawning, drawing one or two deep breaths, or visibly exhaling so that the cheeks puff out. See Declaration of Dr. Mark Heath (California), Exhibit 23, ¶ 45. Irregular heaving of the chest is not consistent with the depression of the central nervous system caused by sodium thiopental. Id. Rather, chest heaving is indicative of labored respiratory activity, which in turn strongly suggests that Mr. Anderson was conscious, and indeed may have been laboring against the paralyzing effect of the pancuronium bromide. Id.
The execution log of Manuel Babbit’s 1999 execution also indicates that something went wrong during the process. A minute after the pancuronium bromide was administered, Mr. Babbit had shallow respirations and brief spasms in his upper abdomen – again suggesting an attempt to fight against the effects of the pancuronium bromide. See id.at ¶ 47; Execution Log of Manuel Babbit, Exhibit 24. In addition, Mr. Babbit’s heart rate remained constant until the potassium chloride was administered; had the full five grams of sodium thiopental reached Babbit, his heart rate would have changed significantly. See Declaration of Dr. Mark Heath (California), Exhibit 23, ¶ 47.
5The United States District Court for the Northern District of California has stayed executions in California. See Morales v. Hickman, No. 06-00219 (N.D.Cal.). California is purportedly releasing new execution protocols on May 15, 2007.
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The execution logs of William Bonin’s 1996 execution also reflect irregularities that may have caused Bonin to die in excruciating pain. Mr. Bonin was given a second dose of pancuronium bromide for reasons that remain unclear, even though the initial dose would paralyze an inmate for several hours. See Execution Log of William Bonin, Exhibit 25; Declaration of Dr. Mark Heath (California), Exhibit 23, ¶ 46. The redundant dose raises questions about whether Bonin received the initial doses of sodium pentothal and pancuronium bromide; whether the injection team believed that he was still conscious; and, more broadly, whether such an irregularity is indicative of the lack of training or judgment of injection personnel. Id.
Tennessee’s New April 30, 2007 Protocol does not differ in any material respect from that used in the California executions, including 5 grams of thiopental.
c. North Carolina.6 In Brown v. Beck, No. 06-3018, the District Court of the Eastern District of North Carolina, Western Division, had before it toxicology data following four executions in North Carolina showing low post-mortem levels of sodium thiopental. North Carolina’s protocol calls for a 3 gram dosage of the drug, to be followed by pancuronium bromide and potassium chloride. The toxicology data contradicted the opinion of the State’s experts as to the expected concentration that would be present in a man of average size after
6Executions in North Carolina have also been stayed by North Carolina state courts until physicians are permitted to participate in executions by lethal injection. See Robinson and Thomas v. Beck, No. 07-CVS-001109 (Wake County, NC)(Ordering that no executions will proceed in North Carolina until physicians agree to participate or a protocol is developed that is satisfactory and does not require doctor participation); North Carolina DOC v. North Carolina Medical Board, 07-CVS003574 (Wake County, NC) (DOC suing medical board for position statement that “physician participation in capital punishment is a departure from the ethics of the medical profession”and “which adopt[ed] and endorse[d] the provisions of the American Medical Association Code of Medical Ethics Opinion No. 2.06.”).
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having been given a dose of 3000 mg of sodium thiopental. See Brown v. Beck, 2006 U.S. Dist. LEXIS 60084 (E.D.N.C. April 7, 2006)(denying preliminary injunction, but conditioning future executions on presence of an anesthesiologist), Exhibit 26.
Also in Brown, the District Court had before it affidavits from attorneys present at recent executions who had witnessed the condemned inmates writhing, convulsing, and gagging when executed. Again, such witness accounts were inconsistent with a sufficient dose of sodium thiopental having been successfully delivered to the brain such that the condemned inmate would not feel pain. For instance:
During the lethal injection of Willie Fisher, “Mr. Fisher appeared to lose consciousness around 9:00 p.m. but subsequently began convulsing . . . he looked as though he was trying to catch his breath but could not and his eyes were open as his chest heaved repeatedly.” He was not pronounced dead until 9:21 p.m. See Brown, supra at *17.
During the lethal injection of Timmy Keel, Mr. Keel’s body was “twitching and moving about for approximately ten minutes” after the injection of the chemical cocktail. Id.
During the lethal injection of John Daniels, Mr. Daniels convulsed violently after the administration of the chemical cocktail. “He sat up and gagged.” Witnesses “could hear him through the glass.” “A short time later, [Mr. Daniels] sat up and gagged and choked again, and struggled with his arms under the sheet. He appeared to [witnesses] to be in pain. He finally lay back down and was still.” Id.
During the lethal injection of Eddie Ernest Hartman, Mr. Hartman appeared to suffer for at least five minutes after the lethal injection. “Eddie’s throat began thrusting outward and collapsing inward. His neck pulsed, protruded, and shook repeatedly. Eddie’s chest at first
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pulsated frequently, then intermittently, and at least twice I saw Eddie’s chest heave violently . . . Throughout the execution, Eddie’s eyes were partly open while his body relentlessly convulsed and contorted.” See Brown, supra at *16.
As the District Court there found, “evidence of the problems associated with these executions while, perhaps, not clearly indicative of the protocol, does raise some concerns about the effect of North Carolina’s protocol.” See Brown, supra at *18 (concluding “it would be inappropriate to allow Defendants to proceed with Mr. Brown’s execution under the current protocol considering the substantial questions raised”).
d. Ohio.7 During the May 2006 lethal injection of Joseph Lewis Clark, execution team members took over twenty minutes to insert one IV catheter into Mr. Clark’s arm. According to protocol two catheters were necessary, but the team proceeded with only one. After the single IV was inserted and the chemicals began to flow, Mr. Clark remained breathing, legs moving, arms strapped down. After minutes, he sat up several times and told executioners, “It’s not working, it’s not working.” Minutes later, Mr. Clark raised up again and said, “can’t you just give me something by mouth to end this?” At that point, the team closed the curtain, and witnesses heard groans and moans from Mr. Clark as if he was in agony. Witnesses reported that the cries of pain lasted for about five or ten minutes and were followed by snores from Mr. Clark. See Adam Liptak, Trouble Finding Inmate’s Vein Slows Lethal Injection in Ohio, New York Times, May 3, 2006, Exhibit 27.
The botched execution of Mr. Clark demonstrates graphically and horrifically how an
7Plaintiffs involved in the lethal injection litigation in Ohio are currently litigating a statute of limitations issue in the Sixth Circuit Court of Appeals which has resulted in a stay of execution there for many Plaintiffs. See Cooey v. Strickland, No. 05-4057 (6th Cir. March 2, 2007).
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execution that appeared completely normal and routine at the outset can rapidly go horribly wrong. Ohio’s protocol calls for 2 grams of sodium thiopental, following by pancuronium bromide and potassium chloride. The federal District Court for the Southern District of Ohio found that “evidence raises grave concerns about whether a condemned inmate would be sufficiently anesthetized under Ohio’s lethal injection protocol prior to and while being executed.” See Cooey v. Taft, 430 F.Supp. 2d 702, 707 (S.D. Ohio April 28, 2006)(granting preliminary injunction), Exhibit 28.
e. Arkansas.8 The Arkansas lethal injection protocol calls for a 2 gram dose of thiopental, followed by pancuronium bromide and potassium chloride. Using this protocol, the Department of Corrections there has presided over several executions where “inmates remained conscious and suffered pain during their executions.” See Nooner v. Norris, No. 0600110 (E.D.Ark.), June 26, 2006 Order (granting a preliminary injunction), p. 4, Exhibit 29.
Ronald Gene Simmons was executed in Arkansas by lethal injection on June 25, 1990. The administration of the lethal chemicals began at 9:02 p.m. Between 9:02 and 9:04 p.m., according to an eyewitness, Mr. Simmons appeared to nod off into unconsciousness. However, “at 9:05 p.m. he called out ‘Oh! Oh!'and began to cough sporadically as though he might be having difficulty breathing. During the next two minutes, he coughed slightly, approximately 20 times, each cough heaving his stomach slightly and causing the gurney to shake a little.” See Bill Simmons, Stoic Murderer Meets His Fate By Quiet Means, Arkansas Democrat Gazette, June 26, 1990 at 9A, Exhibit 30. Mr. Simmons became still at 9:07 p.m. after which his face and arm
8The United States District Court for the Eastern District of Arkansas, stayed executions to allow further investigation into the constitutionality of the lethal injection protocol. See Nooner, et al., v. Norris, No. 06-00110 (E.D.Ark.).
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turned first blue and then purple. An ADC employee twice appeared to adjust the IV tube in Mr. Simmons’ arm, and not until 9:19 p.m. was Mr. Simmons pronounced dead by the coroner. Id. As Dr. Mark Heath has indicated, the chest heaving is indicative of labored respiratory activity, which in turn strongly suggests that Mr. Simmons was conscious, and indeed may have been laboring against the paralyzing effect of the pancuronium bromide. See Affidavit of Dr. Mark Heath (Arkansas), Exhibit 31, ¶ 44. Two years later, the execution of Ricky Ray Rector in Arkansas in January of 1992 took 1 hour and 9 minutes. Mr. Rector’s hands and arms were punctured no less than 10 separate times searching for a suitable vein. Ultimately, someone on the execution team did a cut-down into his arm. Witnesses could hear his moans as they looked for a vein. See Sonja Clinesmith, Moans Pierced Silence During Wait, Arkansas Democrat Gazette, January 26, 1992, at 1B, Exhibit 32; Ron Fournier, 13 Outsiders View Death Of Rector, Witnesses Listen, Wait Beyond Curtain, Arkansas Democrat Gazette, January 26, 1992, at 4B, Exhibit 33. Rector talked after 2 minutes and then after 5 minutes his lips were still moving rapidly - as if he was trying to draw shallow breaths. He was not pronounced dead until 10:09 p.m. See Joe Farmer, Rector, 40, Executed for Officer’s Slaying, Arkansas Democrat Gazette, January 25, 1992, at 9A, Exhibit 34; Fournier, Exhibit 33.
On May 7, 1992, Steven Douglas Hill was executed in Arkansas. His execution began at 9:02 p.m. His eyes closed one minute later, but shortly afterwards he had what witnesses described as “a ‘seizure’ arching his back with his cheeks popping.” See Andy Gotlieb and Linda Satter, Hill Dies By Injection for ‘84 Police Killing, Arkansas Democrat Gazette, May 8, 1992, at 17A, Exhibit 35. He was visibily gasping for air, and even though he was strapped down to the gurney his chest was heaving against the wide belt that covered his chest. The
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seizure ended at 9:04 p.m. and Mr. Hill was pronounced dead at 9:10 p.m. 180. The accounts of these numerous botched executions across the United States are
“extremely troubling,” because they indicate “that there were problems associated with the administration of the chemicals that may have resulted in the prisoners being conscious during portions of their executions.” Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005).
181. “This Court would be remiss if it did not take note of the evidence [from other states] . . . . [that] raises grave concerns about whether a condemned inmate would be sufficiently anesthetized under [Tennessee’s April 30, 2007 Protocol] prior to and while being executed.” See Cooey, 430 F.Supp. 2d at 707, Exhibit 28.
182. The Deficiencies In The New April 30, 2007 Protocol Are The Result of Defendants’ Deliberate Indifference To The Known Risks Inherent In Such A Protocol.
183. Because the Governor and the TDOC is aware of the risks inherent in Tennessee’s New April 30, 2007 Protocol based on prior lethal injection litigation in this state and ongoing lethal injection litigation in at least fourteen (14) other states – all of which have protocols that are almost identical to Tennessee’s New April 30, 2007 Protocol, the New April 30, 2007 Protocol was developed and promulgated and will be used with deliberate indifference to the excruciatingly painful and horrifying death that will result from the use of sodium thiopental, pancuronium bromide, and potassium chloride by untrained, uneducated and unqualified personnel.
184. Defendants are certainly aware of executions in other states where correctional employees have encountered significant problems during lethal injection procedures and orders from state and federal courts and from governors staying executions by lethal injection, including
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in Arkansas, California, Delaware, Florida, Maryland, Missouri, New Jersey, North Carolina, Ohio, South Dakota, and any federal executions. Defendants are also certainly aware that the lethal injection protocols in each of these states is virtually identical to the New April 30, 2007 Protocol that Defendants intend to use to execute Philip Workman.
185. Arkansas. On June 26, 2006, the United States District Court for the Eastern District of Arkansas, granted a stay of execution for Don Davis and a preliminary injunction to allow further investigation into the constitutionality of the lethal injection protocol. See Nooner, et al., v. Norris, No. 06-00110 (E.D.Ark.)(June 26, 2006 Order granting a preliminary injunction), Exhibit 29. The lethal injection protocol used in Arkansas is almost identical to the new protocol in Tennessee, using the same three drug cocktail and failing to require the participation of trained medical personnel. In its Order granting a preliminary injunction, the Nooner court found that “Davis has shown that he is personally under a threat of irreparable harm. If Davis remains or becomes conscious during the execution, he will suffer intense pain that will never be rectified. The Court further finds the balance of potential harms favors Davis. If a stay is granted and Davis’s allegations prove true, he and others will be spared subjection to an unconstitutional execution procedure, and the State’s interest in enforcing death penalties in compliance with constitutional standards will be served.” Id. at p. 5. The Court went on to note that “Davis has raised serious questions that call for deliberate investigation.” Id.
186. California. On February 14, 2006, the United States District Court for the Northern District of California in the case of Morales v. Hickman, No. 06-00219 (N.D.Cal.), denied Michael Morales a preliminary injunction conditioned on certain requirements for the manner in which his execution would be carried out. See Morales v. Hickman, 415 F.Supp.2d
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1037 (N.D.Cal. 2006), aff’d, 438 F.3d 926 (9th Cir. 2006), cert. denied 126 S.Ct. 1314 (2006), Exhibit 13. The protocol used in California was almost identical to the New April 30, 2007 Protocol, using the same three drug cocktail and failing to require the participation of trained medical personnel. The District Court’s conditions dramatically changed California’s protocol, including requiring that only sodium thiopental be used in the lethal injection or that someone with training in the field of anesthesiology had to assist in determining whether the inmate was properly sedated before the administration of the pancuronium bromide or the potassium chloride. Id. at 1047-1048. Defendants agreed to comply with the second alternative and enlisted two anesthesiologists, who promptly quit when they realized they were being asked to assist in an execution. See Morales v. Tilton, 465 F. Supp. 2d 972, 976 (N.D.Cal. Dec. 15, 2006), Exhibit 36. As a result, all executions in California are currently stayed while the Governor and correctional officials develop a new lethal injection protocol. California has indicated that it will issue a new protocol on May 15, 2007.
187. Delaware. The United States District Court for the District of Delaware on May 9, 2006, granted a preliminary injunction which has stayed all executions since that time. See Jackson v. Taylor, et al., 2006 U.S. Dist. LEXIS 27658 (D. Del. May 9, 2006), Exhibit 37. While the stay was for the purpose of awaiting the United States Supreme Court decision in Hill v. McDonough, supra, the parties in Delaware are now engaging in discovery for the purpose of a future evidentiary hearing on the issue of the constitutionality of the Delaware lethal injection protocol. The three-drug cocktail used in the Delaware protocol is the same as that used in Tennessee, although the specifics of the Delaware protocol are secretive. On February 23, 2007, the Jackson court certified a state-wide class consisting of all current and future prisoners who
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are and will be sentenced to death in Delaware. See Jackson v. Danberg, 2007 U.S. Dist. LEXIS 12376 (D. Del. 2007), Exhibit 38.
188. Florida. In Florida, the December 2006 execution of Mr. Angel Diaz exposed the Florida lethal injection protocol as a deep failure. The autopsy of Mr. Diaz showed that the veins in each of his arms had through and through punctures revealing that the IV lines were improperly seated in his veins. As a result, Mr. Diaz did not get an effective amount of the drug in a vein in either arm – none of the materials injected went to the right place. Instead, the drugs entered his bloodstream first through his flesh and muscle tissue. This process caused foot-long chemical burns on both arms from the sodium thiopental. During execution, observers reported that Mr. Diaz moved and tried to mouth words. It took 34 minutes and 14 syringes of chemicals for Mr. Diaz to die, during which he was clearly in pain, struggling for breath and grimacing.
Following the Diaz execution, Governor Bush ordered that all executions be stayed while a committee undertook a review of the Diaz execution and of lethal injection protocols in Florida in general.
After three months, eight hearings, consultations with multiple medical experts and others, the Florida Commission on Administration of Lethal Injection published a Report that contained findings and recommendations for extensive modifications of the lethal injection protocol in Florida. See Florida Report, Exhibit 21. The prior protocol used in Florida for the execution of Angel Diaz used the same three drug cocktail and failed to require the participation of trained medical personnel just like the new protocol in Tennessee. Lethal injection executions
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in Florida remain stayed by order of the Governor.9 189. Maryland. On December 16, 2006, the Maryland Court of Appeals ruled in Evans
v. State, 396 Md. 256 (Md. App. Ct. 2006), that the state had not complied with the administrative procedures act in adopting its lethal injection procedures. All executions in Maryland are on hold until those procedures for reviewing such changes to the law have been followed. Maryland’s prior protocol used the same three drug cocktail and did not provide for the assistance of medical personnel just like the new protocol in Tennessee.
190. Missouri. The United States District Court for the Western District of Missouri has stayed executions in Missouri finding its lethal injection protocol to be unconstitutional, and requiring corrections officials to revise their lethal injection protocol, which was identical to the New April 30, 2007 Protocol – using the same three drug cocktail and also failing to require the assistance of trained medical personnel. See Taylor v. Crawford, 2006 U.S. Dist. LEXIS 74896 (W.D.Mo. October 16, 2006)(finding Missouri’s revised protocol inadequate and denying the motion to lift the preliminary injunction), Exhibit 39; Taylor v. Crawford, 2006 U.S. Dist. LEXIS 51008 (W.D.Mo. July 25, 2006)(same), Exhibit 40. In the District Court’s July 25, 2006 Order, the Court, having reviewed one of the several revised protocols submitted by Missouri corrections officials said, “Missouri’s revised protocol is an improvement over the current procedure. However, there continue to be inadequacies with the personnel required to monitor and oversee the use of the anesthetic thiopental. While the use of a board certified anesthesiologist may not be possible, the alternative proposed by the State falls short of ensuring
9Although the Commissioner acknowledged reviewing the Florida Report, the protocols adopted by the Commissioner fail to address any of the concerns raised by the Florida Commission.
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the protection required. If the proposed three drug protocol is to be used, it is crucial that someone with the appropriate training and experience in monitoring anesthetic depth must be present to ensure that Missouri’s executions of its condemned inmates are carried out humanely.”10 See Taylor, 2006 U.S. Dist. LEXIS 51008, *2-3 (emphasis added), Exhibit 40. Executions in Missouri remain stayed.
191. New Jersey. On February 20, 2004, in In The Matter of Readoption With Amendments of Death Penalty Regulations, 842 A.2d 207 (New Jersey 2004), an appellate court in New Jersey stayed all executions until the state could justify its lethal injection procedures. New Jersey used both sodium thiopental and pancuronium bromide in its lethal injection procedures, just as Tennessee’s New April 30, 2007 Protocol does.
192. North Carolina. Executions in North Carolina have also been stayed by North Carolina state courts until physicians are permitted to participate in executions by lethal injection. See Robinson and Thomas v. Beck, No. 07-CVS-001109 (Wake County, NC)(Ordering that no executions will proceed in North Carolina until physicians agree to participate or a protocol is developed that is satisfactory and does not require doctor participation), Exhibit 41;11 State v. Holman, No. 97-49226 (March 6, 2007)(order cancelling execution date), Exhibit 42. The lethal injection protocol in North Carolina used the same three drug cocktail and did not require the use of trained medical personnel just like the new protocol
10Tennessee’s New April 30, 2007 Protocol makes no provision for the monitoring of anesthetic depth.
11The North Carolina Department of Corrections is currently suing the North Carolina Medical Board for its position statement that “physician participation in capital punishment is a departure from the ethics of the medical profession”and “which adopt[ed] and endorse[d] the provisions of the American Medical Association Code of Medical Ethics Opinion No. 2.06” in North Carolina DOC v. North Carolina Medical Board, 07-CVS-003574 (Wake County, NC).
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in Tennessee. 193. Ohio. In 2006, the United States District Court of the Southern District of Ohio
found that there was “mounting evidence calling Ohio’s lethal injection protocol, and the same or similar protocols employed by other states, increasingly into question.” See Cooey, 430 F.Supp. 2d at 706 (granting preliminary injunction), Exhibit 28. Ohio’s lethal injection protocol uses the same three drug cocktail and does not provide for the assistance of medical personnel just like the new protocol in Tennessee. Plaintiffs involved in the lethal injection litigation in Ohio are currently litigating a statute of limitations issue in the Sixth Circuit Court of Appeals. See Cooey v. Strickland, No. 05-4057 (6th Cir. March 2, 2007).
194. South Dakota. The Governor of South Dakota stayed the execution of Elijah Page because of concerns about the state’s lethal injection process. South Dakota’s lethal injection protocol uses the same three drug cocktail and does not provide for the assistance of medical personnel just like the new protocol in Tennessee. Executions appear to be on hold until July 1, 2007.
195. Federal District Courts. The Attorney General of the United States has agreed to a preliminary injunction for federal capital plaintiffs challenging the federal lethal injection protocols as unconstitutional. See Roane v. Gonzales, No. 05-2337 (D.C. Dist.), February 16, 2007 Order and Unopposed Motion for Preliminary Injunction, Exhibit 10.12 In federal executions, the method is determined by the state in which the sentencing took place. Apparently, the federal protocol calls for the same three-drug combination that is called for in the
12The federal facility in Terre Haute is the facility where the Commissioner and his review committee performed their site visit.
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New April 30, 2007 Protocol. 196. The New April 30, 2007 Protocol is virtually identical to the protocols which
these states are currently forbidden to use, and violates constitutional and statutory provisions enacted to prevent cruelty, pain, and torture and to provide all citizens of the United States with due process and equal protection of law.
197. Despite knowledge of the ongoing lethal injection litigation in multiple states and jurisdictions, Defendants failed to consult correctional officials, state officials, or medical experts with experience in lethal injection and lethal injection litigation from any of the listed states or jurisdictions, with the exception of the Federal Prison in Terre Haute, as a part of its review and development of the New April 30, 2007 Protocol. See Tennessee Report on Administration of Death Sentences, p.5.
198. Despite knowledge of the ongoing lethal injection litigation in multiple states and jurisdiction, Defendants failed to request documents and information from any correctional officials, state officials, or medical experts with experience in lethal injection and lethal injection litigation from any of the listed states or jurisdictions, with the exception of the Terre Haute facility,13 as part of its review and development of the New April 30, 2007 Protocol. See Id.
199. Defendants’ analysis was one-sided, unscientific and failed to take into account the serious known and demonstrated risks of the use of the chemicals and procedures selected for the New April 30, 2007 Protocol.
200. Defendants’ failure to properly consult, review, and research in promulgating its
13BOP refuses to disclose their protocols to any party and apparently did not provide their documents to the Commissioner, but, did allow a site visit. The Commissioner does not acknowledge that the BOP is currently enjoined from using their lethal injection protocols.
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New April 30, 2007 Protocol, despite the ready availability of experienced state officials and medical experts, demonstrates a deliberate indifference to the excruciatingly painful and horrifying death that will result from the use of these three drugs by untrained personnel under the new execution protocol.
201. Defendant’s analysis of any alternatives for lethal injection methods further demonstrates their deliberate indifference. Defendant’s defend their use of the three drug cocktail by simply saying that 29 other jurisdictions use it. See Tennessee Report on Administration of Death Sentences, Exhibit 7, p. 2. This, “everybody else does it” defense fails to acknowledge the number of jurisdictions who are now under judicial and/or executive order not to do it because of concerns that the protocol is unconstitutional.
202. Further, Defendant’s discussion of the other methods makes clear the Commissioner and the review committee were concerned with making the lethal injection experience more palatable and acceptable to the witnesses with utter disregard for the risk of pain and suffering to the condemned. See Id. at pp. 6-8.
203. The Commissioner told the Governor that the review committee rejected a protocol that eliminates the use of pancuronium bromide because “the administration of potassium chloride without a preceding dose of pancuronium bromide would typically result in involuntary movement which might be misinterpreted as a seizure or an indication of consciousness.” Id. at p.8. Nowhere does the report recognize or express a concern that movement might actually indicate consciousness, which would mean that the sodium thiopental did not work and that the inmate is actually feeling the searing pain of the potassium chloride.
204. In discussing the use of a single drug protocol, the Commissioner acknowledges
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that a single drug protocol would be simpler, would decrease the risk of error, and would eliminate the drugs which cause pain. See Tennessee Report on Administration of Death Sentences, Exhibit 7, p. 8. The Commissioner then rejects this protocol because, he (falsely) claims, the two and three drug protocols will produce a faster death, that the effect and required dosage of the sodium thiopental is less predictable, and nobody else does it that way. Id.
205. Thus, the Commissioner and the review team have admitted that they are fully aware of the unpredictability of sodium thiopental and the fact that pancuronium bromide will mask the failure of the sodium thiopental to work properly. They have further admitted that they could eliminate the risk of pain to the condemned completely, but refuse not to for the sole purposes of making the killing go faster and making it more palatable for the witnesses. This evidences the complete and utter disregard on the part of all of the Defendants to the great risk, and likelihood, of pain and suffering that will be caused by the use of the New April 30, 2007 Protocol by poorly trained, misinformed, and unqualified members of the execution team, while the only medical doctor on the premises waits in the garage.
206. The opinions of the United States District Judge Gregory L. Frost in the classaction case of Cooey v. Taft are instructive in analyzing Mr. Workman’s likelihood of success on the merits of his deliberate indifference claim.14 In granting a preliminary injunction in that case, Judge Frost took “judicial notice that multiple states have recently placed executions on hold due
14The District Court’s Order in Cooey was later vacated by a panel of the Sixth Circuit on statute of limitations grounds not relevant to this litigation regarding the newly promulgated protocol. See Cooey v. Strickland, 479 F.3d 412 (6th Cir. March 2, 2007). Nonetheless, the Cooey panel decision is being considered en banc and one Ohio inmate has received a stay of execution pending the outcome of the en banc court’s decision. See Cooey v. Strickland, 474 F.3d 268 (6th Cir. Jan. 16, 2006).
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to serious concerns over their lethal injection protocols.” Cooey v. Taft, 2006 U.S. Dist. LEXIS
92521, n.5 (S.D. Ohio Dec. 21, 2006), Exhibit 43. This Court should do the same.
207. In conducting his analysis of the factors that weighed in favor of granting a
preliminary injunction, Judge Frost wrote:
Given the evidence that Jeffrey Hill and Jerome Henderson first produced, as well as anecdotal evidence that Spirko included demonstrating problems that occurred during Ohio’s execution of inmate Joseph Clark on May 2, 2006, Spirko has demonstrated a stronger likelihood of success on the merits than some of the plaintiffs that preceded him, in view of the growing body of evidence calling Ohio’s lethal injection protocol increasingly into question. This Court stated unequivocally in its order granting Hill’s request for a preliminary injunction that it can not and will not turn a blind eye to the evidence presented in the cases of Brown v. Beck in North Carolina and Morales v. Hickman in California appearing to contradict the opinion of Dr. Mark Dershwitz15 that virtually all persons given the dose of sodium thiopental prescribed under Ohio’s lethal injection protocol would be rendered unconscious and would stop breathing within one minute. The evidence that has begun to emerge calling this and other conclusions of Dr. Dershwitz into question also persuades this Court that there is an unacceptable and unnecessary risk that Spirko will be irreparably harmed absent the injunction, i.e that Spirko could suffer unnecessary and excruciating pain while being executed in violation of his Eighth Amendment right not to be subjected to cruel and unusual punishment.
Cooey v. Taft, 2006 U.S. Dist. LEXIS 85234, *20-21 (S.D. Ohio Nov. 22, 2006), Exhibit 44.
208. In addressing the Ohio Warden’s complaint about “the Court’s reliance on
evidence produced in other cases around the country and anecdotal evidence regarding problems
that have occurred during recent executions in Ohio and other states,” Judge Frost observed that
15Defendants consulted with and relied on information provided to them by Dr. Mark Dershwitz in creating the New April 30, 2007 Protocol. See Email from Julian Davis to Dr. Mark Dershwitz, Exhibit 9.
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while the evidence wasn’t “ideal, it is nonetheless persuasive regarding the first factor in McPherson and is arguably the best evidence that the plaintiffs could produce, given the fact that this case was stayed before any discovery of other fact-finding could commence.” Cooey, 2006 U.S. Dist. LEXIS 92521, *14, Exhibit 43.
209. The body of evidence which demonstrates the unreasonable and unacceptable risk of pain and suffering under Tennessee’s New April 30, 2007 lethal injection protocol continues to grow.
210. Just last week, a scientific study of executions in California and North Carolina revealed botched executions in those states. See Leonardis Koniaris et al, Lethal Injection For Execution: Chemical Asphyxiation?, PLOS Medicine, Vol. 4, Issue 4, April 2007, Exhibit 45.
211. Two days ago, Professor Deborah Denno published a working draft of her most recent research about the state of lethal injections in this country and the risks involved. See Deborah Denno, The Lethal Injection Quandary: How Medicine Has Dismantled The Death Penalty, Fordham University School of Law, May 2, 2007, Exhibit 46. VII. CLAIMS FOR RELIEF
A. Violation of Fourteenth Amendment: Due Process And Equal Protection of Law (Sodium Pentothal)
212. Plaintiff incorporates the preceding paragraphs in their entirety by reference. 213. Plaintiff has fundamental life and liberty interests protected by the Fourteenth Amendment to the United States Constitution. 214. Plaintiff’s right to equal protection under law is protected by the Fourteenth Amendment to the United States Constitution. Plaintiff has right to a lethal injection procedure
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which is as humane, or even more humane, as the procedure for euthanizing animals in this country and in Tennessee.
215. The use of sodium pentothal violates Plaintiff’s right to due process and equal protection of the law under the Fourteenth Amendment.
216. The use of sodium pentothal, as opposed to a longer-lasting anesthetic, is arbitrary, unreasonable, irrational, and serves no legitimate or compelling state interest. As administered under Tennessee’s New April 30, 2007 Protocol, and especially as administered by untrained personnel, the use of sodium pentothal shocks the conscience and is inhumane.
217. Inducing unconsciousness by correctly administering sodium pentothal is indispensable to preventing the wanton infliction of pain.
218. Use of sodium pentothal as administered under Tennessee’s New April 30, 2007 Protocol does not cause sufficient anesthesia for the duration of the lethal injection process.
219. The absence of trained personnel to administer sodium pentothal and insure a prisoner is properly anesthetized before the other chemicals are introduced greatly increases the risk that a prisoner would not receive the necessary amount of anesthetic prior to being paralyzed by the pancuronium bromide and internally burned by the potassium chloride.
220. Sodium pentothal, as administered under the New April 30, 2007 Protocol, does not adequately anesthetize the prisoner from the pain and horror of asphyxiation or suffocation caused by the pancuronium bromide.
221. Sodium pentothal, as administered under the New April 30, 2007 Protocol, does not adequately anesthetize the prisoner from the extreme pain caused by potassium chloride.
222. The AVMA uses a longer-lasting barbiturate when euthanizing animals. It also
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requires personnel be trained and knowledgeable in anesthetic techniques, and competent in assessing anesthetic depth appropriate for the subsequent administration of potassium chloride. Tennessee’s New April 30, 2007 Protocol contains no comparable requirements for the personnel who use the same drug in executing prisoners.
B. Violation Of Eighth And Fourteenth Amendments: Cruel and Unusual Punishment (Sodium Pentothal)
223. Plaintiff incorporates preceding paragraphs in their entirety by reference. 224. The use of Sodium Pentothal, as administered under Tennessee’s New April 30, 2007 Protocol, violates Plaintiff’s right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments. 225. Specifically, Plaintiff has a right to be free from arbitrary methods of punishment; from suffering pain beyond that inherent in the course of death; from suffering extreme horror and pain; and from a prolonged death. 226. Although it is possible to conduct executions in a constitutionally compliant manner, the TDOC has chosen not to do so. The TDOC could choose to use different chemicals that pose a low risk of administration error yet do not cause extraordinarily grave consequences to a condemned inmate if not properly administered. Instead, it has knowingly and recklessly and deliberately chosen to use chemicals that pose a high risk of administration error, like sodium pentothal. Moreover, it has not taken precautions to ensure that the personnel who administer the lethal injection chemicals possess the training, experience, and expertise needed to administer those chemicals properly. C. Violation Of Fourteenth Amendment: Due Process Of Law (Pancuronium
Bromide)
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227. Plaintiff incorporates preceding paragraphs in their entirety by reference. 228. Plaintiff has a fundamental life interest protected by the Fourteenth Amendment to the United States Constitution. 229. The use of pancuronium bromide is arbitrary, unreasonable, and serves no legitimate or compelling state interest. The use of pancuronium bromide shocks the conscience and is inhumane. 230. The use of pancuronium bromide violates Plaintiff’s right to due process of law under the Fourteenth Amendment. 231. It is well-settled under the due process clause of the Fourteenth Amendment that a state cannot act in a way which fails to serve a legitimate state interest. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249 (1985). Likewise, when fundamental interests are involved (such as life) the state must act in a way that is necessary to promote a compelling state interest. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000). 232. Without question, there is no legitimate interest in the use of pancuronium bromide upon Plaintiff or any other human being. As Chancellor Ellen Hobbs Lyle has held: [T]he use of Pavulon is . . . unnecessary. . . [T]he State [has] failed to demonstrate any reason for its use. The record is devoid of proof that the Pavulon is needed. Thus, the Court concludes that . . . the State’s use of Pavulon is . . . in legal terms ‘arbitrary.’ Abdur’Rahman v. Sundquist, No. 02-2236-III, In The Chancery Court For The State Of Tennessee, Twentieth Judicial District, p. 13 (June 2, 2003). 233. Further, use of pancuronium bromide violates substantive due process for the separate reason that its use shocks the conscience. See Rochin v. California, 342 U.S. 165
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(1952). Without question, under Tennessee’s “Nonlivestock Animal Humane Death Act,” pancuronium bromide cannot be used to euthanize a non-livestock animal in Tennessee. Tenn.Code Ann. §44-17-301 et seq, including §44-17-303(c)(any substance which “acts as a neuromuscular blocking agent . . . may not be used on any nonlivestock animal for the purpose of euthanasia.”). If pancuronium bromide can’t be used to kill a dog or a cat because it is not “humane,” it shocks the conscience to think that it can be used in an attempt to kill a human being.
234. The use of pancuronium bromide is arbitrary, unreasonable, irrational, and serve no legitimate or compelling state interest. Because Tennessee’s New April 30, 2007 Protocol calls for the potassium chloride to be administered in a lethal dose, the use of pancuronium bromide serve no purpose in the execution process. Pancuronium bromide unnecessary increases the risk that a conscious prisoner will be conscious and paralyzed, yet unable to inform personnel of his condition. The use of pancuronium bromide shocks the conscience and is inhumane.
D. Violation Of Eighth And Fourteenth Amendments: Cruel and Unusual Punishment (Pancuronium Bromide)
235. Plaintiff incorporates preceding paragraphs in their entirety by reference. 236. The use of pancuronium bromide is inhumane, violates the dignity of the human person, and is contrary to the evolving standards of decency. 237. The use of pancuronium bromide in the New April 30, 2007 Protocol violates Plaintiff’s right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments. Specifically, Plaintiff has a right to be free from arbitrary methods of punishment; from suffering pain beyond that inherent in the course of death; from suffering extreme horror
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and pain; and, from a prolonged death. 238. The Eighth and Fourteenth Amendments prohibit punishments which do not
comport with the evolving standards of decency that mark the progress of a maturing society. Trop v. Dulles, 356 U.S. 86 (1959).
239. In 2001, the State of Tennessee declared as inhumane – and illegal – the use of pancuronium bromide or any other neuromuscular blocking agent on nonlivestock animals. Tenn. Code Ann. §44-17-303(c); 44-17-303(j)(criminal sanctions for violation of Humane Death Act). A fortiori, the legislative judgment of Tennessee establishes the fundamental baseline concerning the evolving standards of decency applicable to human beings. Especially where the Tennessee Legislature passed the Nonlivestock Humane Death Act in 2001 – before Defendants’ established the New April 30, 2007 protocol – the very existence of the Act establishes an Eighth Amendment violation of the evolving standards of decency.
240. Further, where Tennessee has already determined that use of pancuronium bromide to kill animals is not “humane,” using such a substance to kill a human being is not humane either. It is likewise degrading to humanity itself to allow the Defendants to do what they would intend to do. It sends a message that the State can treat human being with the type of contempt and cruelty that is not befitting an animal.
250. Moreover, pancuronium bromide could not lawfully be used alone as the fatal agent. It would not result in a quick death; instead, it would ultimately cause someone to suffocate or asphyxiate to death. Causing death by suffocation or asphyxiation violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
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E. Violation Of Fourteenth Amendment: Equal Protection (Pancuronium Bromide)
251. Plaintiff incorporates preceding paragraphs in their entirety by reference. 252. The use of pancuronium bromide upon Plaintiff while its use is legally prohibited for use on animals because it is not “humane,” is inhumane, arbitrary, unreasonable, and serves no legitimate interest, nor is it narrowly tailored to serve a compelling state interest. The use of pancuronium bromide violates Plaintiff’s right to the equal protection of the laws under the Fourteenth Amendment. 253. By procuring and using pancuronium bromide upon Plaintiff, Defendants would invidiously discriminate against Plaintiff: Under Tenn. Code Ann. §44-17-303(h) & §39-14201(3), the State of Tennessee has protected the following animals against the use of pancuronium bromide: any “pet normally maintained in or near the household or households of its owner or owners, other domesticated animal, previously captured wildlife, an exotic animal, or any other pet, including but not limited to, pet rabbits, a pet chick, duck, or pot bellied pig that is not classified as "livestock" pursuant to this part.” Tenn.Code Ann.§44-17-201(3). There is no legitimate basis – let alone a compelling state reason – for Tennessee to provide dogs, cats, chicks, ducks, and pot-bellied pigs more protection from cruelty than it would Plaintiff, who is a human being who retains a fundamental right to life. This classification is arbitrary, unreasonable, and serves no legitimate interest, let alone a compelling state interest. Defendants’ procurement and use of pancuronium bromide is therefore unconstitutional. F. Violation Of Eighth, Ninth, and Fourteenth Amendments: Cruel And
Unusual Punishment 254. Plaintiff incorporates preceding paragraphs in their entirety by reference and by
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reference his Memorandum In Support Of TRO. 255. Defendants’ use of sodium thiopental, pancuronium bromide, and potassium
chloride as dictated by the New April 30, 2007 Protocol causes unreasonable and unnecessary pain and suffering and does not conform with evolving standards of decency and occurs with deliberate indifference and/or reckless disregard of the substantial or significant known risk of pain and suffering, given all the deficiencies identified in this complaint related to the selection, preparation, and manner of administration of such chemicals by persons who are inadequately trained and inexperienced and where there is not adequate monitoring of anesthetic depth and/or the proper administration of such chemicals, individually and cumulatively, and where the process suffers from the various deficiencies identified in the complaint and as yet unknown and/or disclosed to Plaintiff.
256. Defendants’ use of the protocol violates the dignity of the human person and Plaintiff’s right to be free from cruel and unusual punishment under the Eighth, Ninth, and Fourteenth Amendments. VIII. PRAYER FOR RELIEF
WHEREFORE, based on the foregoing complaint, incorporated herein by reference, this Court should do the following:
1. Enter an order granting a declaratory judgment to Plaintiff declaring unconstitutional the New April 30, 2007 Protocol for all the reasons stated in this complaint and Motion & Memorandum For TRO, because, inter alia, it utilizes inadequate anesthesia through the use of sodium thiopental, and grant an injunction against the use upon Plaintiff of the New April 30, 2007 Protocol.
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2. Enter an order granting a declaratory judgment to Plaintiff declaring unconstitutional the use of pancuronium bromide by Defendants under the circumstances, and prohibiting Defendants from using, seeking to obtain, ordering, writing a prescription, writing a physician’s order, prescribing, dispensing, or in any other manner transferring to Defendants Bell or any other Defendants involved in the execution process pancuronium bromide in any form whatsoever.
3. Enter an order granting a declaratory judgment to Plaintiff declaring unconstitutional the use of pancuronium bromide by Defendants under the circumstances, and enjoin Defendants from seeking to execute, or executing, Plaintiff using the above-described protocol which employs pancuronium bromide.
4. Enter an order granting a declaratory judgment to Plaintiff declaring unconstitutional the New April 30, 2007 Protocol and enjoining the administration of the lethal injection procedure by personnel who lack sufficient training, credentials, certification, experience, or proficiency to conduct the lethal injection procedure.
5. Enter an order granting a declaratory judgment to Plaintiff declaring unconstitutional the New April 30, 2007 Protocol, and grant an injunction against the use of the protocol upon Plaintiff.
6. Grant further relief that this Court finds necessary and just.
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Respectfully submitted, Paul R. Bottei Kelley J. Henry Gretchen L. Swift Office of the Federal Public Defender Middle District of Tennessee 810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047 FAX (615)736-5265 By: /s/ Kelley J. Henry
CERTIFICATE OF SERVICE I certify that a copy of this notice was served via electronic filing upon counsel for the Defendants, Mark Hudson, Asst. Attorney General, Office of the Attorney General, 425 Fifth Avenue North, Nashville, Tennessee 37243 this 4th day of May, 2007.
Kelley J. Henry Counsel for Philip Workman
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

PHILIP R. WORKMAN

)

)

v.

)

)

GOVERNOR PHIL BREDESEN, et al. )

NO. 3:07-0490 JUDGE CAMPBELL

ORDER

Pending before the Court is a Motion to Dismiss (Docket No. 15) filed by Defendants.

The Motion is moot because Plaintiff Philip R. Workman was executed on May 9, 2007.

In light of the execution of Philip Workman, this case is dismissed without prejudice as

moot. The Clerk is directed to close the file.

IT IS SO ORDERED.

__________________________________ TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE

Case 3:07-cv-00490 Document 17 Filed 05/13/2007 Page 1 of 1

 
 CM/ECF - DC V2.5 (October 2005) - Docket Report

Page 1 of 5

CASE-CLOSED, KNOWLES
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:07-cv-00490

Workman v. Bredesen et al Assigned to: Chief Judge Todd J. Campbell Cause: 42:1983 Prisoner Civil Rights

Date Filed: 05/04/2007 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Philip Workman

represented by Gretchen L. Swift Federal Public Defender's Office 810 Broadway Suite 200 Nashville, TN 37203 (615) 736-5047 Email: gretchen_swift@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelley J. Henry Federal Public Defender's Office 810 Broadway Suite 200 Nashville, TN 37203 (615) 736-5047 Email: kelley_henry@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul R. Bottei Federal Public Defender's Office 810 Broadway Suite 200 Nashville, TN 37203 (615) 736-5047 Email: paul_bottei@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Phil Bredesen in his official capacity as Governor of

represented by Mark Alexis Hudson Tennessee Attorney General's Office

https://ecf.tnmd.uscourts.gov/cgi-bin/DktRpt.pl?553619392936247-L_923_0-1

6/22/2007

CM/ECF - DC V2.5 (October 2005) - Docket Report

Page 2 of 5

the State of Tennessee
Defendant George Little in his official capacity as Tennessee's Commissioner of Correction
Defendant Ricky Bell in his official capacity as Warden, Riverbend Maximum Security Institution Defendant Gayle Ray in her official capacity as Assistant Commissioner of Corrections
Defendant Roland Colson in his official capacity as Assistant Commissioner of Corrections
Defendant Julian Davis in his official capacity as Executive Assistant to the Commissioner
Defendant Debbie Inglis in her official capacity as General Counsel to the Department of Corrections Defendant John Doe Physicians 1-100

P O Box 20207 Nashville, TN 37202 (615) 741-7401 Fax: (615) 532-2541 Email: mark.a.hudson@state.tn.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alexis Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alexis Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alexis Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alexis Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alexis Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alexis Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alexis Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant John Doe Pharmacists 1-100
Defendant John Doe Medical Personnel 1-100
Defendant John Doe Executioners 1-100
Defendant John Does 1-100
Interested Party Sixth Circuit Court of Appeals

represented by Mark Alexis Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alexis Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alexis Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alexis Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/04/2007 05/04/2007
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Docket Text

1 MOTION for Temporary Restraining Order by Philip Workman. (rm) (Entered: 05/04/2007)

2 MEMORANDUM in Support of 1 MOTION for Temporary Restraining Order filed by Philip Workman. (rm) Additional attachment(s) added on 5/4/2007 (rm, ). Additional attachment(s) added on 5/4/2007 (rm, ). (Entered: 05/04/2007)

3 APPLICATION to Proceed in forma pauperis by Philip Workman. (rm) (Entered: 05/04/2007)

4 ORDER: Pending before the Court are Plaintiff's Application to Proceed IFP and Motion for TRO. The Application to Proceed IFP is granted. The Court will hold a hearing on the Motion for TRO today, 5/4/2007 at 1:30 pm in Courtroom A826 before Chief Judge Todd J. Campbell. Signed by Judge Todd J. Campbell on 5/4/07. 3 1(aef, ) (Entered: 05/04/2007)

5 Minute Entry for proceedings held before Judge Todd J. Campbell : Motion Hearing held on 5/4/2007 re 1 MOTION for Temporary Restraining Order filed by Philip Workman,. Order to enter. (Court Reporter Cathy Leigh.) (km, ) (Entered: 05/04/2007)

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6 AMENDED COMPLAINT against all defendants, filed by Philip Workman.(Henry, Kelley) (Entered: 05/04/2007)
7 Amended MOTION for Temporary Restraining Order by Philip Workman. (Henry, Kelley) (Entered: 05/04/2007)
8 ORDER granting 1 & 7 Motion for TRO on the terms and conditions stated herein. This Temporary Restraining Order shall expire on 5/14/07. The hearing on a motion for preliminary injunction will be held on 5/14/07 at 8:00 a.m. This TRO is effective upon its issuance on 5/4/07 at 4:15 p.m. Signed by Judge Todd J. Campbell on 5/4/07. (gi, ) Modified on 5/7/2007 (gi, ). (Entered: 05/04/2007)
Copy of Docket Sheet & DE No. 8 sent to the 6CCA this date via e-mail. (aef, ) (Entered: 05/04/2007)
9 TRANSCRIPT prepared by OCR Cathy Leigh for Proceedings (Motion for Temporary Restraining Order) held on 5/4/07 before Chief Judge Campbell.(This document is NOT available on-line. Contact the court reporter at 615-726-8697 to purchase a copy) (gi, ) (Entered: 05/04/2007)
10 NOTICE OF APPEAL as to 8 Order on Motion for TRO, by Phil Bredesen, George Little, Ricky Bell, Gayle Ray, Roland Colson, Julian Davis, Debbie Inglis, John Doe Physicians 1-100, John Doe Pharmacists 1-100, John Doe Medical Personnel 1-100, John Doe Executioners 1-100, John Does 1-100. (Hudson, Mark) (Entered: 05/04/2007)
Copy of Notice of Appeal sent to the 6CCA this date via e-mail. (aef, ) (Entered: 05/04/2007)
USCA Case Number 07-5562 for 10 Notice of Appeal filed by defts. (aef, ) (Entered: 05/07/2007)
11 USCA Appeal Fees received $ 455 receipt number 100 114679 re 10 Notice of Appeal, filed by Ricky Bell, Gayle Ray, John Does 1-100, George Little, Phil Bredesen, Roland Colson, John Doe Physicians 1100, John Doe Pharmacists 1-100, John Doe Medical Personnel 1-100, John Doe Executioners 1-100, Julian Davis, Debbie Inglis, (km, ) (Entered: 05/07/2007)
12 OPINION of USCA vacating the district court's temporary restraining order. (gi, ) (Entered: 05/08/2007)
13 AMENDED TRANSCRIPT prepared by OCR Cathy Leigh for Proceedings (Motion for Temporary Restraining Order) held on 5/4/07 before Chief Judge Campbell.(This document is NOT available on-line. Contact the court reporter at 615-726-8697 to purchase a copy) (gi, ) (Entered: 05/08/2007)
14 Appeal Remark re 10 Notice of Appeal, : Letter (copy) from Kathryn Kasner, Case Mgr., 6CCA to Mr. Mark Hudson re Case No. 07-5562. (km, ) (Entered: 05/09/2007)
18 INFORMATION COPY from 6CCA vacating the district court's

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temporary restraining order. (km, ) (Entered: 05/14/2007)
15 First MOTION to Dismiss by Phil Bredesen, George Little, Ricky Bell, Gayle Ray, Roland Colson, Julian Davis, Debbie Inglis. (Hudson, Mark) (Entered: 05/11/2007)
16 MEMORANDUM in Support of 15 First MOTION to Dismiss filed by Phil Bredesen, George Little, Ricky Bell, Gayle Ray, Roland Colson, Julian Davis, Debbie Inglis. (Hudson, Mark) (Entered: 05/11/2007)
17 ORDER: Motion to Dismiss is moot because pltf Philip R. Workman was executed on 5/9/07. This case is dismissed without prejudice as moot. Signed by Judge Todd J. Campbell on 5/13/07. (gi, ) (Entered: 05/14/2007)

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 486 F.3d 896 (2007)
Philip WORKMAN, Petitioner-Appellee, v.
Governor Phil BREDESEN, et al., Respondents-Appellants.
No. 07-5562.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: May 7, 2007.
89789 *897 *898 *899 Before: SILER, COLE, and SUTTON, Circuit Judges.
SUTTON, J., delivered the opinion of the court, in which SILER, J., joined. COLE, J. (pp. 921-931), delivered a separate dissenting opinion.
OPINION
SUTTON, Circuit Judge.
Philip Ray Workman is scheduled to be executed by the State of Tennessee on May 9, 2007, at 1:00 a.m., for the murder of Lieutenant Ronald Oliver. On May 4, 2007, Workman filed a motion for a temporary restraining order in federal district court, claiming that the State's three-drug protocol for implementing the death penalty violates the Eighth (and Fourteenth) Amendment, and later that day the court granted the motion. Still later that same day, the Governor of Tennessee and the other defendants filed an appeal from that order. Early today, May 7, 2007, the Governor and others filed a 19-page motion in this court to vacate the district court's order. A little later this morning, Workman filed a 45-page brief in response.
This dispute arises from a 25-year-old capital sentence, and the district court's order, if upheld, would be Workman's sixth stay of an execution date set by the State over the last seven years. At no point until last Friday, May 4, 2007, did Workman challenge the State's method of execution, even though the components of the procedure that Workman challenges today have been in existence in the main since 1998. He thus cannot escape the Supreme Court's and this court's limitations on dilatory challenges to an execution procedure.
Workman's prospects for success on the merits also are dim. The Supreme Court has never invalidated a State's chosen method of execution. No court has invalidated the three-drug protocol used by Tennessee (and 29 other jurisdictions). Several state and federal courts have upheld this same three-drug protocol (including the Tennessee Supreme Court in 2005). Our court vacated a similar stay decision in 2006 with respect to a similar challenge and permitted the State to execute the inmate under the protocol. Notwithstanding the decision of the Tennessee Supreme Court in 2005 and the decision of this court in 2006, the State undertook an effort in 2007 to review and improve the procedure. Workman acknowledges that the new procedure is only slightly different from the old procedure, and he offers no explanation how Tennessee has done anything more than make the new procedure less prone to implementation errors. Everything, indeed, the State has done in reviewing and revising the procedure shows that it is trying to prevent Workman from suffering any pain during his execution, not that it is trying or willing to allow a procedure that imposes unnecessary and wanton pain. For these reasons and those elaborated below, we vacate the district court's temporary restraining order.
I.

A.
On August 5, 1981, at 10:00 p.m., Workman walked into a Wendy's restaurant in Memphis, Tennessee, held the employees and a customer at gunpoint, herded them into the manager's office and ordered the manager to empty the day's receipts into a bag. State v. Workman, 667 S.W.2d 44, 46 (Tenn.1984). He instructed the employees to remain in the office, stole an employee's car keys, locked the door and started to leave the restaurant. Id.
900 *900 Responding to a silent alarm that one of the employees had triggered, Lt. Oliver stopped the defendant as he was exiting. Id. At some point, Workman broke away from Lt. Oliver and fled. Additional officers at the scene grabbed Workman, who broke free of their grasp, then shot Lt. Oliver in the chest and a second officer in the arm, fired a second shot at the second officer, then ran to a business next door, pausing mid-flight to fire another bullet at a third officer. Id. Lt. Oliver died from the gun shot. Id. at 47. Police cordoned off the crime scene area and after an extensive search found Workman hiding in the underbrush with a .45 caliber pistol nearby. Id.
In 1982, a jury found Workman guilty of first-degree murder and imposed a capital sentence. Id. Direct review of Workman's conviction and sentence ended without success in 1984. See State v. Workman, 667 S.W.2d 44 (Tenn.), cert. denied, Workman v. Tennessee, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984). In 1986, the Shelby County Criminal Court denied Workman's first petition for post-conviction relief, which the Tennessee Court of Criminal Appeals affirmed. Workman v. State, C.C.A. No. 111, 1987 WL 6724 (Tenn.Ct.Crim.App.1987). The Tennessee Supreme Court denied leave to appeal, and so did the United States Supreme Court. Workman v. Tennessee, 484 U.S. 873, 108 S.Ct. 209, 98 L.Ed.2d 160 (1987).
In 1988, Workman filed a second petition for post-conviction relief, which also was unsuccessful. See Workman v. State, 868 S.W.2d 705 (Tenn.Ct.Crim.App.1993), cert. denied, Workman v. Tennessee, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 555 (1994).
In 1994, Workman filed a petition for a writ of federal habeas corpus in the United States District Court for the Western District of Tennessee. When that proved unsuccessful, see Workman v. Bell, 178 F.3d 759 (6th Cir.1998), cert. denied, 528 U.S. 913, 120 S.Ct. 264, 145 L.Ed.2d 221 (1999), he filed several other petitions in federal court, which also proved unsuccessful. See Workman v. Bell, 227 F.3d 331 (6th Cir. 2000) (en banc), cert. denied, 531 U.S. 1193, 121 S.Ct. 1194, 149 L.Ed.2d 109 (2001) (unsuccessful request to reopen habeas proceedings); Workman v. Bell, 245 F.3d 849 (6th Cir.2001), cert. denied, 532 U.S. 955, 121 S.Ct. 1431, 149 L.Ed.2d 369 and In re Workman, 532 U.S. 954, 121 S.Ct. 1432, 149 L.Ed.2d 369 (2001) (second attempt to reopen habeas proceedings denied).
In March 2001, he collaterally attacked his conviction in state court, filing a petition for a writ of coram nobis. See Workman v. Tennessee, No. 81239 (Tenn.Crim. Ct. March 28, 2001); Tenn.Code § 40-26-105. The state courts rejected the claim. See Tennessee v. Workman, 111 S.W.3d 10 (Tenn.Ct.Crim.App.2002).
In 2003, Workman returned to federal court. He filed a motion for relief from the district court's denial of his first federal habeas petition, see Fed.R.Civ.P. 60(b), claiming that the Tennessee Attorney General perpetrated a fraud upon the district court during Workman's habeas proceedings. The district court denied the motion on October 17, 2006.
On January 17, 2007, the Tennessee Supreme Court scheduled Workman's execution for May 9.
On February 1, Governor Bredesen issued an executive order suspending Tennessee's lethal-injection protocol and asked the Commissioner of Corrections to review the State's capital punishment administration procedures and to develop a new protocol by May 2. See State of Tennessee, Executive Order by the Governor No. 43 (Feb. 901 1, 2007). In late April (April 30), the *901 Governor announced the new lethal-injection procedure for the State, which left the prior procedure unchanged in the main, though it formalized some components of the procedure and improved others.

On April 27, the district court granted Workman a certificate of appealability to seek review of the district court's denial of his Rule 60(b) motion but denied Workman's request for a stay pending appeal. On May 1, Workman filed an appeal from the Rule 60(b) motion and sought a stay of his execution in this court. On May 4, 2007, we denied the motion for a stay, concluding that Workman had not shown a likelihood of success in reversing the district court's Rule 60(b) decision. Workman v. Bell, 484 F.3d 837, 842 (6th Cir. 2007).
That same day, Workman filed a new complaint in a different federal court 0907the Middle District of Tennessee. In an 82-page complaint, he challenged the constitutionality of the State's lethal-injection protocol and sought a temporary retraining order suspending his May 9 execution date. Later that same day (still May 4), the district court granted a temporary restraining order, set a preliminary injunction hearing for May 14 regarding the constitutionality of the procedure and effectively stayed Workman's May 9 execution date.
B.
Given the nature of Workman's challenge, a brief review of the history of Tennessee's execution procedures is in order. In 1796, Tennessee became a State, and its the first constitution mentioned "capital offenses." The common law permitted the death penalty, which the State generally carried out by hanging. Tennessee Dep't of Corr., Capital Punishment Chronology, available at http://www.state. tn.us/correction/newsreleases/pdf/ chronology-rev0905.pdf (last visited May 7, 2007). The State adopted a criminal code in 1829, which codified hanging as the sole method of imposing the death penalty. Id. Death by hanging remained the method of execution in Tennessee until 1913, when the State replaced the gallows with the electric chair. Tennessee's last execution by electrocution took place in 1960. In the aftermath of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Tennessee General Assembly passed a new death penalty statute in 1974, which the State's Supreme Court later declared unconstitutional. The State enacted another death-penalty law in 1977, which still authorized electrocution as the State's method of execution. Tennessee Dep't of Corr., Capital Punishment Chronology.
In 1998, Tennessee legislators made lethal injection an option for capital inmates though it continued to allow inmates to choose electrocution. Abdur'Rahman v. Bredesen, No. M2003-01767-COA-R3-CV, 2004 WL 2246227, at *3 (Tenn.Ct.App. Oct.6, 2004); see also Tenn.Code. Ann. § 40-23-114(a). The State's General Assembly vested the Tennessee Department of Corrections with the authority "to promulgate necessary rules and regulations to facilitate the implementation" of death by lethal injection. Tenn.Code § 40-23-114(c). The Department of Corrections decided to use a three-drug protocol modeled after the one that Texas adopted because "Texas had the most experience with carrying out executions by lethal injection." Abdur'Rahman, 2004 WL 2246227, at *3.
In 2003, an inmate challenged the constitutionality of the State's lethal-injection protocol under the Eighth Amendment. In 2005, the Tennessee Supreme Court rejected the challenge. See Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 314 (Tenn.2005).
902 *902 On February 1, 2007, the Governor directed the Department of Corrections to engage in a "comprehensive review" of Tennessee's death penalty protocol and procedures, both for lethal injection and for electrocution. See Executive Order No. 43; Report on Administration of Death Sentences in Tennessee (Report) at 3 (Apr. 30, 2007) (see Appendix A). The Commissioner of the Department formed a committee, which conducted research, obtained input from experts, sought information from other jurisdictions and updated its execution manual for carrying out the death penalty. Report at 3.
The updated execution manual includes:
0905 Detailed descriptions of each step of the electrocution and lethal-injection processes.
0905 Detailed descriptions of the qualifications, selection processes, and training requirements for execution team members.

0905 A detailed description of the services provided to family members of the condemned inmate's victims.
0905 Enhanced requirements for contemporaneous documentation of each significant stage of an execution as it is carried out.
0905 Enhanced accountability in connection with the procurement, storage, and disposition of the legal-injection chemicals.
Report at 1.
In reviewing the State's lethal-injection protocol, the committee focused on (1) what chemicals should be used in the procedure and in what quantities, (2) what training and qualifications the executioner and the IV team should possess, (3) what method the IV team should use to administer drugs if unable to establish "peripheral venous access," and (4) what documentation should be required regarding the administration of the chemicals. Report at 4. The committee met 19 times from February through April 2007 and held a public hearing in April before issuing its findings. Report at 5.
Chemical selection and amounts. Tennessee decided to retain the three-drug protocol it had adopted in 1998, a protocol that 29 other jurisdictions, including the Federal Government, employ. Report at 6. The protocol involves the injection of 5 grams of sodium thiopental followed by 100 milligrams of pancuronium bromide (Pavulon) followed by 200 millequivalents of potassium chloride, all delivered intravenously. Report at 6. The dose of sodium thiopental, a barbiturate that "reduces oxygen flow to the brain and causes respiratory depression," Execution Procedures for Lethal Injection at 35, quickly anesthetizes the inmate and is sufficient to cause death in the absence of the two additional chemicals in the protocol. Pancuronium bromide is a "muscle paralytic" that "assist[s] in the suppression of breathing and ensure[s] death." Id. The amount of pancuronium bromide the State administers also proves fatal on its own, and the State selected the drug because it hastens death and "prevents involuntary muscular movement that may interfere with the proper functioning of the IV equipment," thus "contribut[ing] to the dignity of the death process." Report at 6, 7. Potassium chloride, a salt, interferes with heart function, causing "cardiac arrest and rapid death." Report at 6; Execution Procedures for Lethal Injection at 35. If administered properly, the sodium thiopental anesthetizes inmates before they receive the remaining two drugs. Report at 7.
Before deciding to continue using the three-drug protocol, the committee considered two variations on this 903 procedure a 0907 two-drug option and a one-drug option. The two-drug option would have eliminated *903
pancuronium bromide from the protocol. The State rejected this approach after concluding that "the administration of potassium chloride without a preceding dose of pancuronium bromide would typically result in involuntary movement which might be misinterpreted as a seizure or an indication of consciousness." Report at 8. The State rejected a one-drug protocol, which would have used sodium thiopental alone, because it would slow down the death process and because "the effect of the required dosage of sodium thiopental would be less predictable and more variable when it [was] used as the sole mechanism for producing death." Id. On top of these concerns, the commission noted that no State had used a one- or two-drug protocol to carry out an execution, leaving Tennessee with no data or case studies to indicate that these options would work better and would operate more humanely than the three-drug protocol. Id.
The State also considered the benefits of the three-drug protocol 0907that the protocol had worked well in the past, that all courts that had reviewed the protocol had deemed it constitutional and that dozens of States had used it and thus could provide information, data and expertise about their experiences with it and refinements to it. The State balanced these considerations against the risks associated with the three-drug protocol 0907that using three different chemicals is the "most complicated" of the three options, that "there is a remote chance of an error in implementation that may cause the inmate to incur brief pain" and that pancuronium bromide requires special attention because it must be refrigerated. Report at 7-8. Balancing these costs and benefits, Tennessee chose to continue using the three-drug protocol.
Training and qualifications of IV team and executioner. Tennessee's IV teams have always consisted of "Emergency Medical Technicians with IV certification or certified paramedics," Report at 9, but the previous

execution manual did not contain language requiring team members to possess this training and these qualifications. The State updated the manual to make these requirements express. Id.; see also Execution Procedures for Lethal Injection at 32-33. Despite the fact the State has mandated that IV team members adhere to continuing education requirements to keep their licences and certification current, as well as required that team members "regularly practice establishing IV access during execution training exercises," these requirements had not been contained in the execution manual. The State also made these requirements express. Report at 9; Execution Procedures for Lethal Injection at 33, 50.
Tennessee, finally, formalized its previously unwritten rule that executors must be trained in IV therapy so that they can recognize when they have failed to establish IV access. Report at 9; Execution Procedures for Lethal Injection at 32-33.
Cut-down procedure. If the IV team cannot locate a usable vein during an execution (due for example to drug use by the inmate), see Execution Procedures for Lethal Injection at 41, Tennessee uses a cut-down procedure0907which means that a physician makes an incision in order to obtain IV access. After reviewing the cutdown procedure and its alternatives "with several experts," the State concluded that "cut-down procedures are not particularly difficult for physicians to perform," and therefore decided to keep the procedure as its contingency plan during the lethal-injection process. Report at 9; Execution Procedures for Lethal Injection at 20, 41, 67.
Documentation. Tennessee revised its procedures to require "enhanced documentation" for procurement and 904 storage of the chemicals used for lethal injection. Report *904 at 9. The State also amended its execution manual
to include a "contemporaneous documentation" requirement0907 meaning that a member of the IV team must document the administration of the three-drug protocol during an execution. Id. at 10; Execution Procedures for Lethal Injection at 21, 65, 82-86.
II.
We have jurisdiction, as an initial matter, to review the district court's temporary restraining order. See N.E. Ohio Coal. for Homeless & Serv. Employees Int'l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1005 (6th Cir.2006). While we generally do not have jurisdiction to review temporary restraining orders, our jurisdiction is not controlled by the name that a claimant attaches to a motion or the name that a district court attaches to an order. Rather than looking to "the label attached" by the trial court, we "look[ ] to the nature of the order and the substance of the proceeding below to determine whether the rationale for denying appeal applies." Id. Were the shoe on the other foot, we suspect, Workman would agree.
Name aside, the salient question is whether the order effectively operates as an "injunction" 0907which is what 28 U.S.C. § 1292(a)(1) permits us to review on an interlocutory basis. The Tennessee Supreme Court set Workman's execution date for May 9; the temporary restraining order runs through May 14; and once May 9 passes Tennessee may not execute its judgment until a new execution date is set by order of the Tennessee Supreme Court. See Tenn. Sup.Ct. R. 12.4(E). To suggest, as Workman does, that the district court's order does not enjoin Tennessee from executing Workman on May 9, that the State has meaningful appellate options for imposing this 25-year-old sentence other than through interlocutory review and that the trial court's order does not affect an important interest of the State is untenable. The order "has the practical effect of an injunction," which simultaneously operates to stay Workman's long-delayed execution and to give us authority to review it. N.E. Ohio Coal., 467 F.3d at 1005; 28 U.S.C. § 1292(a)(1); see Boltz v. Jones, 182 Fed.Appx. 824, 825 (10th Cir.2006) (vacating temporary restraining order that stayed execution, reasoning that "[t]hough the order is denominated a TRO rather than an injunction, we have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1)"); see also Carson v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981) (holding that an interlocutory order is immediately appealable when appellant can show that the order might have a "serious, perhaps irreparable consequence, and that the order can be effectually challenged only by immediate appeal") (internal quotation marks omitted); cf. Hill v. McDonough, ___ U.S. ___, 126 S.Ct. 2096, 2104, 165 L.Ed.2d 44 (2006) (noting "the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts").

III.
We review a district court's decision to issue a temporary restraining order for abuse of discretion. See Bowersox v. Williams, 517 U.S. 345, 346, 116 S.Ct. 1312, 134 L.Ed.2d 494 (1996) (per curiam) (reviewing order involving stay of execution); N.E. Ohio Coal., 467 F.3d at 1009; see also Alley v. Little, 181 Fed.Appx. 509, 512 (6th Cir.2006) (explaining that we "weigh the merits of the district court's stay [of an execution] . . . based on the reason furnished in its opinion."). We will find an abuse of discretion only when left with "a definite and firm 905 conviction that the trial court committed a clear error of judgment." Logan v. Dayton Hudson *905 Corp., 865 F.2d 789, 790 (6th Cir.1989). "A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard." Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 891 (6th Cir.2004).
In reviewing the district court's decision, we consider the same four factors that the district court considered: (1) whether the claimant has demonstrated a strong likelihood of success on the merits, (2) whether the claimant will suffer irreparable injury in the absence of a stay, (3) whether granting the stay will cause substantial harm to others, and (4) whether the public interest is best served by granting the stay. N.E. Ohio Coal., 467 F.3d at 1009.
We have two objections to the district court's order0907one that the district court briefly considered in its four-page order (whether Tennessee's three-drug protocol likely violates the Eighth Amendment) and one that it did not (whether Workman has waited too long in bringing this challenge). Before we reach these issues, however, we must address Workman's contention that the State has waived any right to challenge the district court's decision on these two grounds.
A.
After challenging our power to review the district court's order, Workman challenges the State's power to contest the bases for it. Last Friday morning, on May 4, 2007, Workman served a motion for a temporary restraining order on the State, and the court held a hearing on the motion. At the hearing, the State took the legitimate position that the court had no authority to grant the order because Workman had not yet filed his complaint and that it would not respond to a complaint that it had not seen. After the hearing, Workman filed his 82-page complaint, and an hour later the district court (without holding a new hearing) granted the motion. The State did not waive any challenges to the motion under these circumstances, and Workman offers no relevant authority to suggest otherwise.
The State also did not waive these arguments in the motion that it filed in our court this morning. As to undue delay, the State makes that consideration one of the key points of the motion (if not the key point of the motion). As to the likelihood that a court would strike down this procedure on constitutional grounds, the State throughout its motion relies heavily on our decision in Alley and the Tennessee Supreme Court's decision in Abdur'Rahman 0907one of which found that this same claim had little likelihood of success on the merits, and the other of which rejected the claim on the merits. The State also specifically critiques the district court's reliance on the opinions of Dr. Heath as grounds for establishing a "likelihood of success," objecting that the district court failed to address the Alley and Abdur'Rahman decisions, even though they addressed the same issue and even though they found unpersuasive the reports of this same doctor about the same procedure. Motion at 14 n. 12. Again, no waiver occurred.
B.
Like a prior panel of this court that considered a challenge to Tennessee's lethal-injection procedure a year ago, we think that Workman has "a small likelihood" of success with respect to this challenge because his contention is "unsupported by current law, which offers no basis for finding lethal injection protocols unconstitutional." Alley, 906 181 Fed.Appx. at 513. And like that panel, we think that *906 the district court abused its discretion in concluding otherwise. Id. at 511.

In contending that Tennessee's lethal-injection protocol likely violates the Eighth Amendment's prohibition on imposing "cruel and unusual punishments," U.S. Const. amend. VIII, Workman faces several obstacles. First, the Supreme Court has never invalidated a State's (or the Federal Government's) chosen method of execution. As best we can tell, the Court has considered three such challenges under the Eighth Amendment, only one of which reached the merits. See Wilkerson v. Utah, 99 U.S. 130, 134-35, 25 L.Ed. 345 (1878) (holding that the use of a firing squad was not cruel and unusual); In re Kemmler, 136 U.S. 436, 446-49, 10 S.Ct. 930, 34 L.Ed. 519 (1890) (declining to apply the Eighth Amendment to the States); State of La. ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 91 L.Ed. 422 (1947) (declining to apply the Eighth Amendment to the States). Since these decisions, the Court has had ample opportunities to constrain methods of execution that seem to raise far greater risk of cruel and unusual punishment than lethal injection, but it has declined to do so. See, e.g., Campbell v. Wood, 511 U.S. 1119, 1119, 114 S.Ct. 2125, 128 L.Ed.2d 682 (1994) (Blackmun, J., dissenting from denial of certiorari) (hanging); Gomez v. U.S. Dist. Court for the N. Dist. of Cal., 503 U.S. 653, 657-58, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (Stevens, J., dissenting from vacation of stay of execution) (gas chamber) (critiquing the majority for sanctioning the use of the gas chamber when most States had moved away from this method of execution because it caused unnecessary infliction of pain); Glass v. Louisiana, 471 U.S. 1080, 1080, 105 S.Ct. 2159, 85 L.Ed.2d 514 (1985) (Brennan, J., dissenting from denial of certiorari) (electrocution); Gray v. Lucas, 463 U.S. 1237, 1240, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983) (Marshall, J., dissenting from denial of certiorari) (gas chamber).
Second, the experience of the lower state and federal courts is similar. No court to our knowledge has issued a final decision declaring a State's lethal-injection protocol unconstitutional. And several lower courts have upheld this specific three-drug, lethal-injection protocol. See, e.g., Abdur'Rahman, 181 S.W.3d at 297-98; Aldrich v. Johnson, 388 F.3d 159, 161 (5th Cir.2004) (lethal injection in Texas); People v. Snow, 30 Cal.4th 43, 132 Cal. Rptr.2d 271, 65 P.3d 749, 800-01 (2003); Sims v. State, 754 So.2d 657, 668 (Fla. 2000); State v. Webb, 252 Conn. 128, 750 A.2d 448, 453-57 (2000); LaGrand v. Stewart, 133 F.3d 1253, 1265 (9th Cir.1998) (lethal injection in Arizona); cf. Hill v. Lockhart, 791 F.Supp. 1388, 1394 (E.D.Ark.1992) (Arkansas lethal injection protocol); State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602 (1995); State v. Deputy, 644 A.2d 411, 421 (Del.Super.Ct.1994); State v. Moen, 309 Or. 45, 98-99, 786 P.2d 111 (1990); Hopkinson v. State, 798 P.2d 1186, 1187 (Wyo.1990). One cannot credibly establish a likelihood of success in attacking a death-penalty procedure when the theory of success has yet to succeed in a considerable number of cases over a considerable number of years.
Third, one of the benchmarks the Court uses to identify Eighth Amendment violations a 0907 consideration of the "evolving standards of decency that mark the progress of a maturing society," McCleskey v. Kemp, 481 U.S. 279, 300, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (internal quotation marks omitted)0907does not help Workman. The "clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's 907 legislatures." Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 *907 L.Ed.2d 335 (2002) (internal quotation marks omitted). As modern sensibilities have moved away from hanging, the firing squad, the gas chamber and electrocution as methods of carrying out a death sentence, so too have the death-penalty procedures of the States and the Federal Government. While the Supreme Court has tolerated continuity in this area, the democratic processes have demanded change. The method of execution in 37 of the 38 States that authorize capital sentences has evolved to make lethal injection the preferred method of carrying out a death sentence with only Nebraska clinging to electrocution. The Federal Government now uses lethal injection as well. See Death Penalty Information Center, Lethal Injections, available at http://www. deathpenaltyinfo.org/ article.php?did= 1686&scid=64# drugs (last visited May 7, 2007); see also Jones v. Allen, 485 F.3d 635, 640-41 n. 3 (11th Cir.2007) (noting that Alabama also uses 3-drug protocol).
Not only is there a consensus among the States and the Federal Government that lethal injection is the most humane method of execution, but there also is a consensus among these jurisdictions that the three-drug protocol used by Tennessee is the preferred form of lethal injection. Twenty-nine States (and the Federal Government) use the same three drugs, while one State (New Jersey) uses a combination of the first two drugs in the protocol, and the remaining seven States0907Kansas, Kentucky, Nevada, New Hampshire, Pennsylvania, South Carolina and Virginia0907apparently do not specify what drugs they use. Death Penalty Information Center, Lethal Injections; see also Report at 6 ("At least 30 jurisdictions . . . have a three-chemical lethal injection

protocol consisting of sodium thiopental, pancuronium bromide, and potassium chloride in varying amounts."). If "evolving standards of decency" are the measure of constitutionality, Tennessee has satisfied the requirement.
Fourth, the other benchmark the Court uses to identify Eighth Amendment violations 0907whether the punishment involves the "unnecessary and wanton infliction of pain," Nelson, 541 U.S. at 645, 124 S.Ct. 2117 (internal quotation marks omitted); cf. id. at 644, 124 S.Ct. 2117 (referring to the "deliberate indifference" standard)0907does not help Workman either. The whole point of the Tennessee lethal-injection protocol is to avoid the needless infliction of pain, not to cause it. The idea is to anesthetize the individual with one drug before the State administers the remaining two drugs, so that the serial combination of drugs causes a quick and pain-free death. See Abdur'Rahman, 181 S.W.3d at 307-08 (noting "that a dosage of five grams of sodium Pentothal as required under Tennessee's lethal injection protocol causes nearly immediate unconsciousness and eventually death[,] . . . that such a dose would cause an inmate to be unconscious in about five seconds and that the inmate would never regain consciousness and would feel no pain prior to dying").
No one debates these premises, or this purpose, of Tennessee's lethal-injection procedure. We thus do not have a situation where the State has any intent (or anything approaching intent) to inflict unnecessary pain; the complaint is that the State's pain-avoidance procedure may fail because the executioners may make a mistake in implementing it. But no one has demonstrated that this problem has occurred in Tennessee in the past, and as we have shown the State has extensive procedures in place to prevent this very thing from happening. The risk of negligence in implementing a death-penalty procedure, particularly when the risk has not come to pass in the 908 State, does not establish a cognizable Eighth Amendment *908 claim. At some level, every execution procedure ever used contains risk that the individual's death will not be entirely pain free. See Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir.2005) ("Obviously there are risks involved in virtually every method of execution. However, the Supreme Court has rejected Eighth Amendment challenges based on an `unforeseeable accident,' and has presumed that state officials have acted `in a careful and humane manner.'") (quoting Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462, 464, 67 S.Ct. 374, 91 L.Ed. 422 (1947)); Campbell v. Wood, 18 F.3d 662, 687 (9th Cir.1994) (en banc) ("[T]he risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.").
Fifth, even though Tennessee has adopted a method of execution designed to eliminate rather than cause pain, even though the vast majority of executions carried out in modern times have moved progressively to this procedure, even though no state or federal court has issued a final decision invalidating the three-drug protocol under the Eighth Amendment, even though the Tennessee Supreme Court in 2005 held that the three-drug protocol did not inflict "unnecessary physical or psychological pain and suffering," Abdur'Rahman, 181 S.W.3d at 307, and even though our court in 2006 permitted the State to execute Sedley Alley under the three-drug protocol, Alley, 181 Fed.Appx. at 514, the State has not left it at that. In 2007, the Tennessee Governor initiated a review of the procedure to ensure "that death sentences are administered in a constitutional and appropriate manner." Executive Order No. 43, at 1. To that end, Governor Bredesen directed the corrections commissioner to undertake "a comprehensive review of the manner in which death sentences are administered in Tennessee" and asked the commissioner to establish a revised protocol by May 2. Id. at 1-2.
In response, the corrections commissioner appointed a committee to prepare a report on the administration of death sentences in Tennessee. Among other things, the committee reviewed available court decisions addressing lethal injection protocols; spoke with officials in sister States regarding their experiences in implementing lethal injection; attended an on-site presentation by the Federal Bureau of Prisons' execution team; consulted with anesthesiologists; and held a public hearing, inviting representatives from the Tennessee Medical Association, the Tennessee Bar Association, the University College of Medicine, and the Southeastern Pharmacology Society, among others. See Report at 4-5.
"The most significant issue" the committee faced was "the selection of the chemicals and dosage to be used in lethal injection executions in Tennessee." Id. at 6. "After considerable research and consultation with medical experts," it "retained a three-chemical protocol." Id. While several considerations drove the committee's decision (including weaknesses in the one-drug and two-drug options), the paramount consideration was the reality that "the three-chemical protocol has been used in almost all of the lethal injection executions that have taken place in this country, allowing Tennessee to draw upon the considerable experience of other jurisdictions in implementing

the protocol." Id. at 7. The committee also sought to improve Tennessee's practices by "develop[ing] updated execution manuals for lethal injection . . . that incorporate best practices" from other jurisdictions. Id. at 1.

Call the requirements of the Eighth Amendment what you will 0907avoiding the "unnecessary and wanton infliction of 909 pain," refraining from "deliberate indifference" *909 to the needs of inmates or keeping up with "evolving
standards of decency"0907 they do not prohibit the adoption, implementation and refinement of a lethal-injection procedure in as comprehensive manner as this. The efforts of the Governor and the corrections department suggest a State intent not just on satisfying the requirements of the Eighth Amendment but on far exceeding them.

Attempting to fend off this conclusion, Workman maintains that the use of pancuronium bromide (the second of the three drugs used by Tennessee) must be cruel and unusual because even veterinarians refuse to use it in euthanizing animals. On reflection, however, this contention is more of a debater's point than a legitimate attack on the three-drug protocol. In euthanizing animals, veterinarians use just one drug a 0907 barbiturate not unlike sodium thiopental (the first drug used by Tennessee), except that the barbiturate used on animals acts more slowly. The problem with using a barbiturate alone, Tennessee determined, is that it takes too long, and no other State uses a barbiturate by itself. Report at 8 (noting that a multi-drug protocol "likely result[s] in a more rapid death" and that "to date no other state has used a [one-drug] protocol"). In its recent review of the protocol, Tennessee also considered the other option for eliminating pancuronium bromide from the procedure-use the first and third drugs. As the State explained, however, a two-drug protocol would lead to convulsions, a phenomenon the State understandably wished to avoid out of respect for the dignity of the individual and presumably out of respect for anyone, including the inmate's family, watching the execution. Id. at 8 (Lethal injection without pancuronium bromide "would typically result in involuntary movement which might be misinterpreted as a seizure or an indication of consciousness."). Like the vast majority of States and the Federal Government, as a result, Tennessee uses pancuronium bromide to prevent this from happening. Id. at 7 ("[P]ancuronium bromide . . . speeds the death process, prevents involuntary muscular movement that may interfere with the proper functioning of the IV equipment, and contributes to the dignity of the death process.").

That employees of the corrections department, who are not physicians, perform the execution procedure in a typical case does not change matters. For one, no one alleges that running an IV requires a doctor. For another, the State has a doctor on hand to address any problems if the trained employee cannot start the IV. Execution Procedures for Lethal Injection at 20 (A physician must "be present at the precise time of execution" and "perform the cut-down procedure should the IV Team be unable to find a vein adequate to insert the catheter"). As the State's recent review of its procedures confirms, moreover, it requires its employees to engage in considerable training to handle executions. Report at 9. While Workman claims that the employees and doctor should be next to him during the administration of the procedure (rather than in an adjacent room), there are countervailing interests at work. As the state trial court observed in upholding this procedure:

A paramount concern in an execution is security. The condemned has committed a violent act,

and he is facing termination of life. Under these circumstances it is necessary to deviate from the

surgical norm of physical proximity. It is necessary, for security reasons, to assure that the

executioner is securely removed from the condemned. The separateness of the executioner and

910

the syringes containing the lethal dosages, while it does decrease the executioner's *910 ability to

monitor intake of the Pentothal, is for good reason. To make up for the separateness of the

executioner, the Tennessee lethal injection method has a TV monitor in the execution room, a

camera above the gurney, and the warden is located in the execution room within a foot of the

condemned's head. The warden has been trained on detecting problems such as crimping of the

IV line, or failure of the injection to go into the vein.

Abdur'Rahman v. Sundquist, No. 02-2236-III, Order at 9 (Tenn. Ch. Ct. 20th Dist. June 2, 2003), available at http:// www.tsc.state.tn.us/OPINIONS/TSC/Cap Cases/Rahman/Rahman.htm (last visited May 7, 2007). For exceedingly practical reasons, no State can carry out an execution in the same manner that a hospital monitors an operation.

Nor, relatedly, does the Eighth Amendment require an anesthesiologist to be on hand to monitor the inmate's consciousness during every execution. While it may well be a good practice for a State to hire an

anesthesiologist for each execution (assuming one is willing to handle the task), the Constitution does not require it. The risks of pain that Workman complains about remain remote (and do not occur when the procedure is properly implemented), and no one has shown that they have occurred in Tennessee in the past. Under its lethalinjection protocol, Tennessee administers 5 grams of sodium thiopental to anesthetize the inmate. See Execution Procedures for Lethal Injection at 35. That lethal dosage represents the highest level that other States use, and it renders the inmate unconscious "nearly immediate[ly]," Abdur'Rahman, 181 S.W.3d at 308. This 5-gram dose thus reduces, if not completely eliminates, any risk that Workman would "incur constitutionally excessive pain and suffering when he is executed." See id. at 308 ("Dr. Heath [Workman's expert] . . . testified that a lesser dosage of two grams of sodium Pentothal would cause unconsciousness in all but `very rare' cases and that a dosage of five grams would `almost certainly cause death.'"). The protocol also calls for certification and training requirements that reduce the risk of error in administering the drugs. Although the protocol does not contain an explicit instruction to monitor Workman's consciousness, it does require the participation of a certified IV team and the presence of a doctor. This combination of factors suggests that there is ample recourse if the 5-gram dosage of sodium thiopental 14 0907 times the dosage used to anesthetize hospital patients 0907somehow fails to render Workman unconscious.
Under these circumstances, we cannot accept the district court's conclusion that Tennessee's lethal-injection protocol "creates a foreseeable and likely unnecessary risk that the Plaintiff will incur constitutionally excessive pain and suffering when he is executed." Temporary Restraining Order at 3. Only one thing has changed since a panel of this court convincingly demonstrated that this challenge to the Tennessee procedure has a "small likelihood of . . . success," Alley, 181 Fed.Appx. at 513, and accordingly vacated a similar stay order0907the State has reevaluated and improved its procedure. Then, as now, it remains the case that no state or federal court has issued a final decision invalidating the three-drug protocol, and several decisions (including the Tennessee Supreme Court's decision in 2005) have upheld this procedure. In its defense, the district court of course had just a half day to consider all of this, which brings us to our second objection to Workman's action 0907undue delay.
911 *911 C.
While the absence of any meaningful chance of success on the merits suffices to resolve this matter, Workman faces a second problem: He waited far too long to bring this challenge 0907just five days before what is now the sixth execution date the Tennessee has set for him. The district court did not consider this reason for denying the motion (perhaps because it had too little time to do so and perhaps because it had only one party's0907Workman's0907brief), even though the Supreme Court has indicated that in considering the equitable remedy of staying an execution, "a district court must consider . . . the extent to which the inmate has delayed unnecessarily in bringing the claim." Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) (emphasis added); see Tompkin, 362 F.3d at 891 (abuse of discretion occurs when district court makes a mistake of law).
Workman responds that he filed this lawsuit within four days of receiving the revised lethal-injection protocol. See TRO Motion at 52-53. But as Workman acknowledges, the new protocol is only "slightly different" from the old protocol, Complaint at 3, and he does not point to any revision that makes the protocol worse, only to revisions that could have been made but were not. Workman's problem, then, is not just that he waited until five days before his execution; his challenge would have been late even had he filed it immediately before or after the Governor set his most recent execution date on January 17, 2007. Having refused to challenge the old procedure on a timely basis, he gets no purchase in claiming a right to challenge a better procedure on the eve of his execution.
There is "a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay." Nelson, 541 U.S. at 650, 124 S.Ct. 2117. Even had Workman filed this challenge on January 17, 2007, that still would have been "too late in the day," Hill v. McDonough, ___ U.S. ____, 126 S.Ct. 2096, 2104, 165 L.Ed.2d 44 (2006), to allow the trial and appellate courts to reach the merits of any subsequent challenge. See Jones, 485 F.3d at 639-40 n. 2 ("[A]djudicating Jones's [lethal-injection-protocol] claim would take much more than three months and . . . a subsequent appeal would add months, if not years, to this litigation.") (internal quotation marks omitted); Harris v.

Johnson, 376 F.3d 414, 417 (5th Cir.2004) ("The brief window of time between the denial of certiorari and the state's chosen execution date-in this case, four months-is an insufficient period in which to serve a complaint, conduct discovery, depose experts, and litigate the issue on the merits."). He thus cannot revive a dilatory action when the only concrete challenges to the new procedure were features of the old procedure.
Workman's opportunities to avoid this scenario0907where the only way to litigate the validity of the three-drug protocol is to stay his execution0907were many. The Tennessee Supreme Court affirmed his death sentence in 1984, see State v. Workman, 667 S.W.2d 44 (Tenn.1984), the state courts denied his petition for post-conviction relief in 1993, see Workman v. State, 868 S.W.2d 705 (Tenn.Ct.Crim.App.1993), and we denied his initial federal habeas petition in 1998, see Workman v. Bell, 178 F.3d 759 (6th Cir.1998); see also Neville v. Johnson, 440 F.3d 221, 222 (5th Cir.2006) ("A challenge to a method of execution may be filed at any time after the plaintiff's conviction has become final on direct review."). In 1998, Tennessee prescribed lethal injection as a lawful means 912 of execution, *912 see Tenn.Code § 40-23-114; 1998 Tenn. Pub. Acts ch. 982, and the State adopted "a lethal injection protocol that included the use of three drugs," the same three drugs the State currently uses, Abdur'Rahman v. Bredesen, 181 S.W.3d at 300. In 2000, the legislature deemed lethal injection the presumptive method for all executions in the State in 0907 other words, the State will use that method of execution unless the individual affirmatively opts for electrocution. See Tenn.Code § 40-23-114; 2000 Tenn. Pub. Acts ch. 614.
By 2000, Workman had completed his state and federal direct and (initial) collateral attacks on his sentence, and he faced the prospect of imminent execution by lethal injection. Nonetheless, from that year to the present, he chose not to challenge the procedure, whether in federal or state court. In April 2000, Workman came within two days of being executed by lethal injection but he did not challenge the procedure before (or after) a stay was issued. Workman v. Bell, 209 F.3d 940 (6th Cir. 2000) (en banc). In January 2001, he came within five days of execution but did not challenge the procedure before (or after) a stay was issued. Workman v. Bell, Nos. 96-6652, 00-5367 (6th Cir. Jan. 26, 2001) (en banc). In March 2001, he came within two hours of execution but did not challenge the procedure before (or after) a stay was issued. Workman v. State, 41 S.W.3d 100, 101 (Tenn.2001). In September 2003, he came within nine days of execution but did not challenge the procedure before (or after) an executive reprieve was granted. See Workman v. Bell, No. 03-2660 (W.D.Tenn. Sept. 15, 2003). And in September 2004, he came within 20 days of execution but did not challenge the procedure before (or after) a stay was issued. Workman v. Bell, Nos. 94-2577, 03-2660 (W.D.Tenn. Sept. 2, 2004).
By any measurable standard, Workman has had ample time to challenge the procedure. While Workman may be correct that his other litigation efforts during these seven years-his state coram nobis petition and his federal Rule 60(b)(6) motion, among others-did not require a challenge to the procedure in these actions, his suggestion that he had no way to challenge the procedure simultaneously in a separate action in federal or state court is simply mistaken. Throughout this time, other Tennessee death-row inmates, though not Workman, have challenged the constitutionality of the State's lethal injection protocol. See Alley, 181 Fed.Appx. 509; Abdur'Rahman, 181 S.W.3d 292. Nothing prevented Workman from intervening in the Abdur'Rahman case. See Tenn. R. Civ. P. 24.02. And our court told Alley in 2006 that he had been dilatory in bringing his challenge. See Alley v. Little, 186 Fed.Appx. 604, 607 (6th Cir.2006) (vacating district court stay and noting that challenge "was very late in coming"). Having waited until the eve of his sixth execution date to bring this challenge and having chosen to challenge the improved (but not the inferior) method of execution, Workman must face the reality that this is the kind of "dilatory" suit from which "federal courts can and should protect [the] States." Hill, 126 S.Ct. at 2104. See Jones, 485 F.3d at 640-41 n. 3 (noting that delay in filing lethal-injection challenge could not be justified on ground that inmate knew little about the procedure because the thrust of the challenge went to the impermissibility of the same three-drug procedure that most States use).
Any balancing of hardships on this record strongly favors the State with respect to this 25-year-old sentence. "A State's interests in finality are compelling when a federal court of appeals issues a mandate denying federal 913 habeas relief," Calderon v. Thompson, 523 U.S. 538, 556, 118 S.Ct. *913 1489, 140 L.Ed.2d 728 (1998)0907an event which in Workman's case occurred in 1999, see Workman v. Bell, No. 96-6652 (6th Cir. Oct. 12, 1999), or 2000 at the latest. At that point, the State's interest in finality acquired "an added moral dimension. Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out." Calderon, 523 U.S. at 556, 118 S.Ct. 1489 Indeed, while we need not rely on the point, it bears adding that, whether one looks to the test for determining the timeliness of a § 1983 death-penalty-procedure action adopted by the majority or

the dissent in our recent decision in Cooey v. Strickland, 479 F.3d 412 (6th Cir.2007), a challenge by Workman to the three-drug protocol in January 2007 seemingly would have been time barred under either approach.
It is true, as Workman points out and as the district court pointed out, that a few courts have granted stays to litigate this question. But we have not seen a case, and Workman has not pointed us to a case, where the inmate passed on as many opportunities to challenge the three-drug protocol as Workman has and the inmate has waited so long after the completion of his first federal habeas petition to bring the action.
At some point in time, the State has a right to impose a sentence-not just because the "State's interests in finality are compelling," but also because there is a "powerful and legitimate interest in punishing the guilty," which attaches to "the State and the victims of crime alike." Calderon, 523 U.S. at 556, 118 S.Ct. 1489 (internal quotation marks omitted). Twenty-five years after the imposition of this sentence, that time, it seems to us, has come.
IV.
For these reasons, we vacate the district court's temporary restraining order.
APPENDIX A
TENNESSEE DEPARTMENT OF CORRECTION
Report and Administration of Death Sentences in Tennessee
April 2007
Prepared by Tennessee Department of Correction
TABLE OF CONTENTS
Executive Summary .............................................................. 914
Introduction ................................................................... 915
Methodology .................................................................... 915
Selected Areas of Inquiry0907Lethal Injection ............................... 917 A. Lethal Injection Chemical Selection .................................... 917 B. Lethal Injection ChemicalProcurement and Storage ....................... 919 C. IV Team Qualification and Training ..................................... 919 D. Use of Cut-
Down Procedure .............................................. 920 E. Exucutioner Qualifications and Training ................................ 920 F. Chemical Administration Documentation .................................. 920
Selected Areas of Inquiry0907Electrocution .................................. 920 A. History of Tennessee's Electric Chair .................................. 920 B. Electrocution Equipment Control Settings ............................... 920 C. Electrocution Equipment Maintenance and Testing ........................ 920

914 *914
Appendix ....................................................................... 921 A. Executive Order No. 43 ................................................. 921 B. Florida Governor's Commission on Administration of Lethal Injection .... 921 C. Transcript of April 5, 2007 Public Hearing ............................. 921
Executive Summary
In response to Executive Order No. 43, Commissioner George M. Little appointed a committee to review the administration of death sentences in Tennessee and revise the Department's Protocols and Manual. The Committee utilized a number of resources including, but not limited to, the following:
0905 The Office of the Attorney General and Reporter
0905 Participants in past Tennessee executions, including Riverbend Maximum Security Institution Warden Ricky Bell, members of the IV team, and a physician
0905 Corrections professionals and legal experts from other jurisdictions
0905 Anesthesiologists
0905 An electrical Engineer
0905 The Final Report of Florida's Governor's Commission on Administration of Lethal Injection
0905 Court opinions in execution protocol cases from Tennessee and other jurisdictions.
The Department also held a public hearing on April 5, 2007 for the purpose of receiving input from persons with relevant expertise on the issue of how to best ensure that the Department's execution protocol provides constitutional and appropriate executions. Two attorneys made presentations at the hearing, and comments were also taken from other attendees.
Based upon its research and the input it receive from various sources, the Department developed updated execution manuals for lethal injection and electrocution that incorporate best practices from the Department's own experience and that of other jurisdictions. Highlights includes:
0905 Detailed descriptions of each step of the electrocution and lethal injection processes
0905 Detailed descriptions of the qualifications, selection processes, and training requirements for execution team members
0905 A detailed description of the services provided to family members of the condemned inmate's victims
0905 Enhanced requirements for contemporaneous documentation of each significant stage of an execution as it is carried out
0905 Enhanced accountability in connection with the procurement, storage, and disposition of the lethal injection chemicals.
The protocol for lethal injections employs the following chemicals in the sequence shown:
0905 5 Grams of Sodium Thiopental in 200 cc of sterile water
0905 100 Mg of Pancuronium Bromide (1 Mg/ml)
0905 100 mL of 2 mEq/ml Potassium Chloride, for a total of 200 mEq.
After the infusion of each chemical, the IV line is flushed with 50 cc saline solution.

At least 29 other jurisdictions, including the Federal Bureau of Prisons, have lethal injection protocols consisting of sodium thiopental, pancuronium bromide, and potassium chloride in varying amounts. Sodium thiopental is a 915 barbiturate that rapidly induces general anesthesia. Pancuronium *915 bromide is a neuromuscular blocking agent that induces paralysis and causes breathing to cease. Potassium chloride is a salt that interferes with the electrical signaling essential to normal heart function. In the amounts listed above, each of the chemicals, independently, is lethal.
Tennessee has chosen to use 5 grams of sodium thiopental, the largest amount used by other jurisdictions, to provide enhanced assurance that the condemned inmate will be unconscious when the remaining chemicals are infused.
The revised lethal injection and electrocution manuals and protocols will provide further assurance that death sentences are administered in a constitutional and appropriate manner in Tennessee.
Introduction
On February 1, 2007, Governor Phil Bredesen issued Executive Order No. 43 directing the Department of Correction to complete a comprehensive review of the manner in which the death penalty is administered in Tennessee. The Executive Order provided as follows:
1. I hereby direct the Commissioner of Correction ("Commissioner") to initiate immediately a comprehensive review of the manner in which death sentences are administered in Tennessee. This review shall specifically include the state's protocols and any related procedures, whether written or otherwise, related to the administration of death sentences, both by lethal injection and by electrocution. In completing this review, the Commissioner is directed to utilize all relevant and appropriate resources, including but not limited to scientific and medical experts, legal experts, and Correction professionals both from within the outside of Tennessee. As a component of this review, the Commissioner is further directed to research and perform an analysis of best practices used by other states in administering the death penalty.
2. As soon as practical, but no later than May 2, 2007, the Commissioner of Correction is directed to establish and provide to me the new protocols and related written procedures for administering death sentences in Tennessee, both by lethal injection and electrocution. In addition, the Commissioner is directed to provide me with a report outlining the results of the review completed pursuant to paragraph one (1) above.
In response to Executive Order 43, Commissioner Little appointed a Committee to undertake the required review and prepare recommended protocols for the administration of the death penalty in Tennessee. After extensive research and after receiving input from experts in relevant fields, the Committee developed new execution manuals incorporating written procedures based on Tennessee's own experience and that of other jurisdictions, as well as input from medical experts.
This report describes the Department's methodology in developing the new manuals and the input it received from various sources, and summarizes the most significant issues addressed in the manuals.
Methodology
In response to Executive Order No. 43, Commissioner George M. Little appointed a Committee to undertake the required review of the manual of procedures for electrocution and lethal injection in Tennessee. The Committee consisted of Deputy Commissioner Gayle Ray, Assistant Commissioner of Operations Roland Colson, Riverbend 916 Maximum Security Institution *916 Warden Ricky Bell, Executive Assistant to the Commissioner Julian Davis, and General Counsel Debra K. Inglis.
Initially, the Department received guidance from the State Attorney General's Office concerning the legal challenges to execution protocols in Tennessee and other jurisdictions and possible areas of inquiry for the Committee. The Committee reviewed the opinion issued by the Tennessee Supreme Court in Abdur'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn.2005), cert., denied, [___ U.S. ____] 126 S.Ct. 2288 [164 L.Ed.2d 813] (2006), as well as the opinions filed by the Chancey Court for Davidson County and the Tennessee Court of Appeals in the same proceeding. It reviewed the complaint filed in Harbison v. Little, No. 3:06-1206 (M.D.Tenn.) concerning

Tennessee's previous protocol. It also reviewed court opinions and other documents filed in cases challenging execution from other jurisdictions.
The Department identified several areas warranting particular focus in the review process. As to lethal injection, these areas included the selection and amounts of the chemicals to be used, requirements pertaining to the procurement and storage of the lethal injection chemicals, the qualifications and training required of the members of the IV team and the executioner, the method to be used for obtaining venous access when the IV team cannot established peripheral venous access, and documentation requirements pertaining to the administration of the lethal chemicals. As to electrocution, the committee considered whether any modifications should be made to the settings on the electric chair control panel, as well as the requirements for regular testing and maintenance of the equipment.
The Committee reviewed the Department's previous protocol and execution manual. Ricky Bell, Warden of the Riverbend Maximum Security Institution, answered questions from other Committee members about the process used in the state's two recent lethal injection executions as well as questions about the electrocution process. The Committee also met with other participants in Tennessee's two lethal injection executions about specific areas.
The Committee consulted a number of other jurisdictions for information on their protocols, the development of their protocols, and their experiences in implementing those protocols. While some jurisdictions were unwilling to share information due to legal requirements for maintaining confidentiality, the Committee was able to obtain information from several jurisdictions. Particularly helpful was information obtained by the Committee during two onsite meetings with Virginia Department of Corrections staff in Greensville, Virginia and with Federal Bureau of Prisons staff at U.S.P. Terre Haute.
At the Greensville Correctional Facility, the Deputy Warden, other institutional staff, and representatives of the Virginia Attorney General's Office answered questions about all aspects of Virginia's lethal injection process and provided a tour of the capital punishment area.
At U.S.P. Terre Haute, the Federal Bureau of Prison's execution team gave a comprehensive presentation to the Committee and representatives of several other jurisdictions. The presentation included a discussion of lessons learned when carrying out lethal injection executions in several high profile cases. The federal execution team demonstrated its procedure while conducting training exercises.
The Committee consulted with two anesthesiologists concerning lethal injection and an electrical engineer 917 concerning electrocution. The Committee also consulted *917 with the physician who is present at Tennessee's
executions to pronounce death and to perform a cut-down procedure, if necessary.
The Committee reviewed the Final Report with Findings and Recommendations issued by Florida's Governor's Commission on Administration of Lethal Injection on March 1, 2007.
The Department also held a public hearing on April 5, 2007. Representatives of the Tennessee Medical Association, Tennessee Bar Association, University of Tennessee College of Medicine, Southeastern Pharmacology Society, the Federal Public Defender for the Middle District of Tennessee, The Federal Defender Services of Eastern Tennessee, Inc., and specific members of the defense bar were invited to provide input on how to best ensure that the Department's execution protocol provides constitutional and appropriate executions. Two attorneys made presentations at the hearing, and comments were also taken from other attendees. A transcript of hearing is attached.
The Committee met on the following dates:

February 6, 2007 February 15, 2007 February 20, 2007 February 22, 2007

March 5, 2007 March 8, 2007 March 14, 2007 March 16, 2007 March 19, 2007

April 2, 2007 April 5, 2007 April 10, 2007 April 12, 2007 April 16-17, 2007

March 23, 2007 March 28, 2007 March 30, 2007

April 19, 2007 April 25, 2007

Selected Areas of Inquiry0907Lethal Injection

The following issues relating to lethal injection were among those given particular attention in researching best practices:

A. Lethal Injection Chemical Selection

The most significant issue to the Department addressed was the selection of the chemicals and dosage to be used in lethal injection executions in Tennessee. After considerable research and consultation with medical experts, the Department has retained a three-chemical protocol.

The following is a summary of the three best alternatives considered by the Department, and its findings regarding the advantages and disadvantages of each.

1. Three Chemical Protocol (5 Grams of Sodium Thiopental, 100 Mg of Pancuronium Bromide, and 200 mEq. of Potassium Chloride)

At least 30 jurisdictions, including the Federal Bureau of Prisons and Tennessee under its previous protocol, have a three-chemical lethal injection protocol consisting of sodium thiopental, pancuronium bromide, and potassium chloride in varying amounts. Sodium thiopental is a barbiturate that rapidly induces general anesthesia. Five grams of sodium thiopental given intravenously is, by itself, lethal. Pancuronium bromide is a neuromuscular blocking agent that induces paralysis and causes breathing to cease. An intravenous injection of 100 Mg of Pancuronium Bromide is also lethal. Potassium chloride is a salt that interferes with the electrical signaling essential to normal heart function. A 200 mEq dose administered intravenously causes cardiac arrest and rapid death.

The issues raised on behalf of death row inmates have generally focused on the potential for error in the administration of the three-chemical protocol. It is generally agreed that if administered correctly and without error the protocol would result in a relatively painless death. In an 8th Amendment challenge to the three-chemical protocol brought by a Tennessee inmate under sentence of death, the Tennessee Court of Appeals summarized the inmate's position as follows:

The evidence is essentially uncontradicted that the injection of either Pavulon [pancuronium

918

bromide] or potassium *918 chloride, by themselves, in the dosages required by Tennessee's

three-drug protocol would cause excruciating pain. Without sedation, the injection of potassium

chloride would, in the words of the anesthesiologist testifying on Mr. Abdur'Rahman's behalf,

"deliver the maximum amount of pain the veins can deliver." Similarly, persons receiving a

massive dose of Pavulon without sedation would be conscious while they asphyxiated. Thus, the

ultimate determination regarding whether Tennessee's three-drug protocol causes unnecessary

physical suffering depends on the efficacy of the injection of Sodium Pentothal [sodium thiopental]

that precedes the injections of Pavulon and potassium chloride.

Abdur'Rahman v. Bredesen, 2004 WL 2246227, *16 (Tenn.App.2004), aff'd, Abdur'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn.2005). After reviewing the expert testimony presented in that case as well as the conclusions reached by courts in other jurisdictions, the Court concluded:

In light of the evidence that the Sodium Pentothal is administered before the Pavulon and the potassium chloride, and that it remains effective until death occurs, we agree with the trial court's conclusion that Mr. Abdur'Rahman failed to prove that the injection of chemicals in accordance with Tennessee's three-drug protocol would cause unnecessary physical pain or psychological suffering.

Id. at 16.

Consistent with the findings of the Court in Abdur'Rahman, the experts consulted by the Committee all agreed that the intravenous administration of 5 grams of sodium thiopental in a person would be lethal, that it would render the person unconscious within a few seconds, and that its anesthetic effect would continue until death. Accordingly, the Department found that the three chemical protocol, when administered appropriately, will result in a humane death.
Several factors weigh in favor of retaining the three-chemical protocol. Tennessee's experience in implementing the protocol has been positive. Tennessee's protocol has been upheld by all courts that have ruled upon its constitutionality. In addition, the three-chemical protocol has been used in almost all of the lethal injection executions that have taken place in this country, allowing Tennessee to draw upon the considerable experience of other jurisdictions in implementing the protocol.
Pancuronium bromide is included in the protocol because it speeds the death process, prevents involuntary muscular movement that may interfere with the proper functioning of the IV equipment, and contributes to the dignity of the death process.
The Department also took into consideration several factors that weighed against retaining the three-chemical protocol. The procedure is the most complicated of the three protocols, and there is a remote chance of an error in implementation that may cause the inmate to incur brief pain. Finally, the three-chemical protocol presents the greatest difficulty in accounting for the lethal injection chemicals, particularly because pancuronium bromide requires refrigeration.
2. Two-Chemical Protocol (Sodium Thiopental and Potassium Chloride)
The Department considered a two-chemical protocol consisting of sodium thiopental and potassium chloride. This protocol has an advantage over the three-chemical protocol in that it eliminates the use of pancuronium bromide. 919 As a result, it would address the allegation that, although *919 appearing unconscious, a condemned inmate might in fact be conscious and experience pain from the administration of potassium chloride. It would also likely result in a somewhat faster death than a one-chemical protocol. On the other hand, the administration of potassium chloride without a preceding dose of pancuronium bromide would typically result in involuntary movement which might be misinterpreted as a seizure or an indication of consciousness. This two-chemical protocol has also not been used by any other jurisdiction to carry out an execution.
3. One-Chemical Protocol (Sodium Thiopental)
Finally, the Department considered the merits of a one-chemical protocol consisting of 5 grams of sodium thiopental.
The primary advantage of the one-chemical protocol is that it is much simpler to administer and provides an even lower risk of error in its administration. As compared to the two- and three-chemical protocols, it has the advantage of eliminating both of the chemicals which, if injected into a conscious person, would cause pain. It is similar to the process used in animal euthanasia. Using one chemical that does not require refrigeration greatly simplifies the process of maintaining and accounting for the lethal injection chemicals.
The one-chemical protocol has several disadvantages. First, the two- and three-chemical protocols would likely result in a more rapid death. Second, the effect and required dosage of sodium thiopental would be less predictable and more variable when it is used as the sole mechanism for producing death than it would when used in combination with pancuronium bromide and potassium chloride. Third, to date no other state has used a similar protocol, and thus in the context of lethal injection executions there is no experience upon which Tennessee can draw.
B. Lethal Injection Chemical Procurement and Storage
The Department's previous protocol provided assurance that the lethal injection chemicals would be procured and stored in such a way as to further minimize the possibility of contamination, dilution, or adulteration or loss of the chemicals. An examination of best practices from other jurisdictions, however, suggests that accountability

would be enhanced through improved documentation of these processes. Accordingly, the protocol includes enhanced documentation requirements with regard to the procurement and storage of lethal injection chemicals.
C. IV Team Qualifications and Training
A review of best practices from other jurisdictions reveals that persons responsible for establishing IV access should have quality training in IV therapy, and preferably possess certification or licensure in a health-related field that includes establishing IV access within its scope of practice. Although Tennessee has always used Emergency Medical Technicians with IV certification or certified paramedics to establish IV access, the previous Execution Manual did not include such a requirement. The updated manual expressly requires that persons responsible for establishing IV access have such training and certification.
Best practices in other jurisdictions require that, in addition to the continuing education required to maintain their certification and licensure, IV team members should also regularly practice establishing IV access during execution training exercises. This practice has always been in place in Tennessee, but not in writing. The updated manual expressly requires it.
920 *920 D. Use of Cut-Down Procedure
The Department also considered the use of a cut-down procedure and various alternative procedures with several experts. The Department determined that cut-down procedures are not particularly difficult for physicians to perform, especially for those who have prior experience performing the procedure. Accordingly, it has been retained as an option if needed to gain IV access.
E. Executioner Qualifications and Training
Although not all jurisdictions require the executioner to have training in IV therapy, such training prepares the executioner to recognize when IV access is not adequately established, allowing him to take appropriate corrective action. The long-standing but unwritten practice in Tennessee has always been to use an executioner trained in IV therapy. The Department considers this to be an important requirement and has expressly incorporated it into the protocol.
F. Chemical Administration Documentation
An examination of best practices from other jurisdictions suggested that post-execution review of lethal injection executions is facilitated by contemporaneous documentation of the administration of the lethal injection chemicals. An express requirement for contemporaneous documentation by a member of the IV team has been incorporated into the updated manual.
Selected Areas of Inquiry0907Electrocution
The following issues relating to electrocution were among those given particular attention in researching best practices:
A. History of Tennessee's Electric Chair
In 1989, Tennessee's electric chair was refurbished and a new electrocution system was installed by Fred A. Leuchter Associates, Inc. Later the system underwent substantial modifications at the recommendation of Dr. Michael Morse, PhD, and Jay Weichert, a professional electrical engineer who has consulted with a number of states on electrocution protocols. Through subsequent years Mr. Weichert has consulted with the Tennessee Department of Correction concerning the operation of its electrocution system and has tested and maintained the system in working order.
The Committee met with Mr. Weichert at Riverbend Maximum Security Institution on March 5, 2007. He explained in detail how the system operates, the recommended settings, and how to respond to various contingencies. His recommendations have been incorporated into the electrocution manual.
B. Electrocution Equipment Control Settings

Expert input received by the Department indicates that the electrocution equipment should be set to render 1750 volts at 7 amps, cycled on for 20 seconds, off for 20 seconds, and on for an additional 15 seconds. These settings have been retained.
C. Electrocution Equipment Maintenance and Testing
Although not required by the state's previous written protocol, the Department has tested its electrocution system at least quarterly and has conducted regular maintenance as required. The Department considers this schedule 921 to be adequate and has expressly incorporated it into the updated *921 manual. The updated manual also expressly requires documentation of testing, maintenance, and modifications in a permanent ledger.
Selected References
Hamilton v. Jones, 472 F.3d 814 (10th Cir.2007)
Taylor v. Crawford, 457 F.3d 902 (8th Cir.2006)
Brown v. Beck, 445 F.3d 752 (4th Cir. 2006), pet. for cert filed, (April 20, 2006) (No. 05-10482)
Morales v. Hickman, 438 F.3d 926 (9th Cir.2006), cert. denied, [___ U.S.____] 126 S.Ct. 1314, 163 L.Ed.2d 1148 (2006)
Morales v. Tilton, 465 F.Supp.2d 972 (N.D.Cal.2006)
Evans v. Saar, 412 F.Supp.2d 519 (D.Md. 2006)
Reid v. Johnson, 333 F.Supp.2d 543 (E.D.Va.2004)
Blaze [Baze] v. Rees, [217] S.W.3d [207], 2006 WL 3386544 (Ky.2006)
Abdur'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn.2005) cert. denied, [___ U.S. ____] 126 S.Ct. 2286 [2288], 164 L.Ed.2d 813 (2006)
Coe v. Sundquist, No. M2000-00897-SC-R9-CV (Tenn.) (April 19, 2000)
State v. Webb, 252 Conn. 128, 750 A.2d 448 (2000)
Substantive Challenges to Propriety of Execution by Lethal Injection in State Capital Proceedings, 21 A.L.R. 6th 1 (2007)
Denno, Deborah, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, 63 Ohio St. L.J. 63 (2002)
Appendix
A. Executive Order No. 43
B. Florida Governor's Commission on Administration of Lethal Injection
C. Transcript of April 5, 2007 Public Hearing
R. GUY COLE, JR., Circuit Judge, dissenting.
For the first time in a death-penalty case, to my knowledge, this Court vacates a temporary restraining order an 0907 order that the Court is incompetent to review because it is not appealable 0907and in so doing clears the way for Philip Workman's execution on May 9, 2007.
Just as troubling, despite the extensive and detailed allegations Workman raises tending to show that Tennessee's new lethal-injection protocol will subject him to pain and suffering in violation of the Eighth Amendment; despite that Workman supports his allegations with testimony from physicians familiar with lethalinjection protocols, medical studies, and evidence from recent botched executions; despite the statements from

federal courts across the United States expressing deep skepticism with similar lethal-injection protocols adopted by other states; and despite the deference that an appellate court owes to the judgment of a district court, the majority concludes that Workman's concerns are insufficiently compelling to warrant a brief five-day preservation of the status quo to determine whether his claims have merit.
In the end, I simply cannot conclude that in the face of Workman's disturbing allegations, the State's legitimate interest in "finality" and giving effect to its criminal judgments will be irretrievably impaired by the TRO here. Indeed, the State's interest in executing Workman "will, at worst, simply be delayed but not denied" if this Court 922 denies the State's *922 motion to vacate the TRO. Skillern v. Procunier, 469 U.S. 1182, 1185, 105 S.Ct. 945, 83 L.Ed.2d 956 (1985) (Brennan, J. dissenting). And if Workman is ultimately successful in proving the constitutional infirmity of Tennessee's new lethal-injection protocol, "then [the TRO] will have prevented a harm the legality of which will be open to serious question under federal law." Id. Accordingly, I respectfully dissent.
I. Appealability
The majority's opinion rests on a profound jurisdictional defect: There is no appealable order before this Court. The district court issued a temporary restraining order, not a preliminary injunction. It is well established that "[a]n order granting, denying, or dissolving a temporary restraining order is generally not appealable." Moore's Federal Practice § 65.41 (3d ed.2005). TRO's have the modest purpose of preserving the status quo to give the court time to determine whether a preliminary injunction should issue. First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 650 (6th Cir.1993). The short duration of a TRO no 0907 more than 10 days under Rule 65(b) is 0907 one of its chief distinctions from a preliminary injunction. Indeed, as this Court recently acknowledged, "[t]he rationale for this rule [(i.e., the non-appealability of TRO's)] is that TRO's are of short duration and usually terminate with a prompt ruling on a preliminary injunction, from which the losing party has an immediate right of appeal." Ne. Ohio Coal. for the Homeless v. Blackwell, 467 F.3d 999, 1005 (6th Cir.2006).
The district court's TRO cannot be magically transformed into a preliminary injunction, which is an appealable order, even though the State and a majority of this Court may wish it. This makes the majority's heavy reliance on the unpublished decision in Alley v. Little, 181 Fed. Appx. 509 (6th Cir.2006)0907which involved a preliminary injunction0907entirely inapposite. True, in certain situations not applicable here, courts will treat TRO's as appealable preliminary injunctions. For instance, if a TRO is extended beyond the 10-day limit provided for in Rule 65(b), then it may be treated as a preliminary injunction. See, e.g., Nordin v. Nutri/Sys., Inc., 897 F.2d 339 (8th Cir.1990) (treating TRO as preliminary injunction because it had no expiration date and exceeded Rule 65(b)'s 10-day limit); Chicago United Indus., Ltd. v. City of Chicago, 445 F.3d 940 (7th Cir.2006) (treating TRO as preliminary injunction because 20 days since its issuance had elapsed). This is not an issue here because the district court's order sets a preliminary-injunction hearing date of May 14, 2007, and specifies that the TRO will dissolve on that date.
In addition, courts sometimes say that even though an order is styled a TRO, it is in substance a preliminary injunction. Ne. Ohio Coal. for the Homeless, 467 F.3d at 1005. The State contends that this is precisely the situation here because the TRO will prevent the State from carrying out its May 9 scheduled execution of Workman, and therefore cause "serious, perhaps irreparable" harm to the State's interest in giving effect to its criminal judgments. (Defs.' Motion To Vacate Temporary Restraining Order at 5 (quoting Ne. Ohio Coal. for the Homeless, 467 F.3d at 1005)). But that conclusion is illogical. The State's interest is in no way irreparably harmed, or even seriously undermined. The TRO here does not interfere with the State's conviction of Workman; it does not interfere with the State's ultimate imposition of the death sentence; and it does not indefinitely 923 preclude the State from executing Workman. The TRO does no more than prohibit Workman's execution on *923 May 9, so that the district court may determine a 0907 mere five days later 0907whether a preliminary injunction should issue. I cannot conclude that the State's interest 0907 whether described as avoiding delay or achieving finality is 0907 so compelling as to necessitate treating what is manifestly a TRO as a preliminary injunction. Indeed, such a conclusion cannot be right for two reasons.
First, as a legal matter, the State's contention provides grounds for converting every TRO into a preliminary injunction, thereby eviscerating the distinctions between these two procedural devices. Parties subjected to TRO's invariably have an interest in proceeding on schedule with whatever activity they intended to undertake prior to being restrained. The essence of a TRO is to preserve the status quo; by definition, then, its purpose is to

prevent from happening an event that would otherwise happen. If an interest in avoiding any delay, no matter how brief, is a legitimate consideration in determining whether a TRO is substantively a preliminary injunction, then TRO's could always be characterized as preliminary injunctions. This is exactly the majority's mistake: in its view, any TRO that prevents an act from taking place as scheduled "effectively operates" as a preliminary injunction and can therefore be reviewed.
Second, as a practical matter, the State's interest in "finality" is simply not the type of interest that can be irreparably or even seriously harmed by the one-week delay imposed by the district court's TRO. Although the State's interest in giving effect to Workman's death sentence is certainly recognized to be a strong one under applicable case law, it is not so strong as to amount to an inviolable interest in executing Workman on May 9. As described above, the TRO does no more than give the district court five additional days in which to decide whether a preliminary injunction should issue. And if the district court denies the preliminary injunction, the State can hardly complain that the minimal delay entailed in the issuance of the TRO put it in a materially worse position. The State will be free to proceed with Workman's execution and, under Tennessee law, it will not be required to take any action to do so, such as applying to the state supreme court for a new death warrant. The Tennessee Supreme Court will automatically set a new execution date, which could be fixed as little as seven days from the date of the court's new execution order. Tenn. Sup.Ct. R. 12.4(E). If the district court grants Workman's motion for a preliminary injunction, that order will be immediately appealable to this Court, and nothing would stand in the way of the State requesting expedited review of its appeal.
Because I believe that there is no doubt that the district court issued a TRO and not a preliminary injunction, I would deny the State's motion for lack of jurisdiction.
II. Standard of Review: Abuse of Discretion
"The district court's decision to grant a temporary restraining order, when appealable, is reviewed by this Court for abuse of discretion." Ne. Ohio Coalition for the Homeless, 467 F.3d at 1009 . This Court has stated many times that the abuse-of-discretion standard is "highly deferential" to the judgment of the district court. See, e.g., United States v. Owens, 426 F.3d 800, 805 (6th Cir.2006); Smith v. Botsford Gen. Hosp., 419 F.3d 513, 516 (6th Cir.2005). Indeed, "[w]e will find an abuse of discretion only when we have a definite and firm conviction that the trial court committed a clear error of judgment." Mitchell v. Boelcke, 440 F.3d 924 300, 303 (6th Cir.2006). Thus, so long as the district court acted *924 within its sound discretion, we may not reverse its judgment even if we would have decided the matter differently. EEOC v. Ky. State Police Dep't, 80 F.3d 1086, 1100 (6th Cir.1996).
Whatever else may be said about the majority's review of the district court's order, it is not for an abuse of discretion. Workman put before the district court an impressive record, particularly when considering that he was only at the TRO stage, not the preliminary-injunction stage. As discussed in more detail below, Workman filed an 82-page complaint detailing extensive allegations with respect to the constitutional infirmity of Tennessee's Revised Protocol. He further filed a 55-page memorandum in support of his motion for a TRO, supported by 48 exhibits, including, among other things, the Revised Protocol, affidavit testimony from two physicians familiar with lethal-injection protocols and their inherent risks, a recent medical study critical of lethal injection, and execution logs from two botched executions. Besides the record, the district court had before it something that this Court has not had the benefit of, namely, the parties themselves. Even though it was operating under difficult time constraints, the district court heard oral argument from the parties and was able to test their respective positions. The transcript of the oral argument shows that the district judge was engaged with the difficult questions presented in Workman's motion and thoughtful in his assessment. (Tr. of Dist. Ct. Proceedings, Motion for TRO, May 4, 2007.)
As discussed in more detail below, I simply cannot say that the district court abused its discretion in issuing the TRO. More importantly, the clear import of the majority's holding is that virtually no defendant in Workman's shoes0907facing an imminent execution under a lethal-injunction protocol that may be unconstitutional 0907can make a sufficient showing to satisfy this Court that a brief five-day delay is warranted to determine whether a preliminary injunction should issue. The majority sets the bar extraordinarily high, and unnecessarily so given the limited nature of a TRO.

III. The Four Traditional TRO Factors
Each of the four traditional factors for equitable relief weighs in Workman's favor. The district judge was well within his discretion to so conclude.
1. Success on the Merits
The Eighth Amendment bars executions that "involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), or that "involve torture or a lingering death," In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890). Whether a particular execution procedure will inflict unnecessary pain is fundamentally an inquiry regarding whether the inmate is "subject to an unnecessary risk of unconstitutional pain or suffering." Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir.2004) (emphasis added). Workman has shown the likelihood of that risk here.
a. Risk of Unnecessary Pain
There is no dispute that the drugs used to execute Tennessee inmates can inflict excruciating pain if not properly administered. Yet Tennessee's Revised Protocol fails to provide for properly credentialed personnel to ensure that the drugs are properly administered.
But grave problems arise even before the drugs enter the inmate. For example, if the EMT cannot access the inmate's vein0907something particularly relevant here because of Workman's past intravenous drug use 0907the 925 Revised Protocol instructs *925 that a doctor will conduct what is known as a "cut-down procedure." (Workman's Mem. In Support of Motion for TRO, Ex. 1, at 41, 67.) As Columbia University anesthesiologist Dr. Mark Heath explains, this is "an outdated method of achieving venous access for the administration of anesthetic drugs"; it has been "virtually completely supplanted by the `percutaneous' technique," which is "less invasive, less painful, less mutilating, faster, safer, and less expensive." (Id., Ex. 23, (Heath Decl. at 22).) Using the cut-down method "would defy contemporary medical standards and would be in violation of any modern standard of decency." (Id.) Tennessee's adherence to this outdated method "would represent the gratuitous infliction of pain and mutilation to the condemned prisoner." (Id. (emphasis added).) This explains why many states have abandoned this procedure for executions. (Id.)
Once a vein is accessed0907perhaps through this unnecessary, mutilating cut-down procedure 0907the first of the three drugs, sodium thiopental, is provided to anesthetize the inmate. Properly providing this anesthetic is, of course, crucial to ensure lack of consciousness; everyone recognizes that the next two drugs would otherwise inflict unbearable pain.
But there is a risk that Workman will be conscious. Sodium thiopental is an ultrashort-acting anesthetic that is extremely sensitive to errors in administration. (Id. 14-15.) Thus, if the intended amount of sodium thiopental fails to reach the inmate's brain, the duration of narcosis will be only brief and the inmate will reawaken during the execution process. (Id.) Yet the Revised Protocol does not require medically trained personnel to supervise or assist in the medical tasks necessary to prepare for the execution or during the execution. These critical tasks include mixing the sodium-thiopental solution; setting up the IV line and associated equipment to ensure fluids do not leak and are not misdirected (not an immaterial possibility considering that IV-line extensions extend into another room0907something that would not be permitted in a medical setting) (Id. 16); finding a usable vein and properly inserting the IV line in the proper direction in the vein; and avoiding the risk that the inmate's vein will rupture and the drugs will flow into the surrounding tissue. (Id. 17.) The President of the American Society of Anesthesiologists, writing about lethal injection, recently stated that "the only way to assure [a proper level of anesthesia] would be to have an anesthesiologist prepare and administer the drugs, carefully observe the inmate and all pertinent monitors, and finally to integrate all this information." (Id. 19 (quoting Orin F. Guidry, M.D., Message from the President. Observations Regarding Lethal Injection (June 30, 2006)).) There is no evidence that anyone on the Tennessee injection team has any training in administering anesthesia, or, if there is training, what that training might be. (Id. 20.)
Most disturbingly, the Revised Protocol makes no mention of the need for effective monitoring of the inmate's condition or whether he is anesthetized and unconscious after the IV lines are inserted. (Id.) No medical

personnel are permitted to be in the execution chamber during the administration of the drugs. (Id. 20.) In other words, there is no way to determine if something went wrong and the inmate is awake. Monitoring consciousness is a regular part of the standard of care in many states for euthanizing dogs and cats. (Id.) It should also be the standard for inmates.
In light of the possibility that the sodium thiopental will be improperly administered, and the inmate therefore will 926 be *926 improperly anesthetized, it is critical that execution personnel be able to ascertain if that occurs. But the
second drug, pancuronium bromide, eliminates this possibility: pancuronium is a neuromuscular blocking agent that paralyzes the inmate's muscles. This paralytic effect is so complete that even an anesthesiologist in a clinical setting must vigilantly monitor diagnostic indicators to assess the anesthetic effect. (Id. 10-11.) Because the drug does not affect the brain or nerves themselves, however, an unanesthetized patient remains completely conscious, and suffers slow suffocation and excruciating pain from the third drug (potassium chloride), all while appearing to be in a peaceful sleep. (See id. 11.) For this very reason, Tennessee in 2001 declared the use of pancuronium bromide or any other neuromuscular blocking agent on non-livestock animals inhumane and illegal. See Tenn.Code Ann. § 44-17-303(c); XX-XX-XXX(j) (providing criminal sanctions for using any substance that acts as a neuromuscular blocking agent when euthanizing non-livestock animals). Thus, Tennessee protects dogs and cats from the risk of excruciating pain in execution, but not death-row inmates.
In this case, however, Tennessee contends that pancuronium bromide serves useful purposes: it speeds the death process, prevents involuntary muscular movement that may interfere with the functioning of the IV equipment, and contributes to the dignity of the death process. (See Workman's Mem. In Support of Motion for TRO, Ex. 7 (Tennessee Report on the Administration of Death Sentences at 7).) In this context, these purposes are not so noble. First, although speeding the death process is generally a good idea, that is not the case where a slower death would more likely be painless. The problem arises when the inmate is conscious yet dying a torturous death, unable to scream out to alert anyone that there is a problem. That death may ultimately be quicker (because of the pancuronium bromide), but it will not satisfy any minimal constitutional standard. Second, it would also be expedient if any muscle spasms did not interfere with the IV equipment; but, again, whatever inconvenience that might cause pales in comparison to the torturous death the inmate might otherwise suffer. Finally, I assume whatever "dignity" pancuronium bromide adds to the death process comes from the perspective of the witnesses to the death0907the execution certainly would look like a peaceful death. But where is the dignity when we know that under that peaceful surface could be a person (even if a convicted murderer) writhing in agony? No dignity arises from wilful blindness to possible torture.
The excruciating (yet invisible) pain the final drug, potassium chloride, would cause absent proper anesthesia is not the only troubling aspect of the drug. For example, although the drug's purpose is to cause electrical arrest of the human heart, Dr. Ramsey explains that the dosage provided for in the Revised Protocol is "wholly ineffective" to achieve this purpose. (Workman's Mem. In Support of Motion for TRO, Ex. 18 at 2.) Thus, if an inmate is improperly anesthetized, asphyxiation because of the paralysis caused by the pancuronium bromide kills the inmate while he suffers the painful effects of the potassium chloride.
These risks are unacceptable.
b. Other Courts Recognize this Risk
The risk of pain discussed above is not mere conjecture; substantially similar execution methods in other states have resulted in botched executions, leading those states to suspend the practice. A few months ago in Florida, 927 for example, inmate Angel Diaz appeared not to receive *927 an effective amount of sodium thiopental because the IV lines were improperly seated in his veins. (Workman's Mem. In Support of Motion for TRO, Ex 21 (Florida Commission Report to Governor, at 8-9).) Observers stated that Diaz "looked like he was in a lot of pain," was "gasping for air for 11 minutes," was "grimacing" and "seem[ed] to speak." (Id., Ex. 20 (Second Dose Needed to Kill Inmate, at 1).) Following this execution, Governor Bush ordered all executions stayed while a committee reviewed this execution and the lethal-injection protocols. (Id., Ex. 21, at 2.)
Similar incidents suggesting a lack of proper anesthesia have occurred in California (Id., Ex. 22) (noting that inmate's stomach and chest "heaved more than 30 times," which suggests improper anesthetization); North Carolina (Brown v. Beck, 2006 WL 3914717, 2006 U.S. Dist. LEXIS 60084 (E.D.N.C. April 7, 2006)) (noting

accounts of inmates convulsing, twitching, gagging, and choking); Ohio (Workman's Mem. In Support of Motion for TRO, Ex. 27 (Trouble Finding Inmate's Vein Slows Lethal Injection in Ohio (noting that after chemicals began flowing, inmate sat up several times to say "it's not working" and asked if he could have "something by mouth to end this"; after execution team closed the curtain, witnesses reported cries of pain for five or ten minutes))); Arkansas (Id., Ex. 30 (Stoic Murderer Meets His Fate By Quiet Means (noting that inmate cried out and coughed sporadically after appearing to nod off into unconsciousness))).
In light of these concerns, many of these states have stayed executions pending further review of these procedures. See, e.g., Morales v. Hickman, 415 F.Supp.2d 1037 (N.D.Cal.2006); Nooner v. Norris, No. 06-00110 (E.D. Ark. June 26, 2006). Additionally, the United States Attorney General has agreed to a preliminary injunction for federal inmates challenging the federal lethal-injection protocols as unconstitutional. Roane v. Gonzales, No. 05-2337 (D.D.C. Feb. 16, 2007). As the court in Cooey v. Taft explained, "This Court would be remiss if it did not take note of the evidence [from other states] . . . [that] raises grave concerns about whether a condemned inmate would be sufficiently anesthetized under [this protocol] prior to and while being executed." 430 F.Supp.2d 702, 707 (S.D.Ohio 2006) (vacated on other grounds by Cooey v. Strickland, 479 F.3d 412 (6th Cir. March 2, 2007)).
The majority raises the unremarkable point that no court has yet made a final ruling on the merits that these lethal-injection procedures violate the Eighth Amendment. This is of course not surprising considering that these lethal-injection challenges are in their infancy0907the Supreme Court's decision in Hill v. McDonough, ___ U.S. ____, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), less than a year ago, breathed life into these claims. (See, e.g., David Stout, Justices Open Door to Lethal Injection Challenges, New York Times, June 12, 2006.) But the majority also misses the point that more and more courts have determined that there is a substantial likelihood that these procedures violate the Eighth Amendment. See, e.g., Taylor v. Crawford, 2006 U.S. Dist. LEXIS 51008 (D.Mo.2006) ("Missouri's current lethal injection procedure subjects condemned inmates to an unnecessary risk of unconstitutional pain and suffering. Without appropriate monitoring of the anesthesia, there is a strong argument that these executions might even be torturous."). Ultimately, regardless of the current judicial scorecard on lethal-injection challenges, the compelling evidence remains that Workman is subjected to unnecessary risk of 928 a torturous *928 death and therefore has shown a substantial likelihood of success on the merits.
The majority also states that the Eighth Amendment's concern regarding evolving standards of decency "does not help Workman" because there is a consensus that lethal injection is the most humane method of execution. But everyone knows that this consensus is built entirely on the perception that the process actually is painless and dignified. The challenge here is not to proper, painless lethal injection; the challenge is to the grave risk that this particular lethal-injection procedure causes true suffering0907exactly opposite of what the consensus believes the method achieves.
Additionally, the majority notes that, despite what it sees as overwhelming evidence that lethal injection is indeed as humane as the consensus intends, Tennessee has as 0907 if unprompted 0907taken the affirmative act of reevaluating this apparently impeccable procedure and somehow "refined" it even more. What of course really happened here is that Tennessee recognized that numerous courts across the country were enjoining this procedure on Eighth Amendment grounds because of the real risk of a torturous death. And for that, Tennessee should be applauded. At the present time, however, there is no basis for concluding that Tennessee has sufficiently lessened this risk. Indeed, the evidence suggests the risk remains pronounced.
2. Irreparable Injury
Nobody contests that Workman will suffer irreparable harm if his execution is not stayed. Worse than simply the harm of execution, however, Workman also faces substantial risk of excruciating pain in the process.
3. Harm to Others
Tennessee no doubt has an interest in the finality of justice; under the law, if the execution is constitutional, it should be carried out. But the issue here is the additional harm caused by adding five days to Workman's 25 years on death row; that cannot outweigh the harm to Workman, who may be put to death through a procedure that inflicts so much pain it cannot be used on non-livestock animals.
4. The Public Interest

Lethal injection has become the predominant method of execution in large part because the public perceived it to be the most humane form of execution. But the method 0907perhaps veiled by drug-induced paralysis 0907may be horrific. The public deserves assurances that this is not the case. As the Tennessee Governor has explained, "The administration of the death penalty in a constitutional and appropriate manner is a responsibility of the highest importance." (Workman's Mem. In Support of Motion for TRO, Ex. 3 (Governor's Executive Order No. 43).)
IV. Timeliness
The majority further contends that the district court erred by failing to consider whether Workman's filing of his § 1983 action was timely. As an initial matter, despite the State's and the majority's heavy reliance on the contention that Workman has unreasonably delayed in bringing his § 1983 suit, the State failed to raise this as a defense before the district court. (Tr. of Dist. Ct. Proceedings, Motion for TRO, May 4, 2007.). See Thurman v. Yellow Freight Sys., 97 F.3d 833, 835 (6th Cir.1996) (holding that arguments not raised before the district court are waived). The majority does not contend that Workman was dilatory in challenging the Revised Protocol, nor 929 could it. Once *929 the Revised Protocol was made public on April 30, Workman promptly filed his administrative grievance with the Tennessee Department of Correction on May 2 and, having exhausted his administrative remedies, filed his § 1983 action in the district court on May 4. (See Workman's Mem. In Support of Motion for TRO, Ex. 11.) Instead, the majority determines that Workman unreasonably delayed because he did not file his § 1983 suit promptly after the conclusion of his habeas proceedings, which, in the majority's view, terminated in 2000.
I do not take lightly the Supreme Court's admonition that we must ensure that death-row inmates timely pursue available relief rather than engage in lastminute requests that could have been brought earlier. In many instances, applicable challenges can be lodged sufficiently in advance to avoid stays of already-scheduled executions. In some instances, however, such stays are necessary and proper. This is one of those instances.
To begin, it would have been legally futile for Workman to bring his § 1983 challenge to Tennessee's lethalinjection protocol at the conclusion of his habeas proceedings, assuming that the majority is right that those proceedings terminated in 2000, rather than with subsequent activity in this Court. Until the Supreme Court's May 24, 2004 decision in Nelson v. Campbell, 541 U.S. 637, 645-47, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), the law of this Circuit precluded inmates from challenging lethal-injection protocols through § 1983 actions. See In re Sapp, 118 F.3d 460 (6th Cir.1997); In re Williams, 359 F.3d 811 (6th Cir.2004); see also Cooey v. Strickland, 479 F.3d 412 (6th Cir.2007) (Gilman, J. dissenting) (agreeing with the district court's holding that petitioner was not required to bring his § 1983 method-of-execution challenge prior to Nelson). Thus, had Workman filed his § 1983 complaint when the majority maintains he should have, it presumably would have been dismissed. Moreover, had Workman's § 1983 case been pending on February 1, when Governor Bredesen rescinded the prior protocol, there is a very real possibility that it would have been dismissed at that time. The State moved to dismiss two § 1983 lethal-injection challenges pending in the Tennessee federal courts on the grounds that they were moot, in light of the Governor's Executive Order. See Payne v. Little, No. 06-00825 (M.D.Tenn.); Harbison v. Little, No. 06-1206 (M.D.Tenn.). In Harbison, the State argued that
There is no lethal injection protocol currently in effect; thus, there is nothing to litigate. In light of this, the issues presented by the present action are moot, as there is no actual case or controversy, and this Court lacks jurisdiction under Article III of the United States Constitution.
Harbison, Mem. In Support Of Defendants' Motion To Dismiss (emphasis added). In Payne, the State made the identical argument that because the prior protocol had been rescinded, "[t]here is no lethal injection protocol currently in effect; thus there is nothing to litigate." Payne, Mem. In Support Of Defendants' Motion To Dismiss.
Next, Workman's execution was in no way imminent in 2004, when his § 1983 claims first became cognizable, because he was still litigating his conviction and death sentence and his execution was stayed for a two-year period between September 1, 2004 and October 17, 2006. Workman filed his motion for relief from the district court's judgment denying his habeas petition on August 27, 2004. At the same time, he filed a motion for a stay. 930 The district court granted the stay on September *930 1, 2004, and ordered it to remain in effect until the court

had disposed of Workman's motion for relief from judgment. On September 22, 2004, this Court declined to vacate the stay. Because the district court did not deny Workman's motion for relief from judgment until October 17, 2006, the stay did not expire until that date.
It makes no sense to say that Workman should have filed his § 1983 challenge to the lethal-injection protocol even before he knew whether he would succeed on his pending challenge in the district court to his conviction and sentence, or on his state coram nobis petition. Such a requirement forces inmates, such as Workman, to simultaneously litigate their claims that they are entitled to relief from their convictions and sentences, and that, even if not entitled to relief from their convictions and sentences, they are nonetheless entitled to relief from a state's particular execution methodology. See Cooey, 479 F.3d at 429 (Gilman, J. dissenting). Further, such parallel litigation is inefficient and burdensome for both litigants and the courts. See id. Indeed, there is no point to requiring an inmate to file his § 1983 action to a lethal-injection protocol when success on a challenge to a conviction or sentence will moot the § 1983 case.[1]
Thus, where any § 1983 challenge Workman filed before the Supreme Court's 2004 decision in Nelson would not have been cognizable under the law of this Circuit; where Workman's execution was not imminent because it was stayed for more than two years by the district court; where Workman was actively pursuing relief that, if granted, would have mooted his § 1983 claims; where the Governor rescinded Tennessee's lethal-injection protocol on February 1, 2007 and moved to dismiss pending lethal-injection challenges in the Tennessee federal courts on the grounds that they were moot; and where the actual lethal-injection protocol under which Workman will be executed was not established until April 30, 2007, I simply cannot conclude that Workman unreasonably delayed in bringing his § 1983 action.
Two final points remain. First, the record shows that Workman diligently applied to the Tennessee Supreme Court to vacate his execution date on precisely the grounds about which he now complains, namely, that setting his execution date within just a few days of the establishment of the Revised Protocol would prevent him from challenging the constitutionality of that protocol. (See Workman's Mem. In Support of Motion For TRO, Ex. 4.) The State opposed Workman's motion. (See id., Ex. 5.) In so doing, the State represented to the Tennessee Supreme Court that "the courts could take action later should circumstances warrant staying Workman's execution date." (See id., Ex. 6. (Tenn. Sup.Ct. Order).) Although not tantamount to a waiver of its rights to contest Workman's challenge now, it might reasonably be said that insofar as Workman may be charged with "delay," the State was complicit as well.
Second, the majority and the State urge that the time has come to execute Workman because his conviction is now 25 years old and he has received multiple stays in the past. Of course, neither Congress nor the courts have seen fit to specify limitations on how long death-row inmates may be kept alive prior to their executions, or 931 limitations on the number of stays that a *931 defendant may be entitled to. Thus, I am simply not persuaded that, in and of themselves, Workman's 25 years on death row and his past stays have any bearing on whether the district court properly issued a TRO here. This is not to minimize the interests of the State and the victims in seeing Workman's sentence carried out. But we must remember that while justice should be prompt, "prompt injustice is not the answer." Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1040 n. 43 (5th Cir.1982) (emphasis added); see also Evans v. Muncy, 498 U.S. 927, 930, 111 S.Ct. 309, 112 L.Ed.2d 295 (1990) (Marshall, J., dissenting) (explaining that the state's interest in finality does not permit a court to "look the other way when latearriving evidence upsets its determination that a particular defendant can lawfully be executed").
V. Conclusion
It is unfortunate that the majority chooses to foreclose the limited inquiry 0907 an inquiry that does no more than preserve the status quo for a mere five days0907 that could very well confirm its conclusion that Philip Workman has nothing to fear from Tennessee's new lethal-injection protocol. The majority's reasons for doing so are unconvincing. Whatever harm the State might sustain by the issuance of the TRO if 0907 indeed "harm" it can be called0907 pales next to the damage done to our Constitution by allowing a single defendant to perish under a method of execution that violates his rights. Of course, at this most preliminary of stages we cannot know whether Workman's allegations ultimately will prove meritorious. Our task is only to ascertain whether the allegations he raises are sufficiently disturbing to warrant a brief and temporary halt to his execution. Considering

the record in this case and the deference owed to the district court, I would deny the State's motion to vacate the TRO. Accordingly, I respectfully dissent.
[1] To the extent that the State and the majority argue that the § 1983 statute-of-limitations analysis in this Court's recent divided decision in Cooey applies here, I cannot agree. At a minimum, we should be circumspect about following Cooey where it is not yet a final judgment owing to the pendency of a petition for rehearing en banc.
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