Case 2:05-cv-04173-FJG Document 76 Filed 01/31/2006 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR
vs. LARRY CRAWFORD, et al.,

) ) Plaintiff, ) ) ) ) ) Defendants. )

No. 05-4173-CV-C-FJG

ORDER
I. BACKGROUND Plaintiff filed the instant complaint on June 3, 2005, and an amended complaint was filed on September 12, 2005 (Doc. #36)1. On December 28, 2005, the Court issued an Order denying defendant’s Motion to Dismiss and ruling that the case presented factual issues which would likely be resolved by either a motion for summary judgment or through a hearing (Doc. # 54). On January 3, 2006, the defendants notified the Court that the Supreme Court of Missouri had set plaintiff’s execution date for February 1, 2006. On January 18, 2006, plaintiff filed an Application for a Court Order requesting that the Court issue an Order directing that Taylor not be executed until further order of the Court to be issued within a reasonable time after a hearing on the merits which was scheduled for February 21, 2006. On January 19, 2006, Judge Scott Wright issued an Order staying the execution until the Court could conduct the hearing (Doc. # 62). The

1 Richard Clay was previously granted leave to intervene in this action. On January 30, 2006, the Court orally granted Mr. Clay’s Motion to Dismiss this action as to him without prejudice. Reginald Clemons also had a pending Motion for Leave to Intervene in this action. He has now moved to withdraw from this action.

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same day, defendants appealed Judge Wright’s ruling to the Eighth Circuit. On January 29, 2006, the Eighth Circuit entered an Order reversing and vacating Judge Wright’s January 19, 2006 Order. The Eighth Circuit remanded the case to the Western District and directed that the Court reassign the case to another judge for an immediate hearing. The Eighth Circuit directed that an Order shall be issued no later than 12:00 Noon on Wednesday, February 1, 2006. This case was assigned to this Court on Monday, January 30, 2006. The Court conducted a telephonic hearing on January 3031, 2006 and now addresses the issues which were presented.
In his First Amended Complaint plaintiff seeks a declaratory judgment that Missouri’s method of execution by lethal injection violates the Eighth, Thirteenth and Fourteenth Amendments because it would inflict on him cruel and unusual punishment, would deprive him of life, liberty or property without due process of law and would inflict upon him a badge of slavery, in that the three drug sequence using a procedure whereby the drugs are administered through the femoral artery creates a foreseeable risk of the infliction of gratuitous pain. Plaintiff also argues that the physician’s role in the execution violates medical ethics.
II. EVIDENTIARY HEARING During the telephonic hearing, the Court heard the testimony of the following individuals: Dr. Mark Dershwitz, Dr. Jonathan I. Groner, Dr. Mark Heath and Terry W. Moore, the Director of Adult Institutions for the Missouri Department of Corrections. Mr. Moore testified that when an inmate is executed, the procedure is accomplished through the use of three drugs which are administered by a board
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certified physician. The physician first administers five grams of sodium pentothal, also known as thiopental, which is a substance that produces anesthesia. Thereafter, the physician administers a syringe of saline to flush the IV line. Next, the physician administers pancuronium bromide, also referred to as pancuronium. This drug is a paralytic agent which prevents any involuntary movement of the body. The physician then again administers the saline solution. Finally, the third drug which is administered is potassium chloride, which is a drug which stops the electrical activity of the heart. Mr. Moore testified that the average time to complete administration of the drugs is between two and five minutes and the average time of death from when the drugs are administered until the time of death was between two and five minutes. Dr. Dershwitz testified that if the above outlined protocol is followed, there is no chance that an inmate would experience pain or suffering.
Plaintiff presented the testimony of Dr. Groner. Dr. Groner is a pediatric surgeon. However, he is not an anesthesialogist, nor does he administer anesthesia. Dr. Groner testified that the pancuronium bromide does not have any function in bringing about the death of an inmate, but that the sole affect of this drug is to relax the inmate’s muscles. Additionally, he testified that the potassium chloride also is not necessary because the first drug which is administered, thiopental, is lethal in the amount in which it is given. He also testified that the administration of these drugs through the femoral venous catheter is unnecessary and that the drugs could easily be administered through peripheral veins located in the arms. Dr. Groner testified that he believes there is a significant risk that an inmate would experience pain and suffering under the current
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protocol. Plaintiff also presented the testimony of Dr. Mark Heath. Dr. Heath is a board
certified anesthesiologist. Dr. Heath testified that Missouri is unique in its requirement that the drugs be administered through the femoral vein. He does not believe that it is reasonably necessary and that a safer alternative would be to administer the drugs through a peripheral artery located in the arm. He agreed with the testimony of Dr. Groner that five grams of sodium pentothal would be a lethal dose. However, he stated that the length of time in which death would occur would vary from person to person. On the low end the drug could cause death in one to two minutes or it might take up to twenty minutes. He also agreed with Dr. Groner that there is no need for the use of pancuronium bromide to bring about the death of an inmate. Dr. Heath also testified that he does not believe that the use of potassium chloride is necessary to bring about an inmate’s death. He stated that the administration of this drug is very painful if a person is conscious. He also stated that there are alternative drugs which also stop the heart which are not painful when administered.
III. DISCUSSION A. Missouri’s Means and Method of Execution The Eighth Amendment provides that “cruel and unusual punishment” shall not be inflicted. It prohibits punishments that are “incompatible with the ‘evolving standards of decency that mark the progress of a maturing society.’” Estelle v. Gamble 429 U.S. 97, 102 (1976). As to executions, it prohibits “the unnecessary and wanton infliction of
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pain” as well as methods involving torture or a lingering death. See Gregg v. Georgia, 428 U.S. 153, 173 (1976). “The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947)(emphasis added). Additionally, as the Court noted in Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994), “the risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.”
Plaintiff argues that the sequence of the three chemicals mentioned above (sodium pentothal, pancuronium bromide and potassium chloride) are unnecessary as a means of employing lethal injection and they create a foreseeable risk of inflicting gratuitous pain and suffering. However, based upon the testimony which was presented by the witnesses, the Court does not find that there is a significant risk that the means and method which the Missouri Department of Corrections uses will cause unnecessary pain and suffering. Dr. Dershwitz testified that the dose of sodium pentothal which is administered, 5 grams, has a very long lasting effect. Thus, the likelihood that the inmate will still be conscious when the other drugs are administered is highly unlikely. Other courts who have examined this procedure have also found that it is not cruel and unusual. In Johnston v. Crawford, No. 4-04-CV-1075 CAS, (E.D.Mo. Aug. 26, 2005), the Court stated:
Plaintiff’s evidence is inadequate to demonstrate that Missouri’s execution 5

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protocol would subject him to the unnecessary and wanton infliction of pain, torture or a lingering death. Plaintiff’s evidence suggests only a possibility, rather than a probability, that he may remain conscious and sensate long enough to experience pain during his execution. For instance, in the affidavit of Dr. Heath submitted in support of the TRO motion, Dr. Heath opines that “the failure to properly administer the sodium pentothal” would create an unjustifiable risk that a prisoner will be conscious during the remainder of the execution. But as previously noted the ever-present possibility of human error or accident is insufficient to establish a constitutional violation. Louisiana ex rel. Francis, 329 U.S. at 464; see also Estelle, 429 U.S. at 105; Beardslee, 395 F.3d at 1075.
Furthermore, plaintiff’s evidence does not adequately demonstrate the nature or the duration of the possible pain relative to the likely degree of sedation so as to establish that the quantum of pain would violate Eighth Amendment standards. . . . The record fails to establish any foreseeable probability that the use of the Missouri protocol would result in an execution involving torture or unnecessary pain of unconstitutional magnitude or length.
Id. at pp. 4-5. This conclusion has been reached by other courts that have also
considered challenges to lethal injection protocols. In Beardslee v. Woodford, No. C 04-
5381 JF, 2005 WL 40073 (N.D.Cal. Jan. 7, 2005), aff’d, 395 F.3d 1064 (2005), the
Court stated, “even with protocols under which only two grams of sodium pentothal - as
opposed to the five grams used in California - are to be administered, the likelihood of
such an error occurring ‘is so remote as to be nonexistent.’” Id. at * 3. See also Reid v.
Johnson, 333 F.Supp.2d 543 (E.D.Va. 2004). Therefore, the Court does not find that
the plaintiff has demonstrated that Missouri’s means of accomplishing lethal injection
violate the Eighth Amendment.
Plaintiff also argues that method by which the drugs are administered is also
cruel and unusual in that the drugs are administered through the femoral vein, rather
than through a vein in the inmate’s arm. However, the Court is also not persuaded that
this constitutes cruel and unusual punishment. The testimony was that an injection is
administered to numb the area before the catheter is inserted so that the inmate will
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experience little if any pain. There was testimony that complications can arise with the placement of the catheter and that it might become dislodged or that it is sometimes difficult to locate the femoral vein. However, as noted above, these slim possibilities do not show that the procedure is cruel and unusual.
B. Role of Physician - Violation of Medical Ethics Plaintiff also argues that the defendants will violate his right to due process of law by executing him by using a physician to carry out the essential steps in the execution in violation of the physician’s medical ethics. Other courts have addressed this and found that it does not violate the physician’s code of ethics to participate in an execution. In Abdur ‘Rahman v. Bredesen, No. M2003-01767-COA-R3-CV, 2004 WL 2246227, * 9 (Tenn.Ct.App. Oct. 6, 2004), aff’d, 2005 WL 2615801 (Tenn. Oct. 17, 2005), the Court noted, “the Tennessee Supreme Court noted that ‘no public policy is violated by allowing physicians or anyone else to participate in carrying out a lawful sentence.’” Id. at *9 quoting Coe v. Sundquist, No. M2000-00897-SC-R9-CV (Tenn. Order Apr. 19, 2000). The Court finds that this is likely the way Missouri courts would also rule on the issue. Indeed, if physicians were not involved in supervising and administering the drugs, it is likely that inmates would claim that it was cruel and unusual punishment because Department of Corrections personnel, without any medical training, were administering the drugs. C. Violation of the Thirteenth Amendment Finally, plaintiff claims that the chosen form of lethal injection is a vestige and badge of slavery and therefore violates the Thirteenth Amendment as well as the Eighth and Fourteenth and impinges on the vertical-equity (color and socio-economic status of accused) and the horizontal equity (irrationality of who among the mass of homicide
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defendants gets the death penalty, irrespective of color and socio-economic status).
The Thirteenth Amendment provides that:
Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
(Emphasis added). Defendants argue that the Thirteenth Amendment does not
apply in this case because this case involves neither slavery nor involuntary servitude.
Even if it did, defendants argue that the Amendment specifically makes exception for
instances in which a person is being punished for a crime. In Wendt v. Lynaugh, 841 F.2d 619, 620 (5th Cir. 1988), the Court stated:
The record is clear that Wendt had been duly convicted of a crime and was serving sentence in the Texas prison as punishment for that crime. His situation in precise words is exempted from the application of the Thirteenth Amendment. He is in no position to claim a right under the Thirteenth Amendment. Similarly in Draper v. Rhay, 315 F.2d 193 (9th Cir.), cert. denied, 375 U.S. 915, 84 S.Ct.
214, 11 L.Ed.2d 153 (1963) the Court stated:
Where a person is duly tried, convicted, sentenced and imprisoned for crime in accordance with law, no issue of peonage or involuntary servitude arises. . . . The Thirteenth Amendment has no application where a person is held to answer for a violation of a penal statute.
Id. at. 197 (internal citations omitted).
Additionally, defendants point out that Missouri’s method of execution is used on
all inmates who have been sentenced to death, regardless of their race. In order to
show a violation of the Thirteenth Amendment, defendants argue that plaintiff would
have to show that prisoners of different races were treated differently. This plaintiff has
failed to do. Accordingly, the Court finds that plaintiff has failed to demonstrate a
violation of the Thirteenth Amendment.
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IV. CONCLUSION After considering the evidence and testimony which was presented during the evidentiary hearing, the Court finds that neither the chemicals used by the State of Missouri for lethal injection nor the procedure employed to administer these injections constitutes cruel and unusual punishment. While the plaintiff suggests a different approach to lethal injection, he does not prove that the current method used by Missouri violates the Eighth Amendment to the Constitution. Further the Court is not persuaded that the use of the femoral vein for the administration of the lethal injection violates applicable standards of the Eighth Amendment. The Court also does not find that Missouri physicians who are involved in administering the lethal injections are violating their ethical obligations nor that the procedure is violative of the Thirteenth Amendment. The Court GRANTS the Motion of Reginald Clemons to Withdraw his Motion to Intervene (Doc. # 72).

Date: January 31, 2006 Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR. Fernando J. Gaitan, Jr. United States District Judge

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 Case 2:05-cv-04173-FJG Document 97 Filed 05/02/2006 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR
vs. LARRY CRAWFORD, et al.,

) ) Plaintiff, ) ) ) ) ) Defendants. )

No. 05-4173-CV-W-FJG

ORDER
On May 1, 2006 the Court asked the parties to provide an outline of the discovery which they proposed to conduct. The Court has reviewed the Proposed Initial Discovery List and now issues the following order.
The Eighth Circuit in its April 27, 2006, Order stated that it was remanding the case for the limited purpose of permitting a continuation of the hearing held on January 30-31, 2006. The Court stated that “[w]hile we conclude that some further opportunity for discovery may be warranted, we leave all matters of what further discovery may be warranted to Judge Gaitan. . . ” Taylor v. Crawford, No. 06-1397, 2006 WL 1098173, *4 (8th Cir. Apr. 27, 2006). In reviewing the proposed list of initial discovery it appears that plaintiff is attempting to begin discovery anew. The Court is not inclined to allow this. The Eighth Circuit remanded this case for a continuation of the previous hearing that was begun in January, not for an entirely new hearing. The Court will not allow plaintiff to recall witnesses who have already testified, unless there is new information which the witnesses have to offer that was not previously available.
With regard to the depositions requested, the Court will allow only a limited deposition of Mr. Crawford. The Court sees no need for any other depositions. As to the document requests, the Court will allow the following requests: 1) Any records or documents available which pertain to any of the last six executions carried out by the

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State of Missouri. This would include any execution logs, records, autopsy reports, test results and analyses of post-mortem/toxicology reports. 2) The State shall also provide information regarding what specialized training the physicians and nurses undergo who participate in administration of the drugs and all documents pertaining to any fall back procedures regarding vein access and the three drug sequence.
The parties shall be prepared to discuss with the Court during the 1:30 p.m. conference scheduled for May 2, 2006, a timetable to complete the discovery which the Court has allowed. The parties should note that all discovery is subject to the time limitations imposed by the Eighth Circuit and must be completed within thirty days from the date of the Eighth Circuit’s opinion.

Date: May 2, 2006 Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR. Fernando J. Gaitan, Jr. United States District Judge

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 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR )

)

Plaintiff,

)

vs.

)

)

LARRY CRAWFORD, et al.,

)

)

Defendants.

)

______________________________)

No. 05-4173-CV-W-FJG

MOTION FOR RECONSIDERATION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60
Plaintiff Taylor respectfully asks this Court to reconsider its order of May 2, 2006 (“Order”) severely limiting the scope of discovery in this case. By denying Plaintiff even the opportunity to present argument in favor of allowing most forms of discovery, this Court has acted inconsistently with the unanimous opinion of the Eighth Circuit, and the 9-1 vote of that Court sitting on en banc. Because the Eighth Circuit’s opinion concluded that the previous hearing-- through no fault of this Court-- was infected with due process error, it would be an abuse of discretion to hold a new hearing on remand that does not correct the error found by the appellate court. Plaintiff is fully committed to litigating his case in a timely manner in accordance with the schedule ordered by the Eighth Circuit. But at the same time, Plaintiff is entitled not to be held to the limited body of evidence that the Eighth Circuit found constitutionally inadequate. The Court’s Order all but shuts the 30-day window of discovery that the Eighth Circuit has ruled be open.

I.

THE COURT’S ORDER IS INCONSISTENT WITH THE EIGHTH

CIRCUIT’S OPINION.

The Eighth Circuit’s opinion (“Opinion”) makes clear that the prior hearing before this

Court was constitutionally inadequate as a result of timetable imposed by the appellate court. In

unmistakable language, the Eighth Circuit offered its “mea culpa” for denying Plaintiff the

opportunity to “make the record he felt necessary for the full and fair consideration of the merits

of the case.” Opinion at 6. The panel recognized that it “asked the district court and the parties

to do too much in too little time” and that it was appropriate to “expand or supplement the

record.” Id. It also noted the 9-1 vote of the en banc Court to grant a stay, and on that basis

remanded the case back to this Court for a “continuation of the hearing.” Id. at 7. The appellate

court further found that “some further opportunity for discovery may be warranted” and

committed the choice of discovery to this Court. Id.

The Court’s Order is fundamentally inconsistent with the Eighth Circuit’s opinion. First,

the order bars witnesses who have already testified from testifying further. This ruling cannot be

reconciled with the Eighth Circuit’s holding that the hearing in which those witnesses testified

was constitutionally defective. The Eighth Circuit’s recognition that short-notice hearing

imposed a “burdensome strain” necessitates that Plaintiff should not be held to the affirmative

case and cross-examination that Plaintiff’s counsel was able to prepare on just a few hours

notice. Instead, Plaintiff should be entitled, consistent with the new time frame imposed by the

Eighth Circuit and the normal rules of evidence, to present whatever witnesses and evidence he

believes relevant to support his case. This is not asking for an entirely new hearing, but rather

the opportunity, consistent with the Eighth Circuit’s instructions, to “expand or supplement the

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record” with any additional evidence that may shed light on the legal issues at stake here.1

Under the Eighth Circuit’s order, it is an abuse of discretion to preserve the flawed evidence of

that proceeding rather than allow Plaintiff, who now has adequate time to present his case, to

revisit those issues as appropriate.

Second, the Court’s order does not carry out the Eighth Circuit’s instructions regarding

discovery. The Opinion is extremely clear that additional discovery may be warranted and that

this Court should use its discretion in deciding what discovery is open to the parties. This Court

could not have exercised its discretion soundly by ruling on all the discovery issues before it

before Plaintiff has had any opportunity to argue why its proposed discovery is relevant. For

example, although the Court has stated that it “sees no need for any other depositions” beyond a

limited deposition of Mr. Crawford, Plaintiff has not even had the opportunity to present its

reasons. Indeed, the Court’s order denies access to discovery that the State has agreed to, such as

the deposition of the State’s primary expert, Dr. Dershwitz. Similarly, the Court has limited the

scope of document requests to the past six executions, without allowing argument by Plaintiff as

to relevance of going beyond the State’s chosen scope of discovery. In short, it would be an

abuse of discretion within the terms of the Eighth Circuit’s order to peremptorily cut off critical

avenues of discovery during the very period in which the appellate court has asked this court to

consider Plaintiff’s requests.

II.

THE DISCOVERY DENIED BY THE COURT’S ORDER IS HIGHLY

RELEVANT AND SO CENTRAL TO THE MERITS OF THIS CASE

THAT THE DENIAL VIOLATES DUE PROCESS.

1 The Order’s proviso that witnesses may be recalled to testify regarding “previously unavailable” information is far too narrow to rectify the constitutional flaws of the prior proceeding. For example, although Plaintiff was able to obtain some information in discovery prior to the first hearing, counsel was unable to prepare an effective presentation of that information in light of the “burdensome strain” of timing that hearing imposed.
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If this Court were to consider the merits of Plaintiff’s requests for discovery, it would find them compelling. The State objects to Plaintiff’s requested deposition of John Doe 1, the doctor who assists with executions. This deposition is crucial to determining the merits of Mr. Taylor’s claims. Plaintiff understands that John Doe 1 inserts the catheter into the femoral vein of the inmate to be executed. Part of Plaintiff’s claim is that this unnecessary, painful femoral line procedure itself violates the Eighth Amendment. Femoral vein access is an extremely risky procedure that is rarely used in the medical context except in extraordinary circumstances. It is therefore far from a routine procedure, and it poses, among other problems, serious risk of infection. This risk is particularly troubling given that some inmates scheduled to be executed receive last minute stays that halt an execution after the inmate’s veins have been accessed.2 (Along similar lines, a deposition would be essential in determining what steps are taken by John Doe 1 and the other people involved if there is in fact a last minute stay.)
It is also essential to know the qualifications of the doctor inserting the line. Because femoral lines are rarely used in medicine, many doctors have little or no experience inserting them. Similarly, because complications often arise during femoral line procedures, only doctors performing such procedures with some regularity would be equipped to deal with such complications. Determining John Doe 1’s qualifications and experience in this regard -- which could not be done without deposing him -- is a crucial component of evaluating the State’s use of the femoral line. Additionally, because sodium pentothal only works as an anesthetic if it is properly administered, it is essential to know how the femoral vein is accessed by Missouri. Any errors arising from femoral access could lead to improper administration of the three chemicals. Such errors would therefore not only amount to Eighth Amendment violations in their own right
2 The State of Florida, for instance, had already strapped down Mr. Hill and accessed his veins when he received a last-minute stay halting his execution.
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(due to the painful and humiliating femoral vein access) but also result in improper administration of the chemicals, thus leading to additional Eighth Amendment violations. Only by talking to the person who actually performs this procedure could Plaintiff gather the relevant information on this issue.3
On a related note, it would also be crucial to determine whether John Doe 1 (or any other doctor participating in the procedure) is an anesthesiologist trained to monitor anesthetic depth. As alleged in Plaintiff’s Complaint, if the first chemical, sodium pentothal, fails to anesthetize the inmate properly, he will suffer excruciating pain as a result of the other two chemicals. But only an anesthesiologist is properly trained and qualified to monitor such depths. Deposing John Doe 1 would give Plaintiff the necessary opportunity to determine whether he has the necessary training to monitor anesthetic depths at all and whether his position in the execution room relative to the inmate affords him a proper view to do so.
Just as a deposition of the doctor (John Doe 1) would yield information absolutely central to this case and unobtainable in any other form, so too would depositions of the other John Does (John Does 2-6) yield similarly critical information. The nurse (John Doe 2) might, for instance, mix the chemicals used in the process. Her qualifications and experience are therefore of great significance, as is a detailed account of the exact steps she takes during every execution. Similarly, the “plunger” who actually pushes the syringe (John Doe 3) is a vital person on the execution team whose first hand knowledge of the lethal injection procedures is central to this case. Once again, this person’s experience and qualifications are important, since an unqualified
3 Indeed, because Missouri has failed to provide any published protocol, there exists no way for Plaintiff to access this information, other than by deposition. But even if Missouri’s procedure for accessing the femoral vein were published, a deposition of John Doe 1 would be necessary to see how the procedure actually is performed by the person who performs it. All other information would merely describe how the State says its executions should proceed, but would give no insight into what actually is happening.
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person could administer the chemicals improperly, potentially resulting in any of a number of errors, including a broken syringe. It would also be important to know exactly how John Doe 3 carries out his duties during each execution. And, as for John Doe 4, he is believed to be the only person in the room during the execution. Clearly, he would have knowledge and understanding of how the procedure is actually carried out that nobody else would have and that would not be obtainable from the State in any other way. And any other people involved in the execution procedure (John Does 5-6) would obviously also have firsthand knowledge crucial to this case. Plaintiff therefore asserts that the State’s contention that these depositions would not lead to relevant evidence could not be further from the truth.
The State also contends that providing the identities of the persons involved in carrying out executions will impinge on the security interests of these persons and of the prison, and of the privacy interests of these persons. Plaintiff fully understands that any information revealing or reasonably leading to the discovery of the identity of any or all of these persons will be subject to a protective order crafted by this Court. Plaintiff’s counsel represents that it will abide by the terms of such a protective order. Given that these depositions are central to the Plaintiff’s case and that the State’s security and privacy concerns could easily be protected by a protective order, the State’s objections on this ground do not justify a decision so drastic as denying Plaintiff access to key information upon which this case turns. Accordingly, Plaintiff represents that due to the protective order, disclosure will not hamper the ability of the State to find personnel to carry out its executions.
The State’s entire case turns on the accuracy and credibility of Dr. Dershwitz’s testimony on the effectiveness of the State’s procedures in preventing unconstitutional pain. For this reason, it is essential that Mr. Taylor depose Dr. Dershwitz. The constitutionally inadequate
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hearing did not provide Mr. Taylor with a proper opportunity to cross examination the State’s medical expert. It was impossible for Mr. Taylor’s counsel to prepare for Dershwitz’s nuanced testimony on the several hours’ notice that he received. At a minimum, Dr. Dershwitz must be deposed because his scientific conclusions and the graphs on which they are based have never been publicly challenged, and the assumptions underlying Dr. Dershwitz’s evidence are fundamentally flawed. Even Dr. Dershwitz’s definition of unconsciousness, for example, is inconsistent with how the term is understood in the medical community. In addition, the State itself has already agreed to the deposition of Mr. Dershwitz.
It also is essential that Mr. Taylor receive any records of the State’s past executions dating back to 1989. Dr. Dershwitz has previously made two critical assertions, both of which have been belied in other States by precisely the evidence that Mr. Taylor seeks here. First, Dershwitz has alleged that the inmate will stop breathing within one minute of the administration of thiopental. Second, he has testified that death results within one minute of the administration of potassium chloride. We now know these allegations to be incorrect. See, e.g., Morales v. Hickman, No. C-06-219-JF, --F.Supp.2d--, 2006 WL 335427, at *8 (N.D. Cal. Feb. 14, 2006), aff’d, No. 06-99002, --F.3d--, 2006 WL 391604 (9th Cir. Feb. 19, 2006) (per curiam), cert. denied, No. 05-9291, 2006 WL 386765 (U.S. Feb. 20, 2006); Brown v. Beck, No. 5:06-CT-3018H (April 7, 2006, E.D. N. Car.). There are reasons to believe that the same evidence is available in Missouri. For example, the complications in Leroy Hunter’s execution by lethal injection, which took place in 2000, are notorious, but the State has refused to provide any documentation regarding lethal injections dating back even six years to that execution. Moreover, it is critical to discover the changes made in the lethal injection procedures (in terms of dosage, saline flushes, ordering of the chemicals, IV access, length of tubing, time between femoral placement
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and administration of chemicals, etc.) in order to determine the types of complications inherent in the current procedure and whether the State is acting with the necessary level of deliberate care. This in no fishing expedition. Mr. Taylor’s document requests are narrowly tailored to provide critical information through a narrow set of documents pertaining only to 66 executions.
At a minimum, Mr. Taylor requests that the Court reconsider granting his document requests for executions dating back to January 1, 1995. On information and belief, the State stopped using the Leuchter machine for administering lethal injections around this time. For this reason, the decisions made in 1995 and going forward are especially relevant to the procedures used today. Any changes in the procedures and the executions that precipitated those changes are of course relevant as they shed light on the problems that arose in prior executions and the degree to which the State’s actions were responsive to those known inadequacies in its procedures.
*** For the foregoing reasons, Plaintiff asks that this Court reconsider its Order. If the Court grants the motion, Plaintiff requests that the Court schedule a conference on Wednesday, May 3. 2006 to determine the proper scope of discovery. In the event that the Court will not reconsider its Order, Plaintiff will seek immediate review of the order in the Eighth Circuit under that court’s retained appellate jurisdiction.
Respectfully Submitted,
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/s/ JOHN WILLIAM SIMON
JOHN WILLIAM SIMON
2683 South Big Bend Blvd, # 12 200 S.E. Douglas, Suite 200 St. Louis, Missouri 63143-2100 (314) 645-1776 FAX (314) 645-2125

/s DONALD B. VERRILLI, JR.
DONALD B. VERRILLI, JR. MATTHEW S. HELLMAN ERIC BERGER
JENNER & BLOCK LLP 601 13th Street NW Washington, DC 20005 (202) 639-6000 FAX: (202) 661-4983

May 2, 2006

Counsel for Plaintiff

9

Certificate of Service
I hereby certify a true and correct copy of the foregoing was forwarded for transmission
via Electronic Case Filing (ECF) this 2nd day of May, 2006, to the offices of:
Michael Pritchett, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, Missouri 65102
/s/ John William Simon Attorney for Plaintiff Taylor

 
 Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR
vs. LARRY CRAWFORD, et al.,

) ) Plaintiff, ) ) ) ) ) Defendants. )

No. 05-4173-CV-C-FJG

ORDER
I. BACKGROUND Plaintiff filed his Complaint on June 3, 2005, and an amended complaint on September 12, 2005 (Doc. #36)1. In his First Amended Complaint plaintiff sought a declaratory judgment that Missouri’s method of execution by lethal injection violates the Eighth, Thirteenth and Fourteenth Amendments because it would inflict on him cruel and unusual punishment, would deprive him of life, liberty or property without due process of law and would inflict upon him a badge of slavery, in that the three drug sequence using a procedure whereby the drugs are administered through the femoral artery creates a foreseeable risk of the infliction of gratuitous pain. Plaintiff also argued that the physician’s role in the execution violated medical ethics. On December 28, 2005, the Court issued an Order denying defendant’s Motion to Dismiss and ruling that the case presented factual issues which would likely be resolved by either a motion for

1 Richard Clay was previously granted leave to intervene in this action. On January 30, 2006, the Court orally granted Mr. Clay’s Motion to Dismiss this action as to him without prejudice. Reginald Clemons also had a pending Motion for Leave to Intervene in this action. He has now also moved to withdraw from this action.

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summary judgment or through a hearing (Doc. # 54). On January 3, 2006, the defendants notified the Court that the Supreme Court of Missouri had set plaintiff’s execution date for February 1, 2006. On January 18, 2006, plaintiff filed an Application for a Court Order requesting that the Court issue an Order directing that Taylor not be executed until further order of the Court to be issued within a reasonable time after a hearing on the merits which was scheduled for February 21, 2006. On January 19, 2006, Judge Scott Wright issued an Order staying the execution until the Court could conduct the hearing (Doc. # 62). The same day, defendants appealed Judge Wright’s ruling to the Eighth Circuit. On January 29, 2006, the Eighth Circuit entered an Order reversing and vacating Judge Wright’s January 19, 2006 Order. The Eighth Circuit remanded the case to the Western District and directed that the Court reassign the case to another judge for an immediate hearing. The Eighth Circuit directed that an Order be issued no later than 12:00 Noon on Wednesday, February 1, 2006. This case was assigned to this Court on Monday, January 30, 2006.
On January 30-31, 2006, this Court conducted a telephonic hearing regarding plaintiff’s Complaint. During the telephonic hearing, the Court heard the testimony of the following individuals: Dr. Mark Dershwitz, Dr. Jonathan I. Groner, Dr. Mark Heath and Terry W. Moore, the Director of Adult Institutions for the Missouri Department of Corrections. Plaintiff requested that the State produce John Doe Numbers One and Two (the doctor and the nurse who participated in the most recent execution), but this request was denied. Plaintiff also sought to present the testimony of Dr. Sri Melethil, a pharmacokineticist, but he was out of town and unable to appear until the morning of
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February 1, 2006. After considering the evidence and the testimony of these individuals, the Court determined that neither the chemicals used by the State for lethal injection nor the procedure employed to administer these injections constituted cruel or unusual punishment. The Court noted that while the plaintiff suggested a different approach to lethal injection, he had not shown that the current method used by Missouri violated the Eighth Amendment. Further the Court was not persuaded that the use of the femoral vein for the administration of the lethal injection violated applicable standards of the Eighth Amendment. The Court also did not find that Missouri physicians who are involved in administering lethal injections were violating their ethical obligations or that the procedure was violative of the Thirteenth Amendment.
Plaintiff appealed this Court’s January 31, 2006 Order, arguing that he did not have sufficient time to present his arguments to the Court during the two day telephonic hearing. Plaintiff argued that this Court had abused its discretion in not allowing him to call John Doe I and II or Dr. Melethil and also erred in denying his claims. On April 27, 2006, the Eighth Circuit remanded the case to this Court to reconvene the hearing. The Eighth Circuit gave the parties thirty days to engage in some limited additional discovery and then an additional thirty days within which the hearing was to be held and for this Court to issue its Order, amending, modifying or restating the previous judgment and certifying the same to the Eighth Circuit.
The Court allowed plaintiff to conduct the following discovery: a Rule 34 inspection and videotaped tour of Missouri’s execution chamber, a deposition of Larry Crawford, Director of the Missouri Department of Corrections and document requests
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which pertained to the last six executions carried out by the State of Missouri. The document requests included any execution logs, records, autopsy reports, test results and analyses of post-mortem/toxicology reports. The State also provided information regarding what specialized training the physicians and nurses undergo who participate in administration of the drugs and all documents pertaining to any fall back procedures regarding vein access and the three drug sequence. The Court also allowed plaintiff to submit interrogatories to John Doe Defendants I - V. After John Doe I submitted his interrogatory responses, plaintiff again asked the Court for permission to depose him. The Court allowed plaintiff to conduct a limited anonymous deposition of John Doe I. This deposition was conducted at the Courthouse, with only the Court and counsel present. On June 12 -13, 2006 this Court continued the hearing which was begun in January 2006. During the hearing, plaintiff presented the testimony of Dr. Mark Heath, an anesthesiologist, Dr. Stephen Johnson, an expert in central line placement and femoral line placement and Dr. Thomas Henthorn, an expert in pharmokinetics. The State presented the testimony of Dr. Mark Dershwitz, an anesthesiologist, Terry Moore, Director of Adult Institutions for Department of Corrections and Larry Crawford, Director of the Department of Corrections.
II. DISCUSSION A. Standard The Eighth Amendment provides that “cruel and unusual punishment” shall not be inflicted. It prohibits punishments that are “incompatible with the ‘evolving standards
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of decency that mark the progress of a maturing society.’” Estelle v. Gamble 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)). As to executions, it prohibits “the unnecessary and wanton infliction of pain” as well as methods involving torture or a lingering death. See Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976). “The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947)(emphasis added). Additionally, as the Court noted in Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994), “[t]he risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.”
B. Missouri’s Execution Procedure During the January 30-31, 2006 hearing, Terry Moore, Director of Adult Institutions for the Missouri Department of Corrections, described what he believed was the execution procedure used in Missouri. Mr. Moore testified that three drugs are administered by a board certified physician. The physician first administers five grams of sodium pentothal, also known as thiopental, which is a substance that produces anesthesia. Thereafter, the physician administers a syringe of saline to flush the IV line. Next, the physician administers pancuronium bromide, also referred to as pancuronium. This drug is a paralytic agent which prevents any involuntary movement of the body. The physician then again administers the saline solution. Finally, the third drug which is
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administered is potassium chloride, which is a drug which stops the electrical activity of
the heart. There was no dispute that if an inmate is not sufficiently anesthetized when
the potassium chloride is administered, it will cause excruciating pain as it is
administered through the inmate’s veins. The inmate, however, would be unable to
show that he was experiencing discomfort due to the paralyzing effects of the
pancuronium bromide.
After the Eighth Circuit remanded this case, the Court allowed plaintiff to conduct
additional limited discovery. In a letter sent to the Court on May 17, 2006, plaintiff’s
counsel informed the Court that new evidence in the form of chemical dispensary logs,
which had recently been produced by the State, contradicted the State’s previous
representations regarding the amount of thiopental that is used during executions.
In response, counsel for the State confirmed in a letter sent to the Court on May
17, 2006 that 5 grams of sodium pentothal are used:
As plaintiff correctly points out, defendants have stated consistently that 5 grams of sodium pentothal are used in executions in Missouri. Five grams are in fact used. The reference to the 2.5 grams noted in the drug log is not correct. The doctor and the nurse who have prepared the drugs for the last six executions and for plaintiff’s stayed execution confirm that 5 grams has been used in the last six executions and was prepared for plaintiff’s stayed execution. (Defendants are attempting to run down the source of the error in the record, and continue to do so.) However, the next day on May 18, 2006, counsel for the State sent the Court another letter in which they acknowledge that a mistake had in fact been made regarding the representations as to the amount of thiopental administered. The letter stated in part: Upon further review, defendants have just determined this afternoon,
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contrary to previous representations, that 2.5 grams of sodium pentothal was prepared and used at the last execution (not 5 grams) and that 2.5 grams was prepared for use at the execution of plaintiff (which was stayed before the femoral IV was inserted). Defendants and their counsel apologize to the Court and the parties for providing incorrect information.
(Doc. # 121).
Upon learning of this information, the Court submitted a set of interrogatories to
John Doe I 2 to answer. The Court inquired whether the lethal injection protocol was
codified in any publication, policy statement or state regulation. John Doe I responded
that he was not aware of the protocol being written down in any form. He stated that it
was his understanding at the time of Mr. Gray’s execution that he had the independent
authority to change the dose based on his medical judgment. He stated that this
understanding was based on past contacts with predecessors of the current Director of
the Department of Corrections. When the Court asked how many times the protocol
has been modified since it was put into place, John Doe I responded:
John Doe I can recall one instance when three syringes of potassium chloride were used based on the obesity of the offender. John Doe I can recall one instance when the IV was inserted in the offender’s neck instead of his femoral vein based on the damage to both of his femoral veins from drug abuse. John Doe I is aware of one instance when a peripheral IV was used because John Doe I was unable to attend the execution. For the execution of Mr. Gray and the preparation for the execution of Mr. Taylor, John Doe I determined to use 2.5 grams of sodium pentothal. This determination occurred because of difficulty in dissolving powder, obtained from a new supplier, containing more than 2.5 grams in the liquid that could be accommodated in a syringe. The rate of infusion and the concentration of the dose ensured that 2.5 grams was more than sufficient to make the offender unconscious before administering the remaining drugs. Further, with regard to Mr. Taylor, John Doe I was aware that the dosage used in the execution of Mr. Gray was adequate. (Response to Interrogatory No. 5, Doc. # 152).
2Defendants have disclosed that John Doe I is the physician that mixes the drugs used during the executions.
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When asked who was consulted before the dosage of thiopental was decreased,
he responded that no one was consulted because he thought it was within the
acceptable parameters to accomplish the goal. When questioned about his medical
background, John Doe stated that although he was a board certified surgeon, he is not
an anesthesiologist. The Court also allowed plaintiff to conduct an anonymous
deposition of John Doe I on June 5, 2006.
When he was asked whether any part of the execution procedure was written
down, John Doe I responded as follows:
A. I have never seen it. If it was, it would have been written on my recommendation. Q. I see. Do you have any idea why it might not be written down? A. I’m sure it’s written down somewhere. If they’re checking the logs of all the drugs every time we use them and recording expiration dates and number of sheets and needles that we use, I’m certain they have it written down somewhere. Q. But in terms of the aspects of the procedure that you’re responsible for, that you perform, those aren’t written down, to your knowledge? A. It might be written in there, but it would be written on by somebody observing what I was doing and using their interpretation. So if there was a written procedure that they had done I would – you know, I’m curious to see what they think I’m doing, but I don’t know that they write down the individual details of how I insert an 18-gauge rather than a 22-gauge or a 14-gauge needle. Q. I see. So people might write things down as you’re doing them, but there’s no guide that you follow as you’re doing it? A. Absolutely not. Q. So you just rely on your memory? A. Yes. Q. And your judgment? A. Yes.
(John Doe Depo. pp. 69-70)
During his deposition, John Doe I described how he has had to devise an
improvised procedure with regard to mixing the correct dosage of thiopental:
Q. And could you take me step-by-step through that, your improvised process? A. I’d have to see the containers because I cannot at the present time remember
whether they have glass or – they are actually just two straight-walled glass bottles. One has powder in the bottom, one has liquid in the bottom, and they are designed to lock together and mix. So, I have to stick a needle through this
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plastic and inject my own diluents which I know will give me no more than 50 cc’s for the final product, which is what I’m aiming for for the final injection.
We have encountered problems trying to mix more than three or four grams using this method, mainly because of an inert substance possibly put in by the manufacturer to prevent mis-mixing, which I know several drug companies will do. So right now the last time I saw and talked to the Director on each of these occasions saying we either need to change what we say we’re dosing or we will have to go back to the original five-gram bottle that was available when we instituted this procedure. So right now we’re still improvising. And he’s also having me researching an alternate drug if it comes to that.
(John Doe Depo. pp. 9-10).
When John Doe I was asked why he did not initially recall why he prepared a
smaller dose of thiopental, he responded:
A. . . . But I am dyslexic and so I can recall in the operating room specific facts and details of operation and function perfectly, but in terms of copying one line to another or trying to simply copy a phone number or account number I will sometimes transpose numbers even when I’m staring at the two numbers. So, it’s not unusual for me to make mistakes. . . . But I am dyslexic and that is the reason why there are inconsistencies in my testimony. That’s why there are inconsistencies in what I call drugs. I can make these mistakes, but it’s not medically crucial in the type of work I do as a surgeon.
(John Doe Depo. pp. 24-25)(emphasis added).
In describing how the drugs are administered, John Doe I stated that, “ . . .the
people who do the injections are nonmedical and they’re in the dark so they have a
small flashlight that they’re able to quickly identify the syringes, make the appropriate
connections and injections, disconnect, clamp the tube, and changing the number of
syringes or the order of syringes was an unnecessary risk.” (John Doe Depo. p. 31).
When questioned about whether he monitors anesthetic depth, John Doe I
testified as follows:
Q. Did you monitor Mr. Gray’s anesthetic depth during the execution? A. I monitor – the only thing that can be monitored is facial expression, and you can judge when the effect of the drug is accomplished, and that can be seen from across a room through a window. And when that effect occurs then I know the inmate is unconscious. . . .
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Q. So you said that you can see that – an inmate’s facial expression from where you stand? A. Yes. That’s the only thing any anesthesiologist uses in the course of inducing a person when pentothal was still used, was you simply started injecting, look at the face, and again, it’s difficult to describe, but I can tell instantly when the pentothal has taken effect. And in medical practice the instant the pentothal has taken effect they gave absolutely no more because then they move on to the actual anesthesia which has to be started before the pentothal wears off.
(John Doe Depo. pp. 41-42).
When he was asked whether he had any discussions with Director Crawford
about the scope of his authority, John Doe I stated:
A. Oh, yes. We talk – I talk in his office and at the time of the execution. In fact, he’s the only director I have actually gone over to his office for other reasons and visited about this. And again, he has no background in corrections and he has no background in medicine, so the other corrections officers had long backgrounds in corrections so they were aware of what we were doing and why we were doing it. Since he has no background in either field, he reiterated that he’s totally dependent on me advising him what could and should and will be done, and he will back up – if I think there’s a change that needs to be made, he wants me to quickly inform him so he can make the appropriate changes. Q. I see. So, it’s your understanding that if you thought a change to the execution procedure needed to be made you would – Director Crawford would defer to your opinion? A. Absolutely.
(John Doe Depo. pp. 63-64).
C. Is Missouri’s Execution Procedure Constitutional?
In Morales v. Hickman, 415 F.Supp.2d 1037 (N.D.Cal. 2006), aff’d, 438 F.3d 926
(9th Cir. 2006), cert. denied,126 S.Ct.1314,163 L.Ed.2d 1148 (2006), the Court stated:
The Eighth Amendment prohibits punishments that are incompatible with the evolving standards of decency that mark the progress of a maturing society. . . . Executions that involve the unnecessary and wanton infliction of pain . . . or that involve torture or a lingering death . . . are not permitted. When analyzing a particular method of execution or the implementation thereof, it is appropriate 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 such that his execution by lethal injection under California’s protocol must be restrained.
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Id. at 1039 (internal citations and quotations omitted)(emphasis added). In that case the Court focused on the narrow issue of “whether or not there is a reasonable possibility that Plaintiff will be conscious when he is injected with pancuronium bromide or potassium chloride, and, if so, how the risk of such an occurrence may be avoided.” Id. at 1040. This is precisely the same question which this Court must address.
After learning more about how executions are carried out in Missouri, through the interrogatories submitted to the John Doe defendants, reviewing the chemical dispensary logs, reviewing the videotape of the execution chamber and listening to the testimony of John Doe I, and to the testimony of the other expert witnesses at the June 12-13, 2006 hearing, it is apparent that there are numerous problems. For example, there is no written protocol which describes which drugs will be administered, in what amounts and defines how they will be administered. John Doe I testified that he came up with the current protocol. John Doe I also testified that he felt that he had the authority to change or modify the formula as he saw fit. It is apparent that he has changed and modified the protocol on several occasions in the past. He has reduced the amount of thiopental given from 5.0 grams to 2.5 grams and has also changed the location on the inmate’s body where the drugs were administered. It is obvious that the protocol as it currently exists is not carried out consistently and is subject to change at a moment’s notice.
The Court is also concerned that John Doe I possesses total discretion for the execution protocol. Currently, there are no checks and balances or oversight, either before, during or after the lethal injection occurs. No one monitors the changes or modifications that John Doe I makes. John Doe I even testified that the Director of the Department of Corrections, Mr. Crawford, has no medical or corrections background,
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and that he is “totally dependent on me advising him.” (John Doe Depo. p. 64). In addition to the fact that there is no oversight and the responsibility for making
changes or adjustments is completely vested in one individual, the Court also has concerns about John Doe I’s qualifications. John Doe I readily admitted that he is dyslexic and that he has difficulty with numbers and oftentimes transposes numbers. John Doe I testified “it’s not unusual for me to make mistakes. . . . But I am dyslexic and that is the reason why there are inconsistencies in my testimony. That’s why there are inconsistencies in what I call drugs. I can make these mistakes, but it’s not medically crucial in the type of work I do as a surgeon.” (John Doe Depo. p. 25). The Court disagrees and is gravely concerned that a physician who is solely responsible for correctly mixing the drugs which will be responsible for humanely ending the life of condemned inmates has a condition which causes him confusion with regard to numbers. As the Court has learned, the process of mixing the three different drugs and knowing the correct amount of the drugs to dissolve in the correct amount of solution involves precise measurements and the ability to use, decipher, and not confuse numbers. Although John Doe I does not feel this is crucial in the type of work he does as a surgeon, it is critical when one is mixing and dissolving chemicals for a lethal injection.
In addition, John Doe I testified that although he is not an anesthesiologist, he monitors the anesthetic depth of an inmate by observing the inmate’s facial expression. However, as can be seen from the videotape of the execution chamber, when the inmate is lying on the gurney in the execution room, the inmate is facing away from the Operations room where John Doe I is located. Additionally, it is dark in the Operations room and there are blinds on the window which are partially closed and obstruct the
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view. This would make it almost impossible for John Doe I to observe the inmate’s facial expression. This leads the Court to conclude that there is little or no monitoring of the inmate to ensure that he has received an adequate dose of anesthesia before the other two chemicals are administered.
All of these concerns lead the Court to conclude that Missouri’s lethal injection procedure subjects condemned inmates to an unnecessary risk that they will be subject to unconstitutional pain and suffering when the lethal injection drugs are administered.
D. Revisions to the Execution Protocol Having determined that Missouri’s current method of administering lethal injections subjects condemned inmates to an unacceptable risk of suffering unconstitutional pain and suffering, the Court concludes that it is within its equitable powers to fashion a remedy that “preserves both the State’s interest in proceeding with Plaintiff’s execution and Plaintiff’s constitutional right not to be subject to an undue risk of extreme pain.” Morales, 415 F.Supp.2d at 1046. Director Crawford testified at the hearing that the Department of Corrections is in the process of developing a directive which would establish a protocol for administering lethal injections. However, from his testimony, it was apparent that the directive would not encompass all of the attributes which the Court finds are necessary to ensure that lethal injections are carried out humanely. Recently other courts have also faced this challenge and have modified execution procedures in those states. See e.g. Brown v. Beck, No. 5:06-CT-3018-H, (E.D.N.C. April 7, 2006)(Doc. No. 32) and Morales, 415 F.Supp.2d at 1046.
Accordingly, the Court hereby AMENDS its previous order of January 31, 2006 and ORDERS the Department of Corrections for the State of Missouri to prepare a
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written protocol for the implementation of lethal injections which incorporates the following provisions: 1. Personnel
A board certified anesthesiologist shall be responsible for the mixing of all drugs which are used in the lethal injection process. If the anesthesiologist does not actually administer the drugs through the IV, he or she shall directly observe those individuals who do so. Additionally, the Operations Room shall be sufficiently lighted so that the corrections personnel can see which drugs are being administered. 2. Lethal Injection Drugs & Method of Administration
The level of thiopental administered shall not be less than 5 grams. Pancuronium Bromide and Potassium Chloride will not be administered until the anesthesiologist certifies that the inmate has achieved sufficient anesthetic depth so that the inmate will not feel any undue pain when the Potassium Chloride is injected. The State in conjunction with the anesthesiologist will have discretion to determine the most appropriate location on the inmate’s body to inject the drugs. The State shall specify in the protocol how the anesthesiologist will certify that the inmate has achieved the appropriate anesthetic depth. 3. Monitoring
The State will put in place procedures which will allow the anesthesiologist to adequately monitor the anesthetic depth of the inmate. This may require the State to purchase additional equipment in order to adequately monitor anesthetic depth. The State should also consider repositioning the gurney so that the inmates’s face will be visible to the anesthesiologist, using a mirror, or even allowing the anesthesiologist to be present in the room with the inmate when the drugs are injected.
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The State’s protocol shall also contain a contingency plan in case problems develop during the execution procedure. 5. Auditing Process
The Department of Corrections shall put in place an auditing process which will ensure that the individuals involved in the lethal injection process are correctly following the protocol, including administering the correct dosages of the medication, in the proper order. The Court contemplates that the State will consult with a board certified anesthesiologist in designing the auditing process. 6. Changes to the Lethal Injection Procedure
After approval by the Court, no further changes shall be made to the lethal injection protocol without seeking the prior approval of this Court. This Order contemplates consultation with a board certified anesthesiologist in arriving at a proposed written protocol. The Court will retain jurisdiction over the State's implementation of the lethal injection protocol for the next six executions or until the Court is satisfied that the protocol is being administered in a consistent fashion. The Department of Corrections shall submit its revised lethal execution protocol to this Court for review and approval on or before July 15, 2006. All executions in the State of Missouri are hereby STAYED pending approval of the protocol.
III. CONCLUSION For the reasons stated above, the Court hereby AMENDS its January 31, 2006 Order and in accordance with the April 27, 2006 Order of the Eighth Circuit, this Court
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Date: June 26, 2006 Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR. Fernando J. Gaitan, Jr. United States District Judge

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 Case 2:05-cv-04173-FJG Document 198 Filed 07/14/2006 Page 1 of 12

THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR,

)

)

Plaintiff,

)

)

v.

)

Case No. 05-4173-CV-C-FJG

)

LARRY CRAWFORD, et al.,

)

)

Defendants.

)

DEFENDANT CORRECTIONAL OFFICIALS’ SUBMISSION OF PROPOSED EXECUTION PROTOCOL Attached as Exhibit A is the proposed execution protocol relating to the preparation and injection of the lethal chemicals. This protocol has been prepared by the defendant Corrections officials and is presented for Court review as directed by this Court’s order of June 26, 2006. In this order, the Court ordered the Corrections defendants to incorporate the

following provisions in its proposed protocol:

(1) Use of a board certified anesthesiologist to mix all drugs used in the lethal injection process and to directly observe the persons administering those drugs.
(2) Use of not less than five grams of thiopental. Pancuronium bromide and potassium chloride may be used, but not until after certification by the anesthesiologist that the condemned prisoner has reached a sufficient anesthetic depth so that the prisoner will not

experience undue pain when the potassium chloride is injected. The protocol is to specify

how sufficient anesthetic depth is to be certified. (3) Implementation of procedures that allow adequate monitoring of the anesthetic

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depth of the condemned prisoner. (4) Implementation of a contingency plan in case the execution procedure does not go
as expected. (5) Implementation of an auditing process to check that the execution protocol is being
correctly carried out. The protocol developed by the Department of Corrections addresses the concerns
raised by plaintiff at trial. Although the protocol does not completely implement all the provisions set out by the Court, the Corrections defendants believe that the protocol does appropriately meet the underlying concern of the Court that condemned prisoners be sufficiently unconscious at the time of the injection of the potassium chloride that they will not experience pain from the injection.1
Administration of Drugs The proposed protocol calls for use of five grams of thiopental. ¶¶ B2, E2. Pancuronium bromide and potassium chloride are administered after the thiopental but not until after an assessment by medical personnel that the condemned prisoner is unconscious. This assessment is to include use of standard clinical techniques for assessing consciousness, such as checking for movement, open eyes, eyelash reflex, pupillary responses or diameters,
1The Court’s order requires several elements to the revised Missouri execution protocol. Defendant Correction officials submit the proposed protocol as one they believe is a good policy instrument. They do not concede that the provisions of the proposed protocol are constitutionally required. Indeed, defendant Corrections officials note that the Court does not identify which elements of its June 26, 2006 order it believes are mandated by the Eighth Amendment.
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and response to verbal commands and physical stimuli. ¶ E3. Monitoring of Anesthetic Depth
As just noted, standard clinical techniques for assessing consciousness will be used. This will be done by direct physical contact with the condemned prisoner following the administration of the thiopental. ¶ E3. Additionally, the bed on which the condemned inmate is lying will be positioned so that the medical personnel can observe the prisoner’s face directly or with the aid of a mirror. ¶ D2.
Contingency Plan An additional five grams of thiopental is prepared before the execution for use in the event that the administration of the first five grams does not render the condemned prisoner unconscious. ¶ B8. A secondary intravenous (IV) line will be set in addition to the primary line. ¶ C1. In the event the administration of the first 5 grams of thiopental has not rendered the prisoner unconscious, the additional five grams of thiopental that have been prepared will be administered through the secondary line, as will the succeeding drugs. ¶ E4. In the event that electrical activity continues in the condemned prisoner’s heart for more than five minutes after the final flush solution is injected, additional potassium chloride will be injected. ¶ E10.
Auditing Process All members of the execution team will complete and sign the “Sequence of Chemicals” form that verifies that the drugs were given in the order specified in the protocol. ¶ F2. The medical personnel taking part in the execution will complete and sign the
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“Chemical Log” indicating the quantities of the drugs used (as well as the quantities disposed of) during (and after) the execution. ¶ F3. Within three days of an execution, the prison superintendent will submit the “Sequence of Chemicals” and the “Chemical Log” to the Director of the Division of Adult Institutions (DAI) of the Missouri Department of Corrections. ¶ F4. The DAI Director and the Department Director will review these records. ¶ F4. If any irregularity is found, the DAI Director will promptly determine whether there were any deviations form this protocol and report the findings of the investigation to the Department Director. ¶ F4.
Obtaining the Use of a Board Certified Anesthesiologist Inability to obtain and use board certified anesthesiologist. The Department of Corrections is unable to comply with the Court’s direction to obtain and use a board certified anesthesiologist in its execution process.2 After the Court issued its June 26, 2006 order, defendant Corrections officials sent letters to 298 board certified anesthesiologists in this State and southern Illinois inquiring of their willingness to participate in executions, as outlined by the court’s order. To this date, no one has accepted. See Exhibit B, attached to this pleading.
2The Court’s order calls for a board certified anesthesiologist to mix the drugs to be used, to observe the administration of the drugs, to monitor the anesthetic depth of the condemned prisoner, and to certify that the condemned prisoner has achieved sufficient anesthetic depth to be free of undue pain when the potassium chloride is injected. As shown above, these functions will be performed by medical personnel. Standards for determining unconsciousness and the means of monitoring the condemned prisoner throughout the process are also set out. Additionally, a board certified anesthesiologist has provided guidance in the development of this protocol.
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This reaction by the medical community is unsurprising. It was foreshadowed in the Ninth Circuit opinion in Beardslee v. Woodford, 395 F.3d 1064, 1074 (9th Cir. 2005). And as plaintiff alleged in his amended complaint, a physician’s participation may be perceived as a violation of a professional’s ethical standards. See Amended Complaint, at ¶ 81, citing American Medical Association’s Code of Ethics, E-2.06, which is itself attached as Exhibit 22 to the Amended Complaint.
The hostility of the anesthesiologist community to the Court’s order was swift. The June 30, 2006 message from the President of the American Society of Anesthesiologist to member anesthesiologist is perhaps best summarized by its last two words of advice: “[s]teer clear.” See Exhibit C, at p. 4, attached to this pleading. So they have. See Exhibit B, attached to this pleading.
Rather than write a protocol with a role for an anaesthesiologist, complying with the letter of the Court’s June 26, 2006 order, but not its spirit of developing a protocol that could actually be implemented, the proposed protocol does not include a board certified anesthesiologist. Instead, it uses medical personnel in roles appropriate for the personnel. For example, a physician, nurse, or pharmacist prepares the chemicals. ¶¶ A2, B1. The thiopental will be prepared in 200 cc of solution (¶ B2), the amount of solution recommended by the manufacturer (Plaintiff’s Trial Exhibit 26). The other chemicals do not require mixing because they are packaged as liquids ready to inject.
Medical personnel insert the IV lines. ¶ C1. They attach the electrocardiograph to the condemned, and then monitor the machine. ¶¶ D1, D3. After injection of five grams of
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thiopental, medical personnel inspect the catheter site and physically examine the prisoner to confirm he is unconscious. ¶ B3. Only if the medical personnel has confirmed unconsciousness and three minutes have elapsed since the beginning of the injection of the thiopental will there be an injection of the second and third chemicals. ¶ B5. Even under Dr. Henthorn’s modeling, the passage of three minutes is sufficient to render the condemned unconscious. Tr. (June 12) 228. But if not, corrections officials stand ready to provide a second five gram injection of the thiopental. ¶¶ B8, E4.
The proposed protocol is sufficient to prevent unnecessary and wanton infliction of pain. The substitution of medical personnel for a board certified anesthesiologist is reasonable under the circumstances. A requirement of using a board certified anesthesiologist is a requirement that cannot presently be met. To enforce it may effectively bar implementation of the death penalty in Missouri. Surely that is not what the court intended.
Use of anesthesiologist not constitutionally required. Even if it were possible for the Department of Corrections to find a board certified anesthesiologist to provide services during executions, the Corrections defendants respectfully contend that the district court legally erred in imposing such a requirement. Assistance of an anesthesiologist at an execution has never been determined to be constitutionally required3 and, for this reason, the
3In fact, it appears from reported opinions that at least two states conduct judicially approved executions without the presence of a doctor of any kind. Abdur’rahman v. Bredesen, 181 S.W.3d 292, 301 (Tenn. 2005) (describing a process in which the prison warden prepares the drugs and a non-physician prison official injects the drugs; a physician is on site only to perform a “cut down” procedure in the event the paramedics, two of whom
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order goes beyond the Court’s power in requiring the assistance of an anesthesiologist in Missouri executions.
The one case defendants have found that directly examined the issue of whether the assistance of an anesthesiologist is required during executions concluded that an anesthesiologist is not required. Evans v. Saar, 412 F. Supp. 2d 519, 524-25 (D. Md. 2006) (denying injunction to stay execution). See also Bieghler v. State, 839 N.E.2d 691, 695-96 (Ind. 2005) (denying habeas relief despite challenge that state had not developed its execution protocol with input from a person trained in anesthesiology), cert. denied, 126 S. Ct. 1190 (2006). Not even the decision in Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006), aff’d, 438 F.3d 926 (9th Cir. 2006), cert. denied, 126 S. Ct. 1314 (2006), relied on by plaintiff, requires use of anesthesiologist for either option approved by the district court. One option permitted by the Morales court was execution by means of a massive dose of thiopental alone or some other barbiturate or combination of barbiturates, without any direction that a doctor be present. 415 F. Supp. 2d at 1047. Even the second option required only a person with formal training and experience in the field of general anesthesia and not necessarily a board certified anesthesiologist. Id.
Further, the evidence from this case establishes that an execution can be carried out
are present at the execution, are unable to insert an IV in the condemned’s arm ), cert. denied, 126 S. Ct. 2288 (2006); Ex parte Aguilar, 2006 WL 1412666, at *4 (Tex. Ct. Crim. App., May 22, 2006) (reference in Concurring Statement to suggestion of plaintiff’s expert witness that lethal injection procedure “should be performed by and reviewed by doctors”), stay of execution denied sub nom. Aguilar v. Dretke, 2006 WL 1667012 (U.S. Sup. Ct., May 24, 2006).
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without unnecessary and wanton pain without the assistance of a board certified anesthesiolo gist. The protocol proposed by the Department of Corrections complies with the constitutional standard. Plaintiff’s expert, Dr. Henthorn agreed that a five gram dose of thiopental would result in the condemned being rendered deeply unconscious (more so than the level of consciousness intended for surgical procedures) within two minutes and for a much longer time period than required to complete the execution. Tr. (June 12) 235-36. Thus, if five grams of thiopental is administered, there would be no need to monitor the anesthetic depth of the condemned for some time. Tr. (June 12) 236-37. Therefore, even under plaintiff’s evidence, once five grams of thiopental is administered and given two minutes to take effect, monitoring of anesthetic depth is not necessary to assure that a condemned prisoner will not experience unnecessary and wanton pain during the administration of the next two drugs.
Assurance that the thiopental prepared is administered appropriately is important, and the protocol developed by the Department of Corrections does implement steps to provide such assurance. A doctor, nurse, or pharmacist is to prepare the thiopental. ¶ A2. This is a straight-forward matter of mixing a powder with a liquid found in a manufacturer’s kit. See Evans, 412 F. Supp. 2d at 524-25; Tr. (Jan. 30) 30-31.4 Two IV lines are set by persons with
4The difficulty in mixing referred to by Dr. John Doe I in his/her deposition (entered into evidence) was the result of attempting to mix the thiopental at a concentration higher than normally used. Under the attached protocol developed by the Department of Corrections, the five grams thiopental will be administered in 200 cc of solution, which is the standard 2 ½ % solution (25 mg per mL [equivalent to cc]). See Exhibit D, attached to this pleading (page from Physician’s Desk Reference setting out information on contents of manufacturer’s kits). Thus, the preparation of the thiopental will no longer present the
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training, education, and experience in doing so. ¶¶ A3, C1. The setting of IV lines is a procedure within the competence of doctors, nurses, and emergency medical technicians. 5
Reid v. Johnson, 333 F. Supp. 2d 543, 546 n.6 (E.D. Va. 2004); State v. Webb, 750 A.2d 448,
452 (Conn. 2000), cert. denied, 121 S. Ct. 93 (2000). At the time the IV lines are set, they
are checked to make certain they are not obstructed. ¶ C2. The medical person who is to
assess the consciousness of the condemned prisoner between the administration of the
thiopental and the succeeding drugs will also check the IV catheter site at that time as well.
¶ E.3. These steps will provide assurance that the thiopental has been appropriately
administered, which in turn, as discussed above, renders the need to assess anesthetic depth unnecessary.6
Another point raised by plaintiff at the trial is also addressed in the protocol. Dr.
Henthorn testified that waiting to two minutes after injection of thiopental before injecting
problems dealt with by Dr. Doe. 5The provision that permits a emergency medical technician (EMT) to set IV lines and
to check them for obstructions is not a step back from previous Department of Corrections practice of obtaining the presence of a doctor at executions. Permitting the medical roles to be filled by an EMT is only a foresighted recognition that there may be a time that the presence of a doctor cannot be obtained. In such a case Corrections will plan to go forward with the execution with the aid of an EMT, just as it would have had a doctor not been available in the past. The intent of the Department of Corrections is to obtain the presence of a doctor at executions if at all possible.
6Even though vigilant attention to proper administration of the thiopental will provide assurance that the condemned prisoner has reached a quite deep level of unconsciousness before the succeeding drugs are administered, the medical person present at the execution will still assess the consciousness of the condemned with standard clinical techniques before the second two drugs are administered. ¶ E3.
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the succeeding drugs would substantially reduce the risk of pain to the condemned prisoner. Tr. (June 12) 228. This concern is allayed by the provision in the protocol that calls for the second and third drugs not to be administered sooner than three minutes have elapsed since the beginning of the injection of the thiopental. ¶ E5.
The protocol as drafted provides an ample level of confidence that condemned prisoners executed under its provisions will not be subjected to cruel and unusual punishment.
A court may exercise its power only on the basis of a constitutional violation. Swann v. Charlotte-Mecklenburg Bd. of Ed., 91 S. Ct. 1267, 1276 (1971). “The court’s exercise of equitable discretion must heel close to the identified violation and respect ‘the interests of state and local authorities in managing their own affairs, consistent with the Constitution.’” Gilmore v. California, 220 F.3d 987, 1005 (9th Cir. 2000) (quoting Milliken v. Bradley, 97 S. Ct. 2749, 2757 (1977)). See also Toussaint v. McCarthy, 801 F.2d 1080, (9th Cir. 1986) (“Injunctive relief against a state agency or official must be no broader than necessary to remedy the constitutional violation”), cert. denied, 107 S. Ct. 2462 (1987); 18 U.S.C. 3626(a)(1) (“Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiff”).
The Court’s direction to defendant Corrections officials to include assistance of a board certified anesthesiologist goes beyond its power under these standards. As discussed above, no court has ever found that assistance of an anesthesiologist is constitutionally
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required at an execution. Moreover, as shown above, there is no necessity here, considering the evidence adduced and the protocol developed by the Department of Corrections, to require the assistance of a board certified anesthesiologist at executions in Missouri. Imposing such a requirement is much broader than necessary to remedy the concerns of the Court.
WHEREFORE, the defendant Corrections officials, pray this Court to approve the protocol developed by the Department of Corrections.
Respectfully submitted, JEREMIAH W. (JAY) NIXON Attorney General /s/ Michael Pritchett MICHAEL PRITCHETT Assistant Attorney General Missouri Bar No. 33848 /s/ Stephen D. Hawke STEPHEN D. HAWKE Assistant Attorney General Missouri Bar No. 35242 P.O. Box 899 Jefferson City, MO 65102 Telephone No. (573) 751-3321 Fax No. (573) 751-9456 ATTORNEYS FOR DEFENDANTS CRAWFORD AND PURKETT
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CERTIFICATE OF SERVICE

I hereby certify that on July 14, 2006, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system which sent notification of such filing to the

following:

John W. Simon, Attorney at Law 2683 South Big Bend Boulevard, # 12 St. Louis, MO 63143-2100

Donald B. Verrilli, Jr. Matthew S. Hellman Eric Berger Jenner & Block LLP 601 13th Street N.W. Washington, DC 20005

/s/ Michael Pritchett Assistant Attorney General

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 Case 2:05-cv-04173-FJG Document 202-1 Filed 07/24/2006 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR

)

)

Plaintiff, )

)

v.

)

)

LARRY CRAWFORD, et al.,

)

)

Defendants. )

____________________________________)

No. 05-4173-CV-W-FJG

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ PROPOSED PROTOCOL

JOHN WILLIAM SIMON J.D., PH.D.
2683 South Big Bend Blvd, # 12 St. Louis, Missouri 63143 (314) 645-1776 FAX: (314) 645-2125

DONALD B. VERRILLI, JR. MATTHEW S. HELLMAN GINGER D. ANDERS ERIC BERGER
JENNER & BLOCK LLP 601 13th Street NW Washington, DC 20005 (202) 639-6000 FAX: (202) 661-4983

Counsel for Plaintiff

Case 2:05-cv-04173-FJG Document 202-1 Filed 07/24/2006 Page 2 of 20
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 I. THE STATE’S PROPOSED PROTOCOL MUST BE REJECTED. .................................2
A. Monitoring Anesthetic Depth. .................................................................................2 B. IV Access. ................................................................................................................5 C. Mixing the Chemicals. .............................................................................................7 D. Drug Administration. ...............................................................................................8 E. Contingency Plan. ..................................................................................................10 F. Auditing Process. ...................................................................................................11 G. Changes to the Lethal Injection Procedure. ...........................................................13 II. THIS COURT SHOULD REJECT THE STATE’S CHALLENGE TO ITS REQUIREMENT THAT AN ANESTHESIOLOGIST PARTICIPATE IN THE LETHAL INJECTION PROCEDURE..............................................................................14
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Bieghler v. State, 839 N.E. 691 (Ind. 2005)...................................................................................15 Evans v. Saar, 412 F. Supp. 519 (D. Md. 2004)............................................................................15
STATUTES AND REGULATIONS 19 Mo. Code State Regs. § 30-40.303 .............................................................................................3
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INTRODUCTION In response to this Court’s determination that Missouri’s execution procedure exposes inmates to an unnecessary and unconstitutional risk of excruciating pain, Defendants (“the State”) have submitted a vague, incomplete protocol that does not even attempt to comply with this Court’s Order of June 26, 2006 (“Order”) or minimize the likelihood of pain to inmates. Plaintiff established at trial, and this Court found, that the State’s execution procedure has been plagued by “numerous problems.” Order at 11. Instead of taking this opportunity to embark on a considered process of meaningful reform, the State has failed outright to address many deficiencies and papered over others. The result is not a true execution protocol -- which should take the form of a set of step-by-step instructions that can be followed precisely by the execution team -- but rather a set of provisions that only vaguely describes what personnel might do, or simply parrots the Order’s language without explaining whether or how Defendants will actually alter their practices. The State’s proposed protocol, if one can call it that, thus utterly fails to protect inmates from the errors, ad hoc improvisations, and poor judgment of inadequately trained personnel forced to carry out executions without adequate guidance. Part I of this Opposition argues that this Court should reject the State’s proposed protocol for two reasons. First, the State has not complied with many aspects of the Order, including its requirement that the State include a board-certified anesthesiologist. Instead, the State would allow any physician (including John Doe I), nurse, or even EMT to carry out the execution. Second, the proposed protocol is not an acceptable alternative to the Court’s requirements because it perpetuates the unnecessary risk of excruciating pain present in the State’s procedures to date, see Heath Decl. ¶ 2 (Exh. A), and thus does not comply with the Eighth Amendment. Part II argues that this Court should reject the State’s claim that it was legal error to require the
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participation of an anesthesiologist in its execution procedure. I. THE STATE’S PROPOSED PROTOCOL MUST BE REJECTED. A. Monitoring Anesthetic Depth.
Plaintiff established at trial that so long as potassium chloride is used in the execution procedure, it is necessary to induce general anesthesia to prevent the inmate from being subjected to the excruciating pain caused by the potassium. Trial Tr. 14; Heath Decl. ¶ 4. Assessing anesthetic depth is imperative, because the substandard practices of catheterization and drug administration used for executions create a significant and unnecessary likelihood that the intended dose of anesthetic will not in fact reach the inmate’s circulatory system.1 Id. ¶ 9.
1. The State’s Proposed Protocol Does Not Comply with the Court’s Order. This Court ordered Defendants to adopt procedures to require a board-certified anesthesiologist to “adequately monitor the anesthetic depth of the inmate.” Order at 14. As this Court noted, Defendants have to this point performed “little or no monitoring of the inmate to ensure that he has received an adequate dose of anesthesia.” Id. at 13. The requirement of “adequate” monitoring necessarily entails having a board-certified anesthesiologist exercise his or her medical judgment as to how, and with what equipment, to monitor anesthetic depth, given the execution set-up and the excruciating pain that could be caused by potassium. Defendants clearly have not complied with this crucial aspect of the Court’s Order. Rather than use a board-certified anesthesiologist, Defendants propose to use a physician, nurse
1 Defendants, however, consistently refuse to acknowledge this basic point, arguing that “if five grams of thiopental is administered, there would be no need to monitor the anesthetic depth of the condemned.” Defs. Mem. at 8. As Defendants’ own qualification implies, the need to monitor anesthetic depth arises from uncertainty regarding whether five grams of thiopental have in fact been administered into the inmate’s circulation – where it must arrive in order to have any effect – and whether the thiopental has had the expected effect of causing unconsciousness. Trial. Tr. 253-56.
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or EMT to monitor anesthetic depth. Such personnel lack the years of advanced training in anesthesiology that inform the decisions and performance of a board-certified anesthesiologist. See Heath Decl. ¶¶ 11-12.
2. The State’s Proposed Alternative Creates An Unnecessary Risk Of Pain. The State’s proposed method of using “[a] physician, nurse, or emergency medical technician” to assess anesthetic depth in a manner prescribed by the State, see Protocol ¶ A.3, fails to minimize the risk that inmates will be subject to excruciating pain. It is therefore not an adequate substitute for the procedure ordered by the Court. First, Defendants propose to use personnel untrained in anesthesiology to perform the monitoring function. Assessing and monitoring anesthetic depth is “inherently a complex task that requires the real-time and continuous integration of multiple lines of evidence and information.” Heath Expert Report ¶ 17. Nurses, EMTs, and physicians who are not anesthesiologists all lack the advanced training in anesthesiology that is necessary to properly interpret the subtle indicia of consciousness, and therefore will not be able to accurately and reliably monitor anesthetic depth.2 See Heath Decl. ¶¶ 11-12; Trial Tr. 26. Second, the means of anesthetic monitoring that Defendants propose are completely inadequate to ensure that an inmate has reached, and remains in, a surgical plane of anesthesia. As Plaintiff has established, the injection of a high concentration of potassium into the veins is excruciatingly painful, akin to a surgical incision. Trial Tr. 57-60. Because anesthesia has many levels, an inmate can be lightly anesthetized, and therefore not responsive to mild stimuli (such
2 Perhaps most disturbing is the State’s statement that it might perform executions with only an EMT present. EMTs in Missouri may provide patient care only under the supervision of a doctor, 19 Mo. Code State Regs. § 30-40.303 -- which they would not have if no doctor were present at the execution. In addition, EMTs are trained to provide specific types of emergency care, and thus are not trained in inducing and monitoring anesthetic depth. See Heath Decl. ¶ 11.
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as voice or touch), but still be fully aware of more painful stimuli. Heath Decl. ¶ 22. Thus, any assessment of anesthetic depth must effectively test whether the inmate is able to feel pain equivalent to surgery.
Instead of leaving assessment of anesthetic depth to an anesthesiologist who would be able to bring extensive training to bear on the task, the DOC has simply copied a non-exclusive list of monitoring techniques from a Practice Advisory meant for an audience of anesthesiologists. See Exh. 3 to Heath Decl.; Heath Decl. ¶¶ 15-23; Protocol ¶ E.3. The listed techniques, however, each have a specific purpose, and provide specific types of information to anesthesiologists, who have the tools necessary to interpret them. Some are effective only for measuring very shallow levels of unconsciousness. Heath Decl. ¶ 22. Using untrained personnel to employ some or all of the listed techniques, with no understanding of “what information each technique can provide and how each fits in to the broad suite of assessment techniques,” id., is wholly inadequate to ensure that the inmate is in fact sufficiently anesthetized.
Although the proposed protocol also appears to provide for remote monitoring of the inmate’s face from the execution support room, see Protocol ¶ D.2, such monitoring will be ineffective, particularly after the pancuronium has paralyzed the inmate’s face muscles. See Heath Decl. ¶ 23; Standards for Basic Anesthetic Monitoring, attached as Exh. 4 to Heath Decl. (“Qualified anesthesia personnel shall be present in the room throughout the conduct of all general anesthetics . . . .”). Thus, this aspect of the proposal does not provide a substitute for bedside monitoring of the inmate by an anesthesiologist. Id.
Finally, the State offers no detail as to how it has improved the view from the support room to allow adequate monitoring, merely stating that “the gurney is positioned so that the medical personnel can observe the prisoner’s face directly or with the aid of a mirror.” See
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Protocol ¶ D.2. 3 At a minimum, the vagueness of the State’s representation indicates that it has not thought through how it actually will implement this part of the procedure.4 Even more disturbingly, given that John Doe I already represented, incorrectly, that the prior set-up afforded an adequate view of the inmate’s face, see, e.g., Doe I Depo. Tr. at 41-42, it is entirely possible that the State has changed nothing at all or has made changes that are not meaningful. B. IV Access.
1. The State’s Proposed Protocol Does Not Comply with the Order. This Court’s Order provides that the State, in conjunction with an anesthesiologist, will have discretion to determine the site of IV access. See Order at 14. The State has procured no anesthesiologist and therefore cannot comply with this portion of the Court’s Order. 2. The State’s Proposed Alternative Creates an Unnecessary Risk of Pain. Defendants’ proposed plan for obtaining IV access is seriously flawed. First, the protocol fails to ensure that the process of inserting the IVs will be safe and humane. Although the protocol on its face provides medical personnel with discretion to determine the “most appropriate” location in which to insert the catheter, it does not specify whether the most “appropriate” location will be determined based on the medical judgment of a qualified individual. This vagueness is particularly disturbing in light of John Doe I’s previous prioritization of aesthetic concerns -- speed of injection and concealment of the IV site -- in choosing the femoral line as the automatic means of IV access. See Doe I Depo Tr. 87, 104-05. In fact, the protocol explicitly reserves the execution team’s right to place central lines,
3 Because the view of the inmate’s face from the execution support room was obstructed, this Court noted that the State may have to reposition the gurney in order to render the inmate’s face visible. See Order at 12, 14. 4 Moving the gurney could affect other elements of the execution set-up, such as the length of the IV tubing.
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even when they are not medically necessary.5 Every type of central line is significantly more invasive than a peripheral line, and involves potentially agonizing complications. Heath Decl. ¶ 28. It is inhumane, therefore, to determine whether to use a central line based on considerations other than medical necessity.6 Id. ¶ 25.
In addition, the protocol does not specify when the catheter site will be chosen. This is a determination that could be made ahead of time, based on an examination of the inmate, and need not be an on-the-spot decision. Id. ¶ 30. The protocol fails to recognize that allowing medical personnel to decide to place a central line once the inmate is already on the gurney could force personnel to perform the catheterization without the equipment necessary to treat the complications that could arise. Id.
These dangers are compounded by the fact that the protocol contemplates that personnel without current and regular experience placing central lines could have sole discretion over these aspects of the procedure. Nurses and EMTs alone do not place central lines, or determine that a central line is necessary, except in emergency circumstances. Id. ¶ 27. Many doctors do not regularly place central lines, and therefore are not proficient in the procedures. Trial Tr. 53. Delegating authority to these personnel to place central lines, perhaps without advance planning and the necessary equipment, creates a significant and unnecessary risk that the inmate will experience excruciating pain and complications from the IV procedure itself.
Second, these same inadequacies substantially increase the likelihood that the IV will not be a reliable one. Id. ¶¶ 24, 31. Plaintiff previously proffered substantial evidence regarding the
5 The protocol specifies that the backup line will always be peripheral, Protocol ¶ C.1, even if the primary IV is central -- which necessarily means that Defendants contemplate inserting central lines in inmates whose peripheral veins are undamaged. 6 John Doe I believed that the invasive and risky femoral line was the most appropriate because the catheter site could be hidden from view under a sheet and the line would allow a very quick injection. Doe, Depo Tr. at 104-05.
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potential that an IV line could become dislodged, infiltrated, or blocked, even when the catheterization is performed by a board-certified surgeon. Trial Tr. 77-82. These dangers are exacerbated by the proposed protocol, and by existing deficiencies in the procedure, such as the use of a sheet that hides the catheter site and IV tubing from view.7 C. Mixing the Chemicals.
1. The State’s Proposed Protocol Does Not Comply with the Order. This Court required that a board-certified anesthesiologist mix the drugs. See Order at 14. Instead, acknowledging that it has failed to comply with this requirement, the State has decided that a “physician, nurse, or pharmacist [will] prepare[] the chemicals.” Protocol ¶ A.2; Defs. Mem. at 4. The State thus leaves open the door for John Doe I to continue to do the mixing. This Court was “gravely concerned that a physician who is solely responsible for correctly mixing drugs which will be responsible for humanely ending the life of condemned inmates” was unable to mix the thiopental correctly. Order at 12. The State flouts this concern by allowing the mixing to be performed by this very individual. Adequate provision for proper mixing of the thiopental is crucial to complying with the Court’s requirement that the “thiopental administered shall not be less than 5 grams.” Id. at 14. The State’s proposal states that it will use 5 grams, see Protocol ¶ B.2, but its lack of detail regarding the mixing procedure fails to guarantee that it will in fact successfully mix that amount. This concern is a very real one, as the State was unable to ensure that 5 grams would be mixed in previous executions, and previously used a type of thiopental kit that made mixing a larger-than-normal dose more difficult. See Heath Decl. ¶ 37. There is no indication that the
7 That the State indicates it will inspect the catheter site when it checks anesthetic depth, see Protocol ¶ E.3, is not sufficient to guard against other foreseeable problems that might arise, such as leaks or kinks in the tubing.
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DOC has considered or addressed these issues. See id. ¶ 36-37. The State’s failure to protect against ad hoc deviations from the mixing procedure, and the participation therein of John Doe I, thus prevent the State from effectively guaranteeing that 5 grams will in fact be prepared and administered.
2. The State’s Proposed Alternative Creates an Unnecessary Risk of Pain. John Doe I’s participation, of course, raises special concerns that the State will fail to mix 5 grams of thiopental. But even if he does not perform the mixing, the State’s proposal fails to provide adequate assurance that the drugs will be successfully mixed. The State contemplates using personnel with little to no experience in mixing drugs to perform the task, see Protocol ¶ A.2, but has provided no instructions on how to perform the mixing. See Heath Decl. ¶ 36. Because personnel must prepare a dose of thiopental that is much larger than the standard clinical dose for which thiopental kits are designed, the mixer must deviate from the mechanical instructions provided in the package insert. See id. The State then creates a significant risk that untrained personnel will improvise a mixing process, leading to mistakes and an inability to prepare a full dose of anesthetic. Id. ¶ 37-38. D. Drug Administration. 1. The State’s Proposed Protocol Does Not Comply with the Order. This Court required an anesthesiologist either to administer the drugs or directly oversee those individuals who do so. Order at 14. It further required the anesthesiologist to certify that the inmate has achieved sufficient anesthetic depth before the injection of the pancuronium bromide and potassium chloride. Id. Obviously, the State has failed to comply with this Court’s direction that an anesthesiologist participate in the administration of the drugs, and certify anesthetic depth before the injection of the second and third drugs. The protocol also fails to
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specify how certification of anesthetic depth should be communicated to each member of the execution team before the injection of the other drugs.
The Court also requires the Operations Room to be “sufficiently lighted so that the corrections personnel can see which drugs are being administered.” Id. The proposed protocol merely parrots this language, stating that “[t]he lights in the execution support room are maintained at a sufficient level to permit proper administration of the chemicals.” Protocol ¶ E.1. This statement does not indicate how -- or even whether -- the State will adjust the lighting, or how the adjusted lighting will interact with the State’s anonymity concerns. Clearly, the State has not actually thought through what constitutes sufficient lighting, and thus has not meaningfully complied with the Court’s order.
2. The State’s Proposed Alternative Creates an Unnecessary Risk of Pain. The fact that the protocol is silent regarding precisely how the drugs will be administered and how the IV equipment and gurney will be set up leads to the conclusion that Defendants intend to retain many of the dangerous elements of their existing execution procedure. Plaintiff previously offered extensive evidence regarding the numerous failings of the procedure, including remote drug administration, the failure to use an IV drip to ensure the patency of the IV line,8 the inability to see the inmate clearly through the one-way glass and blinds, and the inability to monitor the IV tubing or catheter site visually because of the sheet covering the inmate. Trial Tr. 75-82. None of these issues is addressed or mentioned in the protocol; thus, it is reasonable to conclude that Defendants are planning to maintain these aspects of the
8 The protocol states that a “sufficient quantity” of saline will be injected to confirm that the IV lines have been properly inserted before the injection process begins. While this technique, along with effective monitoring of the catheter site, can confirm that the catheter is properly inserted at that point in the procedure, this technique by itself will not reveal whether the catheter has become dislodged or has infiltrated at a subsequent point, after the drugs have begun to be administered. Trial Tr. 78-79; Heath Decl. ¶ 31.
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procedure. In addition, the proposed protocol does not provide a means of certifying anesthetic depth, which would help prevent miscommunications among the execution team. See Heath Decl. ¶ 42. Individually and combined, these problems create a risk that the inmate will not receive the full dose of thiopental and the execution team will not be able to detect the problem.
Along similar lines, the proposed protocol and Defendants’ memorandum are conspicuously silent on the question of whether John Doe I will continue to participate in executions. The proposed protocol is, as discussed above, vague on a number of crucial medical issues, apparently conferring unbridled discretion on the medical personnel. If John Doe I continues to supervise executions, therefore, he will be entrusted with same degree of discretion that he has enjoyed in the past. See Order at 11-12. Plaintiff proffered extensive testimony at trial regarding John Doe I’s questionable medical judgment and the dangers created by his control over the procedure, and this Court expressed serious concerns regarding his participation. Trial Tr. 20-66; 152-68; Order at 8-12. Defendants’ apparent reservation of their right to retain John Doe I is therefore completely unacceptable. E. Contingency Plan.
1. The State’s Proposed Protocol Does Not Comply with the Order. This Court also required the State’s protocol to contain a contingency plan in case problems develop during the execution procedure. Order at 15. The State has complied only in part, providing for a second IV line through which an additional 5 grams of thiopental will be administered if the initial 5 grams do not render the prisoner unconscious. See Defs. Mem. at 3. This Court, however, found that the State’s lethal injection procedure created an unnecessary risk of pain, see Order at 13, so the State’s contingency plan should be designed to address the contingencies that create a likelihood of pain.
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The State did not do that. For instance, it has provided no contingency plan for treating complications arising out of IV access, including the numerous serious and painful complications of central line access. Rather, the State apparently contemplates leaving the treatment of such complications – and the placement of an alternative IV line in the event that the first results in some complication – to inexperienced or untrained personnel. These personnel, however, need a contingency plan to guide them because they cannot rely on their experience in these situations.
The State has also offered no contingency plan for problems arising during the mixing of the drugs. Mixing problems have plagued previous executions, and a failure to prepare a proper dose of thiopental indisputably creates a likelihood of pain. Nonetheless, the State has not considered its course of action if confronted with foreseeable mixing failures, such as inability to dissolve the thiopental. See Heath Decl. ¶¶ 38. The State’s failure to offer a contingency plan regarding the mixing not only fails to comply with the Court’s Order but is appalling in light of the numerous mixing problems that have already come to light in this case.
2. The State’s Proposal Creates an Unnecessary Risk of Pain. The State’s failure to plan for contingencies creates an unnecessary risk of pain, because it forces personnel to confront difficulties that arise with ad hoc improvisation, rather than informed, careful decision making.9 F. Auditing Process. 1. The State’s Proposed Protocol Does Not Comply with the Order. The Court required the State to put in place an auditing process to ensure that the individuals carrying out the execution procedure are correctly following the protocol. See Order
9 The above examples of contingencies not accounted for in the proposed protocol are not meant to be an exclusive list. It is the State’s duty to gain the expertise necessary to anticipate the range of foreseeable contingencies and adequately provide for them.
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at 15. The State’s proposal does not ensure that the execution team will correctly follow the protocol. The State only offers ex post measures that require the execution team, after the procedure, to verify they have taken certain steps; it does nothing to ensure that the personnel will properly follow the protocol during an execution. Effective auditing requires a rigorous, onthe-scene system of checks and balances. See Heath Decl. ¶ 39. Only with contemporaneous oversight can the State be sure that execution personnel be constrained to perform their tasks properly and safely. Otherwise, a single individual can subvert the entire process and cause an inhumane execution, whether through error or malice. Indeed, experience in this case should demonstrate that ex post documentation of aspects of the procedure provide no constraint or assurance as to the performance of the execution. The “Chemical Log” referenced in the State’s protocol has been used in previous executions, but was insufficient to ensure that the execution team prepared and injected the correct dose of thiopental, or even provide the State with any knowledge of what doses were prepared. See Doe I Depo. Tr. at 9-10, 14, 24-25. Disturbingly, despite this previous experience, the State has offered no procedural change that would render these ex post logs sufficient to guard against departures from the stated protocol.10
Additionally, the proposed protocol may retain John Doe I as part of the execution team. Given his track record of error and misrepresentations, and the extreme extent to which the execution team deferred to him, it is doubtful whether any execution procedure that includes John Doe I, without oversight by a doctor to whom he would report and defer, could provide meaningful, contemporaneous checks and balances that ensure that the procedure goes as planned and as stated. Certainly, the State has provided no basis for such confidence.
10 Indeed, while deviations from the protocol are to be reported to the Director of Department of Corrections, see Defs. Mem. at 4, the proposal does not even indicate that such deviations would lead to changes in the procedure or disciplinary measures against those individuals responsible for the departure.
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2. The State’s Proposal Creates an Unnecessary Risk of Pain. The State’s failure to put in place sufficient auditing processes creates an unnecessary risk of pain, because it fails to provide sufficient guarantees that the execution procedure will be followed as planned. G. Changes to the Lethal Injection Procedure. Finally, this Court ordered that after its approval, “no further changes shall be made to the lethal injection protocol without seeking the prior approval of this Court.” Order at 15. The proposed protocol, however, operates at such a broad level of generality that the State could make any number of changes in its actual practices without altering the language of the protocol. As noted above, in several instances, the State makes vague assertions about how it will carry out the executions -- with “sufficient” lighting, “appropriate” catheter sites, etc. -- but provides little or no detail as to the particulars. Because the State offers so little detail, it leaves itself enough leeway to make changes within the scope of its proposed protocol without having to seek approval from this Court. In other words, were this Court to approve the instant proposal, the State would have free rein to make significant changes without judicial oversight.
* * * * * The State’s proposal does not comply with this Court’s Order, and the alternatives it proposes are inadequate and give rise to an unnecessary risk of unconstitutional pain and suffering. The proposal is also exceedingly vague on many points. This vagueness makes it impossible to determine what the State is planning to do. It also results in inadequate instructions on how to perform complicated tasks, a failing that is particularly troublesome in light of Missouri’s failure to identify qualified personnel. The purpose of having a written protocol is to provide step-by-step instructions that are binding on execution team members in
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order to ensure that executions are “carried out consistently,” with no ad hoc improvisations “at a moment’s notice.” Order at 11. This would serve to protect the inmate and the State from the deviations and poor judgment that have marred executions in the past.
Creating a safe execution protocol that does not risk unnecessary pain requires careful analysis of each element of the procedure individually and in coordination with the others. Quite simply, the State has not invested the thoughtful consideration necessary to create a safe, humane procedure. II. THIS COURT SHOULD REJECT THE STATE’S CHALLENGE TO ITS
REQUIREMENT THAT AN ANESTHESIOLOGIST PARTICIPATE IN THE LETHAL INJECTION PROCEDURE. The Order required that a board-certified anesthesiologist take part in the State’s lethal injection procedure. The State admits that it has been “unable to comply with the Court’s direction” in this regard. Defs. Mem at 4. The State’s proposal, thus, is in essence a motion for reconsideration, contending that this Court erred in requiring an anesthesiologist. Id. at 6. There is no legitimate basis for reconsideration here. The thrust of the State’s argument is that because it has so far been unable to identify a board-certified anesthesiologist willing to participate in its execution procedure, it should be excused from that requirement. As an initial matter, though, the State plainly has not exhausted all avenues for compliance with the Order. It has sent form letters to 298 board-certified anesthesiologists – out of the over 39,000 in the country – and has not yet found a willing participant. See Moore Aff. ¶¶ 2-3; http://www.asahq.org/aboutAsa/membership.htm. The State does not explain why it has apparently not considered other means of recruiting an anesthesiologist, such as employing medical recruiters. Indeed, the State’s insistence that it will be impossible for it to comply rings especially hollow in light of a survey indicating that 19% of
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all doctors indicated willingness to personally take part in lethal injection procedures. See
Physicians’ Willingness To Participate in the Process of Lethal Injection for Capital
Punishment, Ann. Intern. Med. 2001 Nov. 20, Exh. 5 to Heath Decl.; Heath Decl. ¶¶ 43-45.
Even more to the point -- and contrary to the State’s contention -- this Court’s
requirement of an anesthesiologist does not bar implementation of the death penalty in Missouri.
See Defs. Mem. at 6. There are methods of execution that do not require an anesthesiologist.
Indeed, the State itself identifies one of those methods, when it notes that the Morales court
offered the option of execution by a properly administered massive dose of a barbiturate
“without any direction that a doctor be present.” Id. at 7 (citing Morales v. Hickman, 415 F.
Supp. 2d 1037, 1047 (N.D. Cal. 2006)). Plaintiff himself has also suggested this method. See
Plaintiff’s Pretrial Br. at 10. The State is thus flatly mistaken when it claims the Order imposes an insurmountable bar to carrying out the death penalty.11 Instead, this Court merely required
what was evident at trial: that if the State chooses to inject potassium chloride, then it must use a
board certified anesthesiologist. Nothing, however, requires the State to continue to use the
problematic three-chemical sequence it has selected.
* * * * *
For the foregoing reasons, this Court should reject the State’s proposed protocol.
11 In arguing that this Court committed “legal error” in requiring an anesthesiologist, the State misconceives the nature of the Court’s decision. The Court found that the execution procedure violated the Eighth Amendment because it exposed prisoners to an unnecessary risk of pain. Order at 13. The Court then fashioned a remedy, including the use of an anesthesiologist, that it found was “necessary to ensure that lethal injections are carried out humanely.” Id. The cases cited by the State are thus inapposite, as those decisions all found that the execution procedures at issue did not present an unnecessary risk of pain. Because no Eighth Amendment violation was found in those states, the courts in those cases issued no remedy and, accordingly, declined to order the participation of an anesthesiologist. See Bieghler v. State, 839 N.E. 691, 696 (Ind. 2005) (no showing of an “unacceptable risk of . . . wanton infliction of pain”); Evans v. Saar, 412 F. Supp. 519, 524 (D. Md. 2004) (no “substantial and unnecessary risks intrinsic to the procedure”).
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/s/ JOHN WILLIAM SIMON JOHN WILLIAM SIMON
J.D., PH.D.
2683 South Big Bend Blvd, # 12 St. Louis, Missouri 63143-2100 (314) 645-1776 FAX (314) 645-2125

Respectfully submitted,
/s/ DONALD B. VERRILLI, JR.
DONALD B. VERRILLI, JR. MATTHEW S. HELLMAN GINGER D. ANDERS ERIC BERGER
JENNER & BLOCK LLP 601 13th Street NW Washington, DC 20005 (202) 639-6000 FAX: (202) 661-4983

Counsel for Plaintiff

Dated this 24th day of July, 2006.

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Certificate of Service I hereby certify a true and correct copy of the foregoing via the electronic filing system of the Western District of Missouri this twenty-fourth day of July, 2006, to the offices of:
Michael Pritchett, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, Missouri 65102
/s/ Matthew S. Hellman Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR )

)

Plaintiff,

)

vs.

)

)

LARRY CRAWFORD, et al.,

)

)

Defendants.

)

______________________________)

No. 05-4173-CV-W-FJG

DECLARATION OF DR. MARK HEATH
1. Counsel for Mr. Taylor have asked me to comment on the proposed execution protocol submitted by the Department of Corrections (“DOC”) on July 14, 2006. I read the judge’s decision of June 26, 2006, and then I reviewed the DOC’s new protocol. I think that the judge proposed an effective means of addressing the concerns about the practice of lethal injection in Missouri, but I do not believe that the DOC has listened to what the judge said or proposed an alternative remedy that is as good as what the judge proposed.
2. At the risk of repeating myself, it appears to me that the DOC in the past has not performed executions with the gravity, seriousness and care that ought to be observed. I do not see any attempt to make a clear break with their past systems and process in this proposed protocol. Instead, it appears to me that the DOC intends to keep as much of its previous procedure in place as is possible. Indeed, John Doe I may still run the execution process. The protocol as written also creates a significant and needless risk that the inmate will not be properly anesthetized prior to the administration of pancuronium and potassium.
I. The Requirement of a Board-Certified Anesthesiologist
3. The Court’s Order of July 26, 2006 required that a board-certified anesthesiologist participate in executions by preparing and mixing the chemicals, determining the appropriate means of IV access, supervising or administering the injection, and verifying and certifying that, in the anesthesiologist’s medical judgment, the inmate is sufficiently anesthetized prior to the administration of pancuronium and potassium.
4. I believe that a protocol containing these safeguards, and requiring that they be properly executed by a competent board-certified anesthesiologist with the ability and intent to physically examine the inmate, would reasonably minimize the risk that an inmate would be aware during the administration of the pancuronium and potassium. So long as potassium is used to cause

death, it is necessary to induce general anesthesia before injecting the potassium. A boardcertified anesthesiologist has the advanced training necessary to allow him or her, using proper techniques, to ensure that general anesthesia has been successfully induced.
5. The court’s requirement of a board-certified anesthesiologist to monitor anesthetic depth satisfies the standard of care that anesthesiologists and veterinarians agree is absolutely necessary when potassium is used to cause death. Dr. Orin Guidry, the president of the American Society of Anesthesiologists, recently published his observations regarding anesthesiologist participation in lethal injection, stating: “If the courts demand that inmates be sufficiently anesthetized, then I would have to agree with the court that the only way to assure that 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. I don’t think that any of us would want to say that untrained individuals under current death chamber conditions can reliably produce a satisfactory level of unconsciousness.” (Dr. Guidry’s letter is attached as Exhibit 1.)
6. The 2000 Report of the Panel on Euthanasia of the American Veterinary Medical Association reaches the same conclusion. In discussing euthanizing animals using potassium chloride, the Report states: “It is of utmost importance that personnel performing this technique are trained and knowledgeable in anesthetic techniques, and are competent in assessing anesthetic depth appropriate for administration of potassium chloride intravenously. Administration of potassium chloride intravenously requires animals to be in a surgical plane of anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of response to noxious stimuli.” (Page 681, attached as Exhibit 2.)
7. I feel that it is necessary to note here that whenever one hires a doctor, one must take precautions to make sure that the doctor, in addition to being trained and board-certified, is also competent and will perform his or her duties in good faith. For instance, if the DOC were to hire an anesthesiologist who has been barred from practice, for example for incompetence or commission of a felony, or states that he believes inmates should be subject to excruciating pain, then I would be concerned that that doctor’s participation in the execution procedure would create a significant risk that the inmate would suffer during the procedure. As the DOC has not yet found an anesthesiologist, however, this concern is purely theoretical at this point.
8. In sum, while no complex endeavor can be completely risk-free, I believe that the Court’s requirement that a board-certified anesthesiologist monitor anesthetic depth prior to the administration of pancuronium and potassium will properly safeguard the inmate’s and State’s interest in a humane execution. By contrast, the DOC’s proposed protocol does not provide these safeguards. Further, it appears that the DOC does not understand the need for these safeguards even after being informed about them during the hearings.
II. The Execution Protocol Submitted by the DOC
9. The execution protocol submitted by the DOC on July 14, 2006, fails to ensure that executions in Missouri are performed humanely. The DOC has chosen to execute prisoners by means of potassium, which everyone agrees requires the induction and maintenance of general anesthesia until the time of death. While the DOC’s attempt to provide some form of monitoring
2

of anesthetic depth is a positive step, the monitoring contemplated is not meaningful, especially in light of the fact that the monitoring will not be performed by a board-certified anesthesiologist. Overall, the protocol is deficient in a number of respects, including its reliance on inadequately trained personnel, failure to provide meaningful monitoring of anesthetic depth, failure to provide specific instructions on a number of issues, and failure to anticipate a number of foreseeable contingencies.
A. Inadequately Trained Personnel
10. The execution protocol provides that “a physician, nurse, or emergency medical technician” will insert the IV lines, monitor the prisoner’s anesthetic depth, and supervise the injection.
11. Physicians, nurses, and EMTs generally do not have any training in inducing general anesthesia. It is my understanding, based on my review of the protocol, that the DOC does not intend to require that the particular physician, nurse, or EMT who participates in executions have any training or background in the induction of general anesthesia.
12. As I testified at trial, inducing general anesthesia, and verifying that a patient has reached a surgical plane of anesthesia, is a complex task that requires the integration of multiple modalities of information. To perform this task reliably and properly, a person must have extensive training in the medical subspecialty of Anesthesiology. It is also necessary to have current and practical experience in monitoring patients’ anesthetic depth (such as an anesthesiologist would gain during his or her training and residency) in order to be able to reliably discern when a patient has been insufficiently anesthetized. Doctors who are not anesthesiologists, nurses, and EMTs do not, except in rare cases, have this advanced training or experience.
13. Using personnel untrained in anesthesiology to induce general anesthesia and monitor anesthetic depth is not consistent with the standard of care in Missouri or elsewhere. In the medical context, only a fully trained anesthesiologist should supervise or perform the induction and maintenance of general anesthesia in a surgical setting; other doctors, nurses, and EMTs would not be credentialed (i.e., permitted by the hospital) to do so.
14. Not only does the protocol contemplate using medical personnel who have no background or training in anesthesia, but it is unclear whether these personnel would receive any instruction in how to perform the monitoring techniques required by the protocol (testing for physical movement, eyelash reflex, etc.). The protocol is noticeably silent regarding whether this type of instruction will take place, and if so, who will provide the instruction. Thus, the personnel asked to perform the monitoring may have absolutely no understanding of what they are supposed to do or what observations they need to make. A “crash course” on using specific methods of testing anesthetic depth would not substitute for the years of extensive training and practice that inform an anesthesiologist’s exercise of medical judgment.
B. Inadequate Monitoring of Anesthetic Depth
15. The monitoring provided by the DOC’s protocol is not an adequate substitute for using a board-certified anesthesiologist to ascertain and monitor anesthetic depth. In this respect, the
3

protocol fails to provide any reasonable assurance that inmates will be properly anesthetized prior to the administration of the pancuronium and potassium.
16. There are many useful tests, techniques, and monitors that anesthesiologists use in their assessment of anesthetic depth. It is important to understand that the ability to effectively and accurately use these techniques can only be developed through extensive clinical training in the field of anesthesiology. I note that while a board-certified anesthesiologist would be able to use his or her medical judgment to determine what techniques to use to monitor anesthetic depth, the DOC has had to specify what techniques will be used because it seeks to use personnel who have no background in anesthesiology that they can bring to bear on the situation. This is why the judge’s order makes logical sense: rather than prescribing what tests should be used, he specified that an anesthesiologist should determine what to do using his or her training and judgment.
17. This point is underscored by the litigation preceding the Brown execution in North Carolina, in which the state proposed to substitute a BIS monitor for a professional assessment of anesthetic depth. Virtually everyone, including the medical director of the manufacturer of the BIS monitor and the American Society of Anesthesiologists (ASA), agreed that the BIS monitor cannot substitute for an anesthesiologist who, relying on multiple streams of information and their extensive training and experience, carefully synthesizes information to assess anesthetic depth. Only Dr. Dershwitz seemed to believe otherwise. The ASA’s Practice Advisory for Intraoperative Awareness and Brain Function Monitoring is attached as Exhibit 3 (see pages 1415, 21-22 for a discussion of the BIS monitor).
18. The protocol provides that the physician, nurse, or EMT will monitor anesthetic depth using “standard clinical techniques, such as checking for movement, opened eyes, eyelash reflex, pupillary responses or diameters, and response to verbal commands and physical stimuli.” This language is lifted from the ASA Practice Advisory on Intraoperative Awareness. (See Exhibit 3, Part III.A.) This is particularly troubling because this document is intended for use by individuals who are trained and proficient in the administration and maintenance of general anesthesia. See Exhibit 3, Part D, p.4. It is not intended as a substitute for training and experience in anesthesiology, nor is it possible for any document or any set of documents or books to substitute for such training. The assessment of anesthetic depth, like driving or flying, is something that can only be learned from experience and practice. One cannot just “do a test”; one has to know which tests to perform, how to perform them, how to interpret them, and how to integrate the results with other streams of real-time data to form an impression or conclusion about anesthetic depth. Learning how to assess anesthetic depth requires formal anesthesia training from individuals who are themselves proficient in the assessment of anesthetic depth. The training necessarily includes extensive clinical experience in which anesthetic depth is assessed over and over again on many patients until one develops the intuitive capacity for doing it accurately and properly.
19. Not surprisingly, the DOC has misinterpreted the ASA guidelines. In addition to listing some of the “clinical techniques used to assess intraoperative consciousness,” the ASA advisory mentions “conventional monitoring systems” that include “ASA standard monitoring.” The audience for whom the Practice Advisory was written understands that “standards for basic anesthetic monitoring” include the measurement of blood pressure. See ASA Standards for Basic Anesthetic Monitoring, attached as Exhibit 4. No anesthesiologist would plan to monitor
4

anesthetic depth (as is necessary during the execution until the prisoner is dead) without measuring the blood pressure. The DOC’s proposed protocol does not list this, because the DOC does not understand what is involved in assessing anesthetic depth, and it believes that assessing anesthetic depth is a simple matter that can be conveyed in a few short sentences.
20. Obviously the DOC is now, on the basis of the above criticism, going to revise the protocol by adding the measurement of blood pressure to their laundry list of tests. But this does not address the overarching problem, which is that the DOC believes that it can, without the onsite “in-the-room” supervision of an anesthesiologist, reliably and meaningfully assess (and if needed deepen) anesthetic depth. The very fact that it would propose that these tests be done by personnel untrained in anesthesiology shows that they do not understand what is at stake here.
21. For these reasons, the set of tests listed in the protocol is incomplete and inadequate. In my opinion, an anesthesiologist participating in an execution and exercising his or her medical judgment regarding how to verify and monitor anesthetic depth, given the execution set-up and the chemicals used, would not be satisfied or willing to proceed if they were restricted to this set of tests.
22. Any monitoring of anesthetic depth must test whether the inmate has reached a surgical plane of anesthesia. Some of the techniques listed in the proposed protocol are useful only for testing whether the inmate has reached a relatively shallow plane of anesthesia (an inmate might not respond correctly to verbal commands, and thus appear unconscious according to this technique, yet still be sufficiently aware to suffer when the potassium is injected). It is simply impossible to use personnel untrained in anesthesia to perform some or all of the listed tests, without any understanding of what information each technique can provide and how each fits in to the broad suite of assessment techniques, and gain any assurance that the inmate is in fact sufficiently anesthetized.
23. Moreover, the tests, taken together, are not sufficient to guarantee that the inmate remains sufficiently anesthetized until death. Once the pancuronium paralyzes the inmate, any assessment of anesthetic depth -- which remains necessary because the inmate could regain consciousness before the potassium is injected -- must take into account the fact that the inmate could not respond to stimuli or indicate distress even if he were fully conscious. Verifying the anesthetic depth of an individual paralyzed by pancuronium requires the assessment of extremely subtle indicators of consciousness that do not rely on the activity of facial muscles or any other motor responses. The DOC has not attempted to provide techniques for post-pancuronium monitoring, and obviously untrained personnel do not have any of the experience necessary to perform this type of monitoring.
C. Inadequate Provisions for Obtaining IV Access
24. As I testified during the hearing, successfully and humanely achieving IV access is a crucial element of a humane execution protocol. The provisions regarding IV access set forth in the DOC’s new protocol do not, in my opinion, adequately ensure that the process of inserting the IV will be humane, or that the IVs placed will be sufficiently reliable to ensure successful delivery of the chemicals.
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25. The Court’s order contemplates that the anesthesiologist will have the authority to determine “the most appropriate location on the inmate’s body to inject the drugs.” I believe that the judge envisions that a board-certified anesthesiologist will exercise his or her medical judgment to determine what catheter location is medically indicated (and therefore “appropriate”), rather than choosing the catheter site based on non-medical considerations. I was concerned that John Doe I stated that he chose to use central lines in part based on the warden’s desire to have a rapid execution, rather than on sound medical considerations. As a result of this, he ended up obtaining IV access in a manner that is not used as the first choice in any other setting, medical or execution, because it is much more invasive, painful, and risky. The judge’s order is therefore a major improvement over the past practice of automatically placing a central line.
26. The protocol submitted by the DOC simply states that “medical personnel determine the most appropriate locations for” the IV lines. This vague language raises several concerns. It is not clear whether the most appropriate location will be chosen based on medical considerations, or on non-medical factors, such as penological and aesthetic concerns. For instance, John Doe I indicated that he used femoral catheterization, even though it was not medically indicated, in order to ensure that the injections could be performed very quickly.
27. The protocol also does not specify which medical personnel will be given authority to decide where to place the catheter. If John Doe I continues to participate in the execution process, I am extremely concerned that he will continue to insert central lines as a matter of course, because, as I testified during the hearing, his medical judgment during executions was in my opinion, rather poor. Moreover, nurses and EMTs do not determine whether to place central lines except in emergent circumstances and, depending on the individual nurse or EMT, may not be competent to make such a decision.
28. If sound medical judgment has determined that a central line is needed, it is also appropriate for a properly trained person to determine which kind of central line to use. Each type of central line (jugular, subclavian, femoral) has its own risks, its own benefits, and its own set of known complications. All types of central lines can lead to catastrophic bleeding. Placing a jugular line risks puncturing or lacerating the carotid artery, a not-infrequent complication, which could lead to a hematoma that obstructs the airway and causes death by asphyxiation if untreated. A massive stroke and paralysis could result from decreased blood flow in the carotid artery. Placing a subclavian line can also cause a pneumothorax, which is a collection of air inside the chest but outside the lungs. This can cause an agonizing death by asphyxiation and cardiovascular collapse. All of these complications are more likely to occur, and less likely to be adequately treated, if the catheterization is performed by personnel who are inadequately trained or inexperienced.
29. Nor does the protocol state whether the execution team will ensure that it has the equipment that is necessary to place central lines and deal with the potential complications of central lines. It is very important that any personnel placing a central line have the equipment necessary to react to the foreseeable complications that are known to arise, many of which are both excruciatingly painful and agonizing. Subclavian lines, for instance, require a bed that can tilt (lowering the head relative to the feet distends the subclavian vein so that the needle and catheter can enter the lumen) and the ability to place a chest tube should a pneumothorax occur.
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Personnel placing jugular lines must be prepared, among other things, to intubate the inmate if the airway is obstructed, and must have chest tube capability. In fact, John Doe I agreed that additional equipment was necessary for subclavian lines, and that the execution team was not equipped to place them (although this knowledge did not deter him from using a subclavian line at least once).
30. The protocol also does not specify when the determination as to where to place the catheter is made. If an inmate were examined days or weeks before the execution date, as is the practice in several other states, the determination could be made at that point, and the execution team could be prepared in advance if, for instance, it were decided that only a subclavian line would provide reliable venous access. In contrast, if the determination is made on the night of the execution, the decision to do a central line could necessitate ad hoc improvisation, particularly if the team does not have the equipment necessary to ensure that the procedure is performed safely.
31. The protocol also does not contain adequate provisions for ensuring the patency of the IV lines. As was the case before the Court’s order, the DOC intends to inject saline solution into the IV lines just after they are inserted to make sure that they have been inserted properly. There is no plan to monitor the patency of the IV lines during the injection process, however. It is standard medical practice to use an IV bag dripping saline or another solution in conjunction with the IV tubing used to deliver intravenous drugs because doing so enables medical personnel to ensure that fluids are properly flowing through the IV tubing. To my knowledge, this peculiar practice is not used in any other state. The use of the line without a drip was implemented by John Doe I, and so I am worried that the DOC’s failure to use an IV bag in the new protocol indicates that John Doe I is still basically in charge of the procedure.
32. The judge commented in his order that the DOC needs to institute contingency plans to provide for foreseeable problems (such as leaking, infiltration, etc.). I completely agree with this. As the above discussion indicates, the DOC has not thought through a number of contingencies that could arise with respect to IV access, including the need to place a central line and failure of one IV line during the injection process. Not to belabor the point, but if a person trained in anesthesia were involved, it would be much less necessary to “game out” all of the contingencies, because that is an inherent and core feature of anesthesiology training.
D. Other Inadequacies in the Protocol
33. I have discussed above what I see as the major problems with the DOC’s failure to be responsive to the judge’s suggestions. In addition to these problems, there are a number of other unsatisfactory elements of the proposed protocol. The DOC has failed to provide specific instructions with regard to a number of additional issues. This may indicate that the DOC has failed to think through a number of aspects of the execution process, or it may reflect an assumption that execution personnel will improvise or use their discretion in a number of areas, much like what has occurred at previous executions. Either possibility is very concerning.
34. The lack of specific instructions is problematic for a number of reasons. Allowing unchecked discretion to any inadequately qualified individual or group of individuals can lead to errors in judgment and unjustifiable deviations from stated procedures, resulting in increased risk
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to the inmate. John Doe I’s questionable decisions with regard to aspects of the execution process demonstrate this point. In addition, when untrained or unqualified personnel are given roles in the execution procedure -- though I repeat that they should never be used to assess anesthetic depth in an execution -- increased detail and instructions are necessary to ensure that they can simply follow the steps provided without being forced to exercise their discretion.
35. Following are examples of areas in which the protocol is vague or incomplete.
36. Mixing the Thiopental. The protocol does not provide any instructions as to how the thiopental will be mixed. Most nurses and EMTs have little to no experience mixing anesthetic drugs, and would therefore need detailed instructions to guide them. The instructions provided in the package insert are insufficient in the execution context. Thiopental is generally packaged in 500-mg kits, and the kits are designed so that a medical professional can mix a single clinical dose of thiopental using the materials in the kit. The proposed protocol requires deviating from the instructions in the package insert, which addresses only the preparation of a standard individual dose of 500 mg or less, but does not give concrete mechanical instructions for doing so.
37. Such instructions would protect the inmate from the possibility of ad hoc deviations like those resorted to by John Doe I. He testified that he had created a mixing procedure because the thiopental kits procured by the DOC contained ready-made syringes that already contained the thiopental powder, and were not designed for creating a single overdose of thiopental. This scenario could easily arise again, and the need for untrained personnel to improvise a mixing process could lead to confusion, mistakes, and inability to prepare the full dose of anesthetic. John Doe I’s mixing procedure, for instance, did not allow him to prepare the full five-gram dose of thiopental. This is a foreseeable situation and the protocol ought to address it.
38. Nor does the protocol provide any course of action if the execution team is unable to dissolve the thiopental in the diluent. Obviously, this contingency is foreseeable because, based on the testimony, it appears to have occurred in the past. Although the DOC states that the explanation for that problem was the high concentration used by John Doe I, I testified that there are other causes of insolubility, including that the thiopental was defective. The DOC has no way of knowing which explanation is correct, given its failure to collect toxicology data from executed inmates, without testing the thiopental. The DOC should not simply hope and assume that this problem will not recur.
39. Auditing Process. The judge’s order discusses an auditing process to correct the previous failure to institute any checks and balances before, during, or after the execution. I think this is an important step because I believe that people will be more motivated to perform executions in a considered, thoughtful, and humane manner if they know that they are being observed. Although the protocol provides that DOC officials will sign off on the chemical log after each execution, there are no on-the-scene checks and balances that can prevent mistakes from occurring during an execution. As I testified at trial, a system of “checks and balances” is critical to ensuring that no one person, whether through inadvertent error or bad faith, can thwart efforts to perform executions humanely.
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40. In addition, the protocol states that the medical personnel will complete a “Chemical Log” indicating the quantities of chemicals used and discarded during the execution. As John Doe I testified, however, the document currently used by the DOC as a “Chemical Log” is not designed to allow personnel to record the quantities of chemicals discarded or actually used. Is the DOC going to prepare a new chemical log form? Or are they simply going to continue using the old one? Again, it appears that the DOC simply has not thoroughly considered the need for a means of accurately recording the amounts of chemicals used.
41. Lighting. The Court’s order specified that the execution support room should be sufficiently lighted to allow the execution team to see clearly while they perform their tasks. Corrections officials stated that the level of lighting in the execution support room was designed to protect their legitimate interest in obscuring the identities of the execution team, and the interest in ensuring a humane execution by using sufficient lighting is somewhat in tension with the team’s security interest. The new protocol states only that the lighting in the execution support room will be “sufficient” to “permit proper administration of the chemicals.” It is therefore unclear to me whether and how the DOC plans to resolve the tension described above, and whether the DOC intends to increase the lighting in the support room. I think that the level of lighting should be set by an anesthesiologist, who, based on their clinical experience and practice, knows the level of illumination that is necessary for them to do their job.
42. In his decision, the judge indicated that the new protocol should “specify . . . how the anesthesiologist will certify that the inmate has achieved the appropriate anesthetic depth.” I think this is a good suggestion, but the DOC appears not to be interested in following it. No provision is made for communicating to the executioners the medical personnel’s conclusion as to whether the inmate is anesthetized. Failing to instruct team members as to how to communicate vital information to each other, and to institute procedures for ensuring that information is communicated accurately, increases the risk of miscues and errors.
III. The DOC’s Failure to Recruit an Anesthesiologist
43. Another issue that warrants discussion is the DOC’s approach to recruiting an anesthesiologist to participate in executions. My understanding of the judge’s order was that the state was required to design a procedure incorporating an anesthesiologist by July 15, but was not required to find an anesthesiologist in this time period. Recruiting is necessarily a somewhat time-consuming process, and clearly the ethical dimensions of participation in executions will somewhat narrow the field of candidates. I would not expect that the State would be able to find an anesthesiologist within the three weeks between the order and the July 15 deadline. Rather, I thought the point of the judge’s order was that the State would specify in the protocol that there would be a central role for an anesthesiologist, but that the DOC would not need to identify who would fill that role until an execution approached.
44. Despite the ethical issues that surround this, the reality is that there are many physicians, including anesthesiologists, who, at a personal level, are comfortable with participation in executions. This opinion is backed up by published literature. In an article entitled “Physicians’ attitudes about involvement in lethal injection for capital punishment,” attached hereto as Exhibit 4, Neil Farber and colleagues surveyed physicians in 2000 and found that 34% approved of eight actions related to the conduct of lethal injection, including actually injecting the drugs. (Arch.
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Intern. Med. 2000 Oct. 23; 160(19):2912-6). In a related study, Farber and colleagues found that 25% of physicians would personally perform five or more actions intrinsic to the conduct of lethal injection. (“Physicians’ willingness to participate in the process of lethal injection for capital punishment,” Ann. Intern. Med. 2001 Nov. 20; 135(10):884-8, attached hereto as Exhibit 5.) Nineteen percent of responding physicians stated that they would personally administer the lethal drugs. While the survey did not specifically target anesthesiologists, I have no reason to believe that the attitude of anesthesiologists would depart markedly from the attitudes of physicians in general.
45. The survey data strongly suggest that, of the several tens of thousands of anesthesiologists in the United States, some significant minority would be willing to participate in executions in the manner envisioned by the court’s order. Thus, it appears to me that the DOC has not meaningfully explored the possibility of recruiting an anesthesiologist. While I am not involved in the recruiting side of the medical profession, I do believe that simply sending out 298 letters of the type sent by the DOC would foreseeably fail to attract candidates.
IV. Conclusion
46. I am concerned that the DOC believes that its proposed protocol is adequate, and that it reasonably ensures that this important procedure is performed in a humane and dignified fashion. It appears that the DOC did not understand or appreciate the important issues that were being discussed during the hearing. Overall, the problem is that the DOC does not understand that if pancuronium and potassium are used, an anesthesiologist is necessary to assess anesthetic depth. The procedures proposed by the DOC do not come close to satisfying the standard of care that must be observed whenever a person is subjected to an excruciatingly painful procedure.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Dated: July 24, 2006

__________________________ Mark Heath, M.D.

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Practice Advisory for Intraoperative Awareness and Brain Function Monitoring A Report by the American Society of Anesthesiologists Task Force on Intraoperative Awareness* PRACTICE advisories are systematically developed reports that are intended to assist decision-
making in areas of patient care. Advisories provide a synthesis and analysis of expert opinion,
clinical feasibility data, open forum commentary, and consensus surveys. Advisories are not
intended as standards, guidelines, or absolute requirements. They may be adopted, modified, or
rejected according to clinical needs and constraints.
The use of practice advisories cannot guarantee any specific outcome. Practice advisories
summarize the state of the literature and report opinions derived from a synthesis of task force
members, expert consultants, open forums and public commentary. Practice advisories are not
supported by scientific literature to the same degree as are standards or guidelines because sufficient
numbers of adequately controlled studies are lacking. Practice advisories are subject to periodic
revision as warranted by the evolution of medical knowledge, technology, and practice.
Methodology A. Definitions Intraoperative awareness under general anesthesia is a rare occurrence, with a reported incidence
of 0.1-0.2%.1-4 Significant psychological sequelae (e.g., post traumatic stress disorder) may occur
following an episode of intraoperative awareness, and affected patients may remain severely disabled
* Developed by the American Society of Anesthesiologists Task Force on Intraoperative Awareness: Jeffrey L. Apfelbaum, M.D., (Chair), Chicago, Illinois; James F. Arens, M.D., Houston, Texas; Daniel J. Cole, M.D., Phoenix, Arizona; Richard T. Connis, Ph.D., Woodinville, Washington; Karen B. Domino, M.D., Seattle, Washington; John C. Drummond, M.D., San Diego, California; Cor J. Kalkman, M.D., Ph.D., Utrecht, the Netherlands; Ronald D. Miller, M.D., San Francisco, California; David G. Nickinovich, Ph.D., Bellevue, Washington; and Michael M. Todd, M.D., Iowa City, Iowa.
Supported by the American Society of Anesthesiologists under the direction of James F. Arens, M.D., Chair, Committee on Practice Parameters. A list of the references used to develop this Advisory is available by writing to the American Society of Anesthesiologists.
Address reprint requests to the American Society of Anesthesiologists: 520 N. Northwest Highway, Park Ridge, Illinois 60068-2573

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
for extended periods of time.5 However, in some circumstances, intraoperative awareness may be unavoidable in order to achieve other critically important anesthetic goals.
The following terms or concepts discussed in this Advisory include: consciousness, general anesthesia, depth of anesthesia or depth of hypnosis, recall, amnesia, intraoperative awareness, and brain function monitors. Consistent definitions for these terms are not available in the literature. For purposes of this Advisory, these terms are operationally defined or identified as follows:
(1) Consciousness: Consciousness is a state in which a patient is able to process information from his or her surroundings. Consciousness is assessed by observing a patient’s purposeful responses to various stimuli. Identifiers of purposeful responses include organized movements following voice commands or noxious/painful stimuli.† For example, opening of the eyes is one of several possible identifiers or markers of consciousness. Purposeful responses may be absent when paralysis is present as a consequence of neurological disease or the administration of a neuromuscular blocking drug.
(2) General anesthesia: General anesthesia is defined as a drug-induced loss of consciousness during which patients are not arousable, even by painful stimulation.‡ The ability to maintain ventilatory function independently is often impaired. Patients often require assistance in maintaining a patent airway, and positive pressure ventilation may be required because of depressed spontaneous ventilation or drug-induced depression of neuromuscular function. Cardiovascular function may be impaired.
(3) Depth of anesthesia: Depth of anesthesia or depth of hypnosis refers to a continuum of progressive central nervous system depression and decreased responsiveness to stimulation.
† Reflex withdrawal from a painful stimulus is NOT considered a purposeful response, as indicated by the “continuum of depth of sedation, definition of general anesthesia, and levels of sedation/analgesia;” American Society of Anesthesiologists, 2004. ‡ American Society of Anesthesiologists: Continuum of depth of sedation, definition of general anesthesia, and levels of sedation/analgesia;” ASA Standards, Guidelines and Statements, 2004.
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
(4) Recall: For the purpose of this Advisory, recall is the patient’s ability to retrieve stored memories. Recall is assessed by a patient’s report of previous events, in particular, events that occurred during general anesthesia. Explicit memory is assessed by the patient’s ability to recall specific events that took place during general anesthesia. Implicit memory is assessed by changes in performance or behavior without the ability to recall specific events that took place during general anesthesia that led to those changes.6 A report of recall may be spontaneous or it may only be elicited in a structured interview or questionnaire. This Advisory does not address implicit memory.
(5) Amnesia: Amnesia is the absence of recall. Many anesthetic drugs produce amnesia at concentrations well below those necessary for suppression of consciousness. Anterograde amnesia is intended when a drug with amnestic properties is administered before induction of anesthesia. Retrograde amnesia is intended when a drug such as a benzodiazepine is administered after an event that may have caused or been associated with intraoperative consciousness in the hope that it will suppress memory formation and “rescue” from recall.
(6) Intraoperative awareness: Intraoperative awareness occurs when a patient becomes conscious during a procedure performed under general anesthesia and subsequently has recall of these events. For the purpose of this Advisory, recall is limited to explicit memory, and does not include the time before general anesthesia is fully induced or the time of emergence from general anesthesia, when arousal and return of consciousness are intended. Dreaming is not considered intraoperative awareness.
(7) Brain function monitors: Brain function monitors are devices that record or process brain electrical activity and convert these signals mathematically into a continuous measure typically scaled from 0 to 100. In addition to spontaneous cortical electrical activity (electroencephalogram, EEG), these devices may also record and process evoked cortical and
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
subcortical activity (auditory evoked potentials, or AEP) as well as electromyographic (EMG) activity from scalp muscles. For the purpose of this Advisory, only monitors purported to measure depth of anesthesia or hypnosis will be considered. Other, non-EEG/AEP/EMG devices are also available, but are not addressed by this Advisory. B. Purposes of the Advisory Intraoperative awareness under general anesthesia is an important clinical problem that clearly is within the foundation of training and continuing medical education in anesthesiology. The purposes of this Advisory are to identify risk factors that may be associated with intraoperative awareness, provide decision tools that may enable the clinician to reduce the frequency of unintended intraoperative awareness, stimulate the pursuit and evaluation of strategies that may prevent or reduce the frequency of intraoperative awareness, and provide guidance for the intraoperative use of brain function monitors as they relate to intraoperative awareness. C. Focus This Advisory focuses on the perioperative management of patients who are undergoing a procedure during which general anesthesia is administered. This Advisory is not intended for the perioperative management of minimal, moderate, or deep sedation in the OR or ICU; regional or local anesthesia without general anesthesia; monitored anesthesia care; tracheal intubation of patients or those undergoing resuscitation in emergency trauma after the administration of a neuromuscular block, or intentional intraoperative wake-up testing (e.g., for the purposes of assessing intraoperative neurologic function). In addition, this Advisory is not intended to address the perioperative management of pediatric patients. D. Application This Advisory is intended for use by anesthesiologists, other physicians who supervise the administration of general anesthesia, and all other individuals who administer general anesthesia.
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
The Advisory may also serve as a resource for other physicians and health care professionals who are involved in the perioperative management of patients receiving general anesthesia.
E. Task Force Members and Consultants The American Society of Anesthesiologists (ASA) appointed this Task Force of 10 members to (1) review and assess the currently available scientific literature on intraoperative awareness, (2) obtain expert consensus and public opinion, and (3) develop a practice advisory. The Task Force is comprised of anesthesiologists from various geographic areas of the United States, an anesthesiologist from the Netherlands, and two methodologists from the ASA Committee on Practice Parameters. The ASA appointed the 10 members to the Task Force because of their knowledge or expertise in the medical specialty of anesthesiology, and the development of practice parameters. The members include but are not limited to anesthesiologists with specialized knowledge or expertise in the area of neuroanesthesiology. Two of the 10 members disclosed receipt of funds from or a financial interest in a company developing or manufacturing brain function monitors, which companies have a direct financial interest in the expanded use of such monitors. Other members may have received funds from or have a financial interest in other companies, such as developers or manufacturers of anesthetics, that may be indirectly affected by the expanded use of brain function monitors. The Task Force did not request its members to disclose such interests because they were deemed too remote and speculative to present conflicts of interest. The Task Force, in turn, sought input from consultants, many of whom who had particularized knowledge, expertise and/or interest in intraoperative awareness and brain function monitors. Such knowledge or expertise is based in part in some cases on research or investigational activities funded by a company developing or manufacturing brain function monitors. Fifty-four percent of the consultants disclosed receipt of funds from or a financial interest in a company developing or
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
manufacturing brain function monitors. Consultants also may have received funds from or have a financial interest in other companies that may be indirectly affected by the use of brain function monitors. The Task Force did not request its consultants to disclose such interests because they were deemed too remote and speculative to present conflicts of interest.
The Task Force used a six-step process. First, the members reached consensus on the criteria for evidence of effective perioperative interventions for the prevention of intraoperative awareness. Second, they evaluated original articles published in peer-reviewed journals relevant to this issue. Third, consultants who had expertise or interest in intraoperative awareness and who practiced or worked in diverse settings (e.g., scientists and/or physicians in academic and private practice) were asked to participate in opinion surveys on the effectiveness of various perioperative management strategies, and to review and comment on a draft of the Advisory developed by the Task Force. Fourth, additional opinions were solicited from a random sample of active members of the ASA. Fifth, the Task Force held open forums at three national and international anesthesia meetings to solicit input on the key concepts of this Advisory. Sixth, all available information was used to build consensus within the Task Force on the Advisory.
The draft document was made available for review on the ASA website, and commentary was invited via e-mail announcement to all ASA members. All submitted comments were considered by the Task Force in preparing the final draft.
F. Availability and Strength of Evidence Practice advisories are developed by a protocol similar to that of an ASA evidence-based practice guideline, including a systematic search and evaluation of the literature. However, practice advisories lack the support of a sufficient number of adequately controlled studies to permit aggregate analyses of data with rigorous statistical techniques such as meta-analysis. Nonetheless, literature-based evidence from case reports and other descriptive studies are considered during the
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
development of the Advisory. This literature often permits the identification of recurring patterns of

clinical practice.

As with a practice guideline, formal survey information is collected from consultants and

members of the ASA. The following terms describe survey responses for any specified issue.

Responses are solicited on a 5-point scale; ranging from 1 (strongly disagree) to 5 (strongly agree)

with a score of 3 being equivocal. Survey responses are summarized based on median values as

follows:

Strongly Agree:

Median score of 5 (At least 50% of the responses are 5)

Agree:

Median score of 4 (At least 50% of the responses are 4 or 4 and 5)

Equivocal:

Median score of 3 (At least 50% of the responses are 3, or no other

response category or combination of similar categories contain at least

50% of the responses)

Disagree:

Median score of 2 (At least 50% of responses are 2 or 1 and 2)

Strongly Disagree: Median score of 1 (At least 50% of responses are 1)

Additional information is obtained from open forum presentations and other invited and public

sources. The advisory statements contained in this document represent a distillation of the current spectrum of clinical opinion and literature-based findings.§

Advisories I. Preoperative Evaluation A preoperative evaluation includes (1) obtaining a focused history (i.e., medical records,
laboratory reports, patient or patient and family interview), (2) conducting a physical examination, (3) identifying patients at risk for intraoperative awareness (e.g., planned anesthetics, type of surgery), and (4) informing selected patients of the possibility of intraoperative awareness.
Descriptive studies and case reports suggest that certain patient characteristics may be associated with intraoperative awareness, including age, gender, ASA status, and drug resistance or tolerance.4,7-
§ Refer to appendix 1 for a summary of the advisories. 7

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
11 Descriptive studies and case reports suggest that certain procedures (e.g., cesarean section, cardiac surgery, trauma surgery) 4,8,12-29 as well as anesthetic techniques (e.g., rapid-sequence induction, reduced anesthetic doses with or without the presence of paralysis)2,3,9,13,16,21, 23,30-33 may be associated with an increased risk of intraoperative awareness. No studies were found that examined the clinical impact of informing the patient prior to surgery of the possibility of intraoperative awareness.
The consultants and ASA members agree that a preoperative evaluation may be helpful in identifying patients at risk for intraoperative awareness.** In addition, they agree that a focused preoperative evaluation to identify patients at risk of intraoperative awareness should include review of a patient’s medical record, a thorough physical examination, and a patient or patient and family interview. They agree that patient characteristics that may place a patient at risk for intraoperative awareness include: substance use or abuse, limited hemodynamic reserve, and ASA status of 4 or 5. The consultants strongly agree and the ASA members agree that a history of intraoperative awareness may place a patient at risk. The consultants disagree and the ASA members are equivocal regarding whether all patients should be informed of the possibility of intraoperative awareness. The consultants strongly agree and the ASA members agree that only patients considered to be at elevated risk of intraoperative awareness should be informed of the possibility of intraoperative awareness. Finally the consultants and the ASA members disagree that informing the patient preoperatively of the risk of intraoperative awareness increases the actual risk of intraoperative awareness.
Advisory. The Task Force believes that some components of the preoperative evaluation may be useful in identifying a patient at increased risk for awareness. An evaluation should include, if possible, a review of a patient’s medical records for previous occurrences of awareness or other potential risk factors, a patient interview to assess level of anxiety or previous experiences with anesthesia, and a physical examination. Potential risk factors to consider for patients undergoing
** Refer to appendix 2 for complete results of the consultant and ASA membership surveys. 8

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
general anesthesia include substance use or abuse (e.g., opioids, benzodiazepines, cocaine), a history of awareness, a history of difficult intubation or anticipated difficult intubation, chronic pain patients on high doses of opioids, cardiac surgery, Cesarean section, trauma and emergency surgery, reduced anesthetic doses in the presence of paralysis, planned use of muscle relaxants during the maintenance phase of general anesthesia, total intravenous anesthesia, the planned use of nitrous oxide-opioid anesthesia, ASA status of 4 or 5, and limited hemodynamic reserve. The consensus of the Task Force is that patients whom the individual clinician considers to be at substantially increased risk of intraoperative awareness should be informed of the possibility of intraoperative awareness when circumstances permit.
II. Preinduction Phase of Anesthesia Issues concerned with the preinduction phase of anesthesia related to the prevention of intraoperative awareness include checking the functioning of anesthesia delivery systems, and the prophylactic administration of benzodiazepines. Although checking the functioning of anesthesia delivery systems is standard practice, some cases of intraoperative awareness have resulted from too low concentrations of inspired volatile anesthetics or drug errors, including drug delivery errors.8,34-39 One double-blind randomized clinical trial evaluated the efficacy of the prophylactic administration of midazolam as an anesthetic adjuvant during ambulatory procedures under total intravenous anesthesiaand reported a lower frequency of intraoperative awareness in the midazolam groups compared to the placebo group.40 Two randomized clinical trials examined anterograde amnesia by providing pictures as stimuli after administration of midazolam but before induction of general anesthesia. Although these studies reported reduced recall in patients administered midazolam, the presence of consciousness during general anesthesia and subsequent intraoperative awareness was not examined.41,42
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
The consultants and ASA members strongly agree that the functioning of anesthesia delivery systems (e.g., vaporizers, infusion pumps, fresh gas flow, IV lines) should be checked to reduce the risk of intraoperative awareness. The consultants disagree, and the ASA members are equivocal that a benzodiazepine or scopolamine should be used as a component of the anesthetic to reduce the risk of intraoperative awareness for all patients. The consultants agree that a benzodiazepine or scopolamine should be used for patients requiring smaller dosages of anesthetics, patients undergoing cardiac surgery, and patients undergoing trauma surgery. They are equivocal regarding patients undergoing Cesarean section, emergency surgery, and with total intravenous anesthesia. The ASA members agree that a benzodiazepine or scopolamine should be used for patients requiring smaller dosages of anesthetics, patients undergoing cardiac surgery, emergency surgery, trauma surgery, and total intravenous anesthesia. They are equivocal regarding patients undergoing Cesarean section.
Advisory. Since intraoperative awareness may be caused by equipment malfunction or misuse, the Task Force believes that there should be adherence to a checklist protocol for anesthesia machines and equipment to assure that the desired anesthetic drugs and doses will be delivered. These procedures should be extended to include verification of the proper functioning of intravenous access, infusion pumps and their connections. The Task Force consensus is that the decision to administer a benzodiazepine prophylactically should be made on a case-by-case basis for selected patients (e.g., patients requiring smaller dosages of anesthetics). The Task Force cautions that delayed emergence may accompany the use of benzodiazepines.
III. Intraoperative Monitoring Intraoperative awareness cannot be measured during the intraoperative phase of general anesthesia, since the recall component of awareness can only be determined postoperatively by obtaining information directly from the patient. Therefore, the primary issue regarding intraoperative
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
monitoring addressed by this Advisory is whether the use of clinical techniques, conventional monitoring systems, or brain function monitors reduce the occurrence of intraoperative awareness.
The majority of literature obtained during the search and review process did not directly address whether these techniques, systems, or monitors reduce the frequency of intraoperative awareness. However, many studies were found that report intraoperative measures or index values from monitoring activities. This literature, while not directly assessing the impact of an intervention on awareness, often reported patterns or values that occurred at identifiable times during the perioperative period with the intention of describing or predicting variations in the depth of anesthesia. Therefore, commonly reported findings from this literature are summarized below.
The literature for each intervention is presented in the following order: (1) randomized clinical trials, (2) nonrandomized comparative studies (e.g., quasi-experimental, prospective cohort studies), (3) correlational studies (e.g., correlations of index values with end-tidal concentrations of hypnotic drugs or with movement in response to noxious stimuli), (4) descriptive reports of monitor index values at particular times during a procedure; and (5) case reports of unusual or unintended benefits or harms occurring during a monitoring activity. Correlational studies often report a measure of association between two continuous variables (e.g., the correlation between index values and anesthetic drug concentrations). Other correlational measures include a prediction probability (Pk) value that provides a measure of how well a monitor or technique can differentiate between two different clinical states (e.g., response versus no response to verbal command).43 A Pk value of 1.0 indicates perfect association between an index value and a clinical state, while a Pk value of 0.50 indicates a prediction probability equal to chance.
A. Clinical Techniques and Conventional Monitoring: Among the clinical techniques utilized to assess intraoperative consciousness are checking for movement, response to commands, opened eyes, eyelash reflex, pupillary responses or diameters,
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
perspiration and tearing. Conventional monitoring systems include ASA standard monitoring†† as well as the end-tidal anesthetic analyzer.
No clinical trials or other comparative studies were found that examine the effect of clinical techniques or conventional monitoring on the incidence of intraoperative awareness. Correlational studies reported Pk values ranging from 0.74 to 0.76 for the association between reflex or purposeful movement and indicators for depth of anesthesia.44 One study reported a significant association between response to command and memory when continuous infusions of propofol were used as the induction anesthetic.45 Pk values for mean arterial pressure (MAP) ranged from 0.68 to 0.94 for distinguishing a responsive state from an unresponsive state, and from 0.81 to 0.89 for distinguishing an anesthetized state from emergence following anesthesia (i.e., first response). Pk values for heart rate (HR) ranged from 0.50 to 0.82 for distinguishing a responsive state from an unresponsive state, and from 0.54 to 0.67 for emergence.46-48 Wide ranges of mean MAP and HR values were reported during various intraoperative times. Studies reported ranges of mean MAP values as follows: before induction or baseline, 90 to 103 mmHg; at induction, 58.4 to 88 mmHg; during surgery, 78 to 102 mmHg; at emergence or end of surgery, 58.7 to 97 mmHg; and during postoperative recovery, 86 to 104mmHg. Mean HR ranges were reported as follows: before induction or baseline, 61 to 82 bpm; at induction, 55 to 67 bpm; during surgery, 74 to 82 bpm; at emergence or end of surgery, 59 to 92 bpm; and during postoperative recovery, 82 to 89 bpm.49-56 Awareness has been reported to occur in the absence of tachycardia or hypertension.8,23,24
The consultants and ASA members agree that clinical techniques (e.g., checking for purposeful or reflex movement) are valuable and should be used to assess intraoperative consciousness. In addition, the consultants and ASA members agree that conventional monitoring systems (e.g, ECG,
†† American Society of Anesthesiologists: Standards for basic anesthetic monitoring. In ASA Standards, Guidelines and Statements; American Society of Anesthesiologists Publication: October, 2004.
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
BP, HR, end-tidal anesthetic analyzer, capnography) are valuable and should be used to help assess intraoperative consciousness.
B. Brain Electrical Activity Monitoring: Most of the devices designed to monitor brain electrical activity for the purpose of assessing anesthetic effect record electroencephalographic (EEG) activity from electrodes placed on the forehead. Systems can be subdivided into those that process spontaneous EEG and electromyographic (EMG) activity and those that acquire evoked responses to auditory stimuli (auditory evoked potential, AEP). After amplification and conversion of the analog EEG signal to the digital domain, various signal processing algorithms are applied to the frequency, amplitude, latency and/or phase relationship data derived from the raw EEG or AEP to generate a single number, often referred to as an “index” typically scaled between 100 and zero. This index represents the progression of clinical states of consciousness (‘awake’, ‘sedated’, ‘light anesthesia’, ‘deep anesthesia’), with a value of 100 being associated with the awake state, and values of zero occurring with an isoelectric EEG (or absent middle latency AEP). These processing algorithms may either be published and in the public domain or proprietary. Detailed descriptions of the various approaches to EEG signal processing, including bispectral analysis may be found elsewhere.57 Artifact recognition algorithms intended to avoid contaminated, and therefore spurious, ‘index’ values are an important component of the software in most monitors.
Although EMG activity from scalp muscles can be considered an artifact from the viewpoint of pure EEG analysis, it may be an important source of clinically relevant information. Sudden appearance of frontal (forehead) EMG activity suggests somatic response to noxious stimulation resulting from inadequate analgesia and may give warning of impending arousal. For this reason, some monitors separately provide information on the level of EMG activity.
1. Spontaneous EEG Activity Monitors.
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
Bispectral Index. Bispectral index (BIS) is a proprietary algorithm (Aspect Medical Systems) that converts a single channel of frontal EEG into an index of hypnotic level (bispectral index; BIS). BIS is available either as a separate device (BIS monitor; Aspect Medical Systems) or incorporated - under license from Aspect Medical Systems - in ‘BIS modules’ made by various anesthesia equipment manufacturers. To compute the BIS, several variables derived from the EEG time domain (burst-suppression analysis), frequency domain (power spectrum, bispectrum: interfrequency phase relationships) are combined into a single index of hypnotic level. BIS values are scaled from 0 to 100, with specific ranges (e.g., 40-60) reported to reflect a low probability of consciousness under general anesthesia. The weight factors for the various components in the multivariate model that generates the BIS were empirically derived from a prospectively collected database of over 1500 anesthetics. The BIS model accounts for the nonlinear stages of EEG activity by allowing different parameters to dominate the resulting BIS as the EEG changes its character with increasing plasma concentrations of various anesthetics, resulting in a linear decrease in BIS. As more data have become available and as methods and algorithms to suppress artifacts have been improved, revised iterations of the algorithm and optimized hardware have been released.
Several RCTs have compared outcomes with BIS-guided anesthetic administration versus standard clinical practice without BIS. In one RCT that enrolled 2500 patients at high risk of intraoperative awareness, explicit recall occurred in 0.17% of patients when BIS monitors were used and in 0.91% of patients managed by routine clinical practice (p < 0.02).58 A small (N = 30) single-blinded RCT (i.e., the anesthesiologists were blinded to the recorded BIS values) compared BIS monitoring with clinical signs during cardiac surgery), and reported one episode of recall in the clinical signs group compared to no episodes in the BIS-monitored group (p > 0.50).59 In other RCTs, times to awakening, first response, or eye opening and consumption of anesthetic
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
drugs were reduced with the use of BIS.8,60-68 One nonrandomized comparison of the use of BIS monitoring versus a cohort of historical
controls (N = 12,771) found explicit recall occurring in 0.04% of the BIS monitored patients versus 0.18% of the historical controls (p < 0.038).68 Another prospective nonrandomized cohort study (N = 19,575) designed to establish the incidence of awareness with recall during routine general anesthesia and to determine BIS values associated with intraoperative awareness events reported no statistically significant difference when BIS was used (0.18% of patients) compared to when BIS was not used (0.10% of patients). Other nonrandomized comparative studies reported higher index values upon arrival in the PACU, shorter recovery times, and lower anesthetic usage among patients monitored with BIS compared to patients not monitored with BIS.70,71 Numerous correlational studies reported Pk values for BIS ranging from 0.72 to 1.00 for awake versus loss of response following induction with propofol (with or without opioids); and from 0.79 to 0.97 for anesthetized versus first response.46-48,72-78 One study reported a Pk value of 0.86 for movement from electrical stimulation.44 Wide ranges of mean BIS values have been reported during various intraoperative times. Ranges of mean BIS values were as follows: before induction or baseline, 80 to 98; at or after induction, 37 to 70; during surgery, 20 to 58; at emergence or end of surgery, 42 to 96; and during postoperative recovery, 64 to 96.50,51,54-56,79-110 Several case reports indicate that intraoperative events unrelated to titration of anesthetic agents can produce rapid changes in BIS values, e.g., cerebral ischemia or hypoperfusion, gas embolism, unrecognized hemorrhage, inadvertent blockage of anesthesia drug delivery.111-119 Other case reports suggest that routine intraoperative events (e.g., administration of depolarizing muscle relaxants, activation of electromagnetic equipment or devices, patient warming or planned hypothermia) may interfere with BIS functioning.120-128 Two case reports were found that reported patients experiencing intraoperative awareness in spite of monitored values indicating an
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
adequate depth of anesthesia.129,130 Finally, still other case reports suggested that certain patient conditions may affect BIS values.131-133
Entropy. Entropy (GE Healthcare Technologies) describes the irregularity, complexity, or unpredictability characteristics of a signal. A single sine wave represents a completely predictable signal (entropy = 0), whereas noise from a random number generator represents entropy = 1. The algorithm for calculation of entropy in the EEG signal (as incorporated in the Datex-Ohmeda S/5 entropy Module) is in the public domain and detailed descriptions have recently been published.134
Entropy is independent of absolute scales such as the amplitude or the frequency of the signal. The commercially available Datex-Ohmeda module calculates entropy over time windows of variable duration and reports two separate entropy values. State entropy (SE) is an index ranging from zero to 91 (awake), computed over the frequency range from 0.8 Hz to 32 Hz, reflecting the cortical state of the patient. Response Entropy (RE) is an index ranging from zero to 100 (awake) computed over a frequency range from 0.8 Hz to 47 Hz, containing the higher EMG-dominated frequencies, and will thus also respond to the increased EMG activity resulting from inadequate analgesia. No clinical trials or other comparative studies were found that examine the impact of entropy monitoring on the incidence of intraoperative awareness. One clinical trial reported reduced times to eye opening, response to command, and consumption of anesthetic drugs with the use of entropy monitoring.135
Correlational studies report the following Pk values for loss of consciousness: for RE, 0.83 to 0.97; for SE, 0.81 to 0.90.45,136-137 For anesthetized versus first response, the following Pk values are reported: for RE, 0.85; and for SE, 0.82.46 Ranges of mean RE and SE values were as follows: before induction or baseline, 98 (RE) and 89 to 91 (SE); during surgery, 34 to 52 (RE) and 50 to 63 (SE); and at emergence or end of surgery, 96 (RE) and 85 (SE).52,135,138,139
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
Narcotrend. The Narcotrend (MonitorTechnik) is derived from a system developed for the visual classification of the EEG patterns associated with various stages of sleep. After artifact exclusion and Fourier transformation, the original electronic algorithm classified the raw (frontal) EEG according to the following system: A (awake), B (sedated), C (light anesthesia), D (general anesthesia), E (general anesthesia with deep hypnosis), F (general anesthesia with increasing burst suppression). The system included a series of sub-classifications resulting in a total of 14 possible sub-stages: A, B0–2, C0–2, D0–2, E0–1, and F0–1.140 In the most recent iteration of the Narcotrend software (version 4.0), the alphabet-based scale has been “translated” into a dimensionless index, the Narcotrend index, scaled from zero (deeply anesthetized) to 100 (awake), with the stated intention of producing a scale quantitatively similar to the BIS index.
No clinical trials or other comparative studies were found that examine the impact of Narcotrend monitoring on the incidence of intraoperative awareness. One RCT has compared the use of Narcotrend-controlled versus clinically controlled anesthetic administration and found a shorter recovery time in the Narcotrend group (i.e., opened eyes) after termination of anesthesia.63 Pk values for Narcotrend ranged from 0.93 to 0.99 for awake versus loss of response following induction with propofol combined with an opioid, and from 0.94 to 0.99 for anesthetized versus first response.47,48 Reported mean Narcotrend values are as follows: after induction (loss of response), 72 to 80; and at emergence or end of surgery (spontaneously opened eyes), 80.73
Patient State Analyzer. The Patient State Index, or PSI (Physiometrix) is derived from a 4channel EEG. The derivation of the PSI is based on the observation that there are reversible spatial changes in power distribution of quantitative EEG at loss and return of consciousness. The Patient State Index (PSI) has a range of 0 to 100, with decreasing values indicating decreasing levels of consciousness or increasing levels of sedation, similar to BIS, Entropy and Narcotrend. The PSI algorithm was constructed using stepwise, discriminant analysis based on
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
multivariate combinations of quantitative EEG variables, derived after Fourier transformation of the raw EEG, and found to be sensitive to changes in the level of anesthesia.
No clinical trials or other comparative studies were found that examine the impact of PSI monitoring on the incidence of intraoperative awareness. One correlational study reported a Pk value of 0.70 for predicting response to command, with a sensitivity of 85.6% and specificity of 38.8%,77 and another study reported a significant correlation of the PSI with unconsciousness.141 Reported mean PSI values are as follows: before induction or baseline, 92; during surgery, 32; at emergence or end of surgery, 53; and during postoperative recovery, 81.141
SNAP index. The SNAPII (Everest Biomedical Instruments) calculates a “SNAP index” from a single channel of EEG. The index calculation is based on a spectral analysis of EEG activity in the 0-18 Hz and 80-420 Hz frequency ranges, and a burst suppression algorithm. There are no published data on the actual algorithm used to calculate the SNAP index, which is based on a composite of both low (0-40 Hz) and high (80-420 Hz) frequency components.
No clinical trials or other comparative studies were found that examine the impact of SNAP monitoring on the incidence of intraoperative awareness. One correlational study was found that reported a mean SNAP index of 71 to be predictive of a loss of consciousness in 95% of elective surgery patients.142
Danmeter Cerebral State Monitor/Cerebral State Index. The Danmeter CSM is a handheld device that analyzes a single channel EEG and presents a cerebral state ‘index’ scaled from 0-100. In addition, it also provides EEG suppression percentage and a measure of EMG activity (75-85 Hz).
No published literature was found that examined the impact of Danmeter CSM monitoring on the incidence of intraoperative awareness.
2. Evoked Brain Electrical Activity Monitors.
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
AEP Monitor/2 (Danmeter). Auditory evoked potentials (AEP) are the electrical responses of the brainstem, the auditory radiation and the auditory cortex to auditory sound stimuli (clicks) delivered via headphones. The effects of anesthetics on AEP have been studied since the early 1980s.143-145 The brainstem response is relatively insensitive to anesthetics while early cortical responses, known as the middle-latency AEP (MLAEP) change predictably with increasing concentrations of both volatile and intravenous anesthetics. The typical AEP response to increasing anesthetic concentrations is increased latency and decreased amplitude of the various waveform components. These signals are extremely small (less than one microvolt) necessitating extraction from the spontaneous EEG using signal averaging techniques. Prior to recent innovations, signal averaging was relatively time consuming (several minutes per averaged waveform). More recent signal filtering advances have resulted in an instrument (A-Line) that can record and rapidly update a single channel of AEP from forehead electrodes. From a mathematical analysis of the AEP waveform, the device generates an ‘AEP-index’ that provides a correlate of anesthetic concentration. The AEP index, or AAI, is scaled from 0 to 100. In contrast to many EEG indices, the AAI corresponding with low probability of consciousness is less than 25, rather than the higher numeric thresholds associated with the other monitors. The device is FDA approved but is not currently marketed in North America.
RCTs that compared MLAEP monitoring (e.g., to titrate anesthetics) to standard clinical practice without MLAEP reported reduced times to eye opening or orientation.63,64,146 A Pk value of 0.79 was reported for loss of eyelash reflex following induction with propofol and an opioid,74 and Pk values of 0.63 and 0.66 were reported for responsiveness following discontinuation of remifentanil or sevoflurane, respectively.147 One study reported a Pk value of 0.87 for movement,148 and another study reported a Pk value of 0.99 for awareness after LMA insertion,149 Descriptive studies reported ranges of mean values as follows: before induction or baseline, 73.5
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
to 85; at or after induction, 33.4 to 61; during surgery, 21.1 to 37.8; at emergence or end of surgery, 24.6 to 40; and during postoperative recovery, 89.7.74,80,144,150-151 C. Consultant and ASA Member Survey Findings. Consultants who participated in this Advisory typically either had a particular knowledge or an expressed interest in intraoperative awareness and brain function monitors. The majority of these consultants disclosed receipt of funds from or a financial interest in a company developing or manufacturing brain function monitors. Consultants were not asked to disclose similar relationships with other companies that may be indirectly affected by the use of brain function monitors. ASA members were randomly selected from a list of active members of the society. The consultants and ASA members disagree that a brain electrical activity monitor is valuable and should be used to reduce the risk of intraoperative awareness for all patients. The consultants and ASA members disagree that a brain electrical activity monitor is valuable and should be used to reduce the risk of intraoperative awareness for no patient. The consultants agree that a brain electrical activity monitor should be used for patients with conditions that may place them at risk, patients requiring smaller doses of general anesthetics, trauma surgery, Cesarean section, and total intravenous anesthesia. They are equivocal regarding the use of brain electrical activity monitoring for cardiac surgery and emergency surgery. The ASA members agree with the use of such monitors for patients with conditions that may place them at risk, patients requiring smaller doses of general anesthetics, and patients undergoing cardiac surgery. They are equivocal regarding the use of these monitors for patients undergoing Cesarean section, emergency surgery, trauma surgery, and total intravenous anesthesia. The consultants and ASA members disagree that a brain electrical activity monitor is valuable and should be used to assess intraoperative depth of anesthesia for all patients. The consultants and ASA members disagree with the statement that “a brain electrical activity monitor is valuable and
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
should be used to assess intraoperative depth of anesthesia for no patient.” The consultants agree that a brain electrical activity monitor should be used to assess intraoperative depth of anesthesia for selected patients. The ASA members agree with the use of brain electrical activity monitors for patients with conditions that may place them at risk and patients requiring smaller doses of general anesthetics. They are equivocal regarding the use of such monitors for patients undergoing cardiac surgery, Cesarean section, emergency surgery, trauma surgery, and total intravenous anesthesia.
Advisory. Intraoperative monitoring of depth of anesthesia, for the purpose of minimizing the occurrence of awareness, should rely on multiple modalities, including clinical techniques (e.g., checking for clinical signs such as purposeful or reflex movement) and conventional monitoring systems (e.g., ECG, BP, HR, end-tidal anesthetic analyzer, capnography). The use of neuromuscular blocking drugs may mask purposeful or reflex movements, and adds additional importance to the use of monitoring methods that assure the adequate delivery of anesthesia.
Brain function monitors are dedicated to the assessment of the effects of anesthetics on the brain, and provide information that correlates with some depth of anesthesia indicators, such as plasma concentrations of certain anesthetics (e.g., propofol). In general, the indices generated by these monitors vary in parallel with other established correlates of depth of anesthesia, although the values generated by individual devices in any given anesthetic state differ among the various monitoring technologies. In addition, the values generated by individual devices in the face of a given depth of anesthesia achieved by different combinations of anesthetic drugs (e.g., with or without opioids) will also differ. In other words, a specific numerical value may not correlate with a specific depth of anesthesia. Furthermore, the measured values do not have uniform sensitivity across different anesthetic drugs or types of patients. As with other monitors, common occurrences in the OR may introduce artifacts into the values derived by these monitors (e.g., electrocautery, lasers, warming devices).
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
The general clinical applicability of these monitors in the prevention of intraoperative awareness has not been established. While a single randomized clinical trial reported a decrease in the frequency of awareness in high-risk patients, there is insufficient evidence to justify a standard, guideline, or absolute requirement that these devices be used to reduce the occurrence of intraoperative awareness in high-risk patients undergoing general anesthesia. In addition, there is insufficient evidence to justify a standard, guideline, or absolute requirement that these devices be used to reduce the occurrence of intraoperative awareness for any other group of patients undergoing general anesthesia.
It is the consensus of the Task Force that brain function monitoring is not routinely indicated for patients undergoing general anesthesia, either to reduce the frequency of intraoperative awareness or to monitor depth of anesthesia. This consensus is based, in part, on the state of the literature and survey responses from the consultants and ASA membership, who generally disagree with the following statements: "Brain function monitors are valuable and should be used to reduce the risk of intraoperative awareness for all patients under general anesthesia," and "Brain function monitors are valuable and should be used when possible to assess intraoperative depth of anesthesia for all patients under general anesthesia" (see above and tables 1 and 2).
It is the consensus of the Task Force that the decision to use a brain function monitor should be made on a case-by-case basis by the individual practitioner for selected patients (e.g., light anesthesia). This consensus is based, in part, on the state of the literature and survey response patterns from consultants and ASA members regarding specific risk factors (see above and tables 1 and 2). The Task Force cautions that maintaining low brain function monitor values in an attempt to prevent intraoperative awareness may conflict with other important anesthesia goals (e.g., preservation of vital organ functions, minimizing the risks of aggravating existing co-morbidities 152). It is the opinion of the Task Force that brain function monitors currently have the status of the many
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
other monitoring modalities that are currently used in selected situations at the discretion of individual clinicians.
IV. Intraoperative and Postoperative Interventions Intraoperative and postoperative interventions include: (1) the intraoperative administration of benzodiazepines to patients who may have become conscious, (2) providing a postoperative structured interview to patients to define the nature of the episode after an episode of intraoperative awareness has been reported, (3) providing a postoperative questionnaire to patients to define the nature of the episode, and (4) offering postoperative counseling or psychological support. No studies were found that evaluated the efficacy of the intraoperative administration of benzodiazepines to patients who have unexpectedly become conscious in reducing the occurrence of awareness. Two randomized clinical trials examined retrograde amnesia by providing pictures as stimuli to awake patients before administration of midazolam and induction of general anesthesia. The studies reported no evidence of retrograde amnesia.41,42 However, these studies did not examine the effect of administering a benzodiazepine to patients after the apparent occurrence of consciousness during general anesthesia. Although several studies have applied structured interviews and questionnaires to obtain additional information about reported incidences of intraoperative awareness,4,11,26,28,153-157 no studies were found that demonstrated improvements in patient well-being or psychological state following such interactions. No studies were found that followed up on the efficacy of counseling or psychological support provided to patients who experienced a documented incidence of intraoperative awareness. The consultants are equivocal and ASA members agree that benzodiazepines or scopolamine should be administered intraoperatively to prevent awareness after a patient has unexpectedly become conscious. The consultants strongly agree, and the ASA members agree that, once an episode of
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
intraoperative awareness has been reported, a structured interview should be conducted to define the nature of the episode. Both the consultants and ASA members are equivocal regarding whether a questionnaire should be given to define the nature of the episode. The consultants strongly agree, and the ASA members agree that, in documented cases of intraoperative awareness, patients should be offered counseling or psychological support. Finally, the consultants strongly agree, and the ASA members agree that, in documented cases of intraoperative awareness, an occurrence report concerning the event should be completed for the purpose of quality management.
Advisory. The Task Force consensus is that the decision to administer a benzodiazepine intraoperatively after a patient unexpectedly becomes conscious should be made on a case-by-case basis. . This consensus is based, in part, on the state of the literature and on responses from the Consultants and ASA members who generally agree with the following statement: “Benzodiazepines or scopolamine should be administered intraoperatively to prevent awareness after a patient has unexpectedly become conscious.” However, the Task Force believes that evidence from the literature is not sufficient to provide guidance regarding this issue. Finally, the Task Force cautions that the use of scopolamine may result in unintended side-effects (e.g., emergence delirium).
Practitioners should speak with patients who report recall of intraoperative events to obtain details of the event and to discuss possible reasons for its occurrence.‡‡ A questionnaire or structured interview may be used to obtain a detailed account of the patient’s experience. Once an episode of intraoperative awareness has been reported, an occurrence report concerning the event should be completed for the purpose of quality management. Finally, the patient should be offered counseling or psychological support.
‡‡ Refer to the ASA Director of Communications at 847-825-5586 for further information and guidance. 24

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
Appendix 1: Summary of Practice Advisory
Preoperative Evaluation
• Review patient medical records for potential risk factors o Substance use or abuse o Previous episode of intraoperative awareness o History of difficult intubation or anticipated difficult intubation o Chronic pain patients on high doses of opioids o ASA status 4-5 o Limited hemodynamic reserve
• Interview patient o Assess level of anxiety o Obtain information regarding previous experiences with anesthesia
• Determine other potential risk factors o Cardiac surgery o Cesarean section o Trauma surgery o Emergency surgery o Reduced anesthetic doses in the presence of paralysis o Planned use of muscle relaxants during the maintenance phase of general anesthesia o Planned use of nitrous oxide-opioid anesthesia
• Patients whom the individual clinician considers to be at substantially increased risk of intraoperative awareness should be informed of the possibility of intraoperative awareness when circumstances permit
Preinduction Phase of Anesthesia
• Adhere to a checklist protocol for anesthesia machines and equipment to assure that the desired anesthetic drugs and doses will be delivered
• Verifiy the proper functioning of intravenous access, infusion pumps and their connections, including the presence of appropriate back-flow check valves
• The decision to administer a benzodiazepine prophylactically should be made on a case-bycase basis for selected patients (e.g., patients requiring smaller dosages of anesthetics)
Intraoperative Monitoring
• Use multiple modalities to monitor depth of anesthesia o Clinical techniques (i.e., checking for purposeful or reflex movement)  Neuromuscular blocking drugs may mask purposeful or reflex movement o Conventional monitoring systems (e.g., ECG, BP, HR, end-tidal anesthetic analyzer, capnography o Brain function monitoring  Not routinely indicated for general anesthesia patients  The decision to use a brain function monitor should be made on a case-by-case basis by the individual practitioner for selected patients (e.g., light anesthesia)
Intraoperative and Postoperative Management
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
• The decision to administer a benzodiazepine intraoperatively after a patient unexpectedly becomes conscious should be made on a case-by-case basis
• Speak with patients who report recall of intraoperative events to obtain details of the event and to discuss possible reasons for its occurrence
• A questionnaire or structured interview may be used to obtain a detailed account of the patient’s experience
• Once an episode of intraoperative awareness has been reported, an occurrence report concerning the event should be completed for the purpose of quality management
• Offer counseling or psychological support to those patients who report an episode of intraoperative awareness
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
Appendix 2: Literature Review and Consensus-Based Evidence
For this Advisory, a literature review was used in combination with opinions obtained from
experts and other sources (e.g., professional society members, open forums, web-based postings) to
provide guidance to practitioners regarding intraoperative awareness. Both the literature review and
opinion data were based on evidence linkages, consisting of directional statements about relationships
between specific perioperative interventions and intraoperative awareness. The interventions for the
evidence linkages are listed below:
Preoperative Evaluation Focused history (i.e., medical records, patient interview, physical exam) Patient characteristics associated with risk of awareness Procedures associated with higher risk of intraoperative awareness Anesthetic techniques may be associated with higher risk of intraoperative awareness Informing patients of the possiblity of intraoperative awareness
Preinduction Phase of Anesthesia Check anesthesia delivery systems to reduce errors Prophylactic administration of benzodiazepines as co-anesthetics
Intraoperative Monitoring Commonly used clinical techniques Conventional monitoring systems Brain function monitors Spontaneous electrical activity (EEG/EMG) Bispectral index (BIS) Danmeter Cerebral State Monitor/Cerebral State Index Entropy Narcotrend Patient state analyzer (PSA) SNAP index Evoked electrical activity (auditory evoked potential monitoring) AEP Monitor/2
Intraoperative and Postoperative Interventions Intraoperative use of benzodiazepines for unexpected consciousness Structured interview of patients who report recall of intraoperative events Questionnaire administered to patients who report recall of intraoperative events Patient counseling for patients who report recall of intraoperative events
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
A. State of the Literature. A study or report that appears in the published literature is included in the development of an advisory if the study: (1) is related to one of the specified linkage statements, (2) reports a finding or set of findings that can be tallied or measured (e.g., articles that contain only opinion are not included), and (3) is the product of an original investigation or report (i.e., review articles or followup studies that summarize previous findings are not included). For the literature review, potentially relevant studies were identified via electronic and manual searches of the literature. The electronic search covered a 40-year period from 1966 through 2005. The manual search covered a 36-year period of time from 1970 through 2005. Over 1500 citations were initially identified, yielding a total of 711 non-overlapping articles that addressed topics related to the evidence linkages and met our criteria for inclusion. Following review of the articles, 389 studies did not provide direct evidence, and were subsequently eliminated. A total of 322 articles contained direct linkage-related evidence. No evidence linkage contained enough studies with welldefined experimental designs and statistical information to conduct a quantitative analysis (i.e., metaanalysis). Interobserver agreement among Task Force members and two methodologists was established by interrater reliability testing. Agreement levels using a kappa (κ) statistic for two-rater agreement pairs were as follows: (1) type of study design, κ = 0.60 to 0.85; (2) type of analysis, κ = 0.60 to 0.93; (3) evidence linkage assignment, κ = 0.77 to 0.88; and (4) literature inclusion for database, κ = 0.76 to 1.00. Three-rater chance-corrected agreement values were: (1) study design, Sav = 0.82, Var (Sav) = 0.007; (2) type of analysis, Sav =0.73, Var (Sav) = 0.008; (3) linkage assignment, Sav = 0.69 Var (Sav) = 0.012; (4) literature database inclusion, Sav = 0.84, Var (Sav) = 0.014. These values represent moderate-to-high levels of agreement.
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
The primary focus of this Advisory was to examine studies with hypothesis-driven research designs, such as RCTs, that examined the effect of an intervention (such as a brain function monitor) on reducing the occurrence or frequency of intraoperative awareness. To date, only two randomized controlled trials were found that reported intraoperative awareness as the primary study endpoint.55,56 Additional controlled trials will be necessary before data from published literature can be aggregated to provide a basis for quantitative evidence (i.e., meta-analysis).
Several other RCTs were reviewed that reported primary outcomes other than intraoperative awareness, including emergence time, consumption of anesthetic drugs and recovery characteristics. In addition, many other published studies applied non-hypothesis driven research designs to obtain non-causal or indirect data. For example, descriptive literature (i.e., reports of frequency or incidence) may provide an indication of the scope of the problem. Correlational or predictive data provides information regarding the direction and strength of association of values obtained from patient monitoring devices with other intraoperative measures such as blood concentrations of anesthetic drugs, time to loss of eyelash reflex, and time to awakening. Case reports are typically employed as a forum for reporting and recognizing unusual or unintended benefits or harms. Often, case reports, as well as descriptive or correlational data provide useful hypotheses-generating information that may stimulate additional causal examination of the topic of intraoperative awareness.
Future studies should focus on prospective methodologies, when possible, that utilize traditional hypothesis testing techniques. Use of the following methodological procedures for assessing the impact of interventions for intraoperative awareness is recommended: (1) comparison studies assessing the efficacy of one technique versus other techniques; (2) random assignment to treatment groups with blinding if appropriate; and (3) full reporting of sample size, effect size estimates, test scores, measures of variability, and p-values. The Task Force recognizes that conducting such
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
studies may be difficult and expensive, because intraoperative awareness is a very low incidence event. The required sample size for a RCT to test the impact of an intervention (e.g., brain function monitor) on the incidence of intraoperative awareness is invariably large. The Task Force also recognizes that, with low incidence data, a difference in the recording of one or two cases of intraoperative awareness can affect the statistical significance of study findings.
Limiting the study to patient subgroups thought to have a higher risk for intraoperative awareness (e.g., cardiac surgery, cesarean section, emergency trauma surgery) may allow for a smaller sample size and provide useful information regarding these subgroups. However, the Task Force recognizes that the generalizability of these findings to the larger population of general anesthesia patients may be limited.
B. Consensus-Based Evidence. Consensus was obtained from multiple sources, including: (1) survey opinion from Consultants who were selected based on their knowledge or expertise in intraoperative awareness, (2) survey opinions from a randomly selected sample of active members of the American Society of Anesthesiologists, (3) testimony from attendees of three open forums held at national anesthesia meetings,§§ (4) internet commentary, and (5) Task Force opinion and interpretation. The survey rate of return was 60% (N = 57/95) for Consultants, and 30% (N=151/500) for the ASA membership. Survey results are presented in the text of the document and in tables 1 and 2. Ninety-one percent of the consultants and 72% of the ASA members indicated that they had personally used a brain function device in the past. Fifty-seven percent of the consultants indicated that they make use in their current practice of a brain function device either always (11.1%), frequently (20.4%), or sometimes (25.9%). Thirty-six percent of the ASA members
§§ American Society of Anesthesiologists, Annual Meeting, October 25, 2004 in Las Vegas, NV; International Anesthesia Research Society, 79th Clinical and Scientific Congress, March 12, 2005 in Honolulu, HI; and Association of University Anesthesiologists 52nd Annual Meeting, May 6, 2005 in Baltimore, MD.
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
indicated that they make use in their current practice of a brain function device either always (6.0%), frequently (13.4%), or sometimes (16.8%).
The Consultants were also asked to indicate which, if any, of the evidence linkages would change their clinical practices if the Advisory was instituted (table 3). The rate of return was 18% (N = 17/95). The percent of responding Consultants expecting no change associated with each linkage were as follows: preoperative evaluation - 82%; informing patients of the possibility of intraoperative awareness - 65%; check anesthesia delivery systems - 94%; prophylactic use of benzodiazepines as co-anesthetics - 100%; use of clinical techniques to monitor for intraoperative awareness - 94%; use of conventional monitoring systems to monitor for intraoperative awareness - 100%; use of brain function monitors to monitor for intraoperative awareness - 59%; intraoperative use of benzodiazepines for uuunexpected consciousness - 100%; use of a structured interview for patients who report recall of intraoperative events - 41%; use of a questionnaire for patients who report recall of intraoperative events - 53% and counseling for patients who report recall of intraoperative events 76%. Seventy-one percent of the respondents indicated that the Advisory would have no effect on the amount of time spent on a typical case. Four respondents (24%) indicated that there would be an increase in the amount of time they would spend on a typical case with the implementation of this Advisory. The amount of increased time anticipated by these respondents ranged from 1 to 20 minutes.
31

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.

Table 1. Consultant Survey Responses ***
Preoperative evaluation: 1. Helpful to identify pts at risk of intraoperative awareness

Percent Responding to Each Item

Strongly

Strongly

N Agree Agree Uncertain Disagree Disagree

57 31.6 43.9* 7.0

10.5

7.0

2. A preop eval should include:
Review of medical records A physical examination A patient/family interview
3. Potential patient risk factors:

48 41.7 45.8* 4.2

6.3

2.1

47 21.3 34.0* 17.0

25.5

2.1

48 39.6 35.4* 14.6

8.3

2.1

Substance use or abuse Pt history of intraop awareness

54 38.9 42.6* 5.6

13.0

0.0

55 52.7* 29.1 10.9

7.3

0.0

Limited hemodynamic reserve ASA status of 4 or 5

54 38.9 40.7* 13.0

7.4

0.0

54 24.1 48.1* 20.4

7.1

0.0

4. Procedures/ anesthetic techniques that may place a patient at risk for intraop awareness:

Cesarean section under GA, cardiac

surgery, trauma, emergency surgery

57 75.4* 24.6 0.0

0.0

0.0

Planned use of reduced doses of

anesthetics in the presence of paralysis 56 66.1* 25.0 5.4

1.8

1.8

Planned use of muscle relaxants for maintenance

57 26.4 45.6* 8.8

17.5

1.8

Planned use of total intravenous anesthesia

57 10.5 33.3 24.6*

21.1

10.5

Planned use of volatile anesthetics

57 3.5 5.3 12.3

57.9*

21.1

Planned use of nitrous oxidenarcotic anesthesia

57 29.8 35.1* 14.0

19.3

1.8

Preoperative or intraoperative use of

beta-blockers under general anesthesia 57 5.3

35.1 26.3*

29.8

3.5

Rapid-sequence induction

57 5.3 29.8 19.3*

42.1

3.5

5. All pts should be informed of the possibility of intraop awareness

57 10.5 31.6 5.3

42.1*

10.5

6. Only patients considered to be at elevated

risk of intraop awareness should be

informed of the possibility of intraop

awareness

40 17.5 60.0* 5.0

7.5

10.0

*** N = the number of consultants who responded to each item. An astrisk beside a percentage score indicates the median.
32

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.

7. Informing the pt preoperatively of the risk of intraop awareness increases the actual risk of intraoperative awareness

Strongly

Strongly

N Agree Agree Uncertain Disagree Disagree

53 3.8 5.7 30.2

35.8*

24.5

Preinduction activities:

8. The functioning of anesthesia delivery

systems should be checked preoperatively

to reduce the risk of intraop awareness 57 77.2* 17.5 1.8

3.5

0.0

9. A benzodiazepine or scopolamine should be used as a component of the anesthetic to reduce the risk of intraop awareness:

For all patients under GA

54 7.4 24.1 1.9

33.3*

33.3

For no patients under GA

54 3.7 3.7 3.7

46.3*

42.6

For pts with conditions that may place

them at risk for intraop awareness

53 20.8 58.5* 7.5

7.5

5.7

For patients requiring smaller dosages of

general anesthetics (“light anesthesia”) 53 17.0 43.4* 11.3

20.8

7.5

For patients undergoing cardiac surgery 54 22.2 44.4* 11.1

16.7

5.6

For patients undergoing Cesarean section under GA

54 7.4 29.6 20.4*

31.5

11.1

For patients undergoing emergency surgery under GA

53 15.1 30.2 20.8*

28.3

5.7

For patients undergoing trauma surgery under GA

54 16.7 35.2* 20.4

22.2

5.6

For patients undergoing total intravenous anesthesia

54 16.7 31.5 18.5*

24.1

9.3

Intraoperative Monitoring:
10. Commonly used clinical techniques (e.g., checking for purposeful or reflex movement) are valuable and should be used to detect intraop consciousness

53 18.9

47.2* 5.7

18.9

9.4

11. Conventional monitoring systems are valuable and should be used to detect intraoperative consciousness

53 22.6 41.5* 5.7

24.5

5.7

33

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.

12. Brain function monitors are valuable and should be used to reduce the risk of intraoperative awareness:
For all patients under GA
For no patients under GA
For pts with conditions that may place them at risk for intraop awareness
For patients requiring smaller dosages of general anesthetics (“light anesthesia”)
For patients undergoing cardiac surgery
For patients undergoing Cesarean section under GA
For patients undergoing emergency surgery under GA
For patients undergoing trauma surgery under GA
For patients undergoing total intravenous anesthesia
13. Brain function monitors are valuable and should be used when possible to assess intraoperative depth of anesthesia:
For all patients under GA
For no patients under GA
For pts with conditions that may place them at risk for intraop awareness
For patients requiring smaller dosages of general anesthetics (“light anesthesia”)
For patients undergoing cardiac surgery
For patients undergoing Cesarean section under GA

Strongly N Agree Agree Uncertain Disagree

57 7.0 56 3.6

21.1 19.3 7.1 14.3

15.8* 35.7*

57 36.8 26.3* 14.0

14.0

56 26.8 32.1* 14.3

19.6

57 28.1 21.1 26.3*

14.0

57 31.6 21.1* 21.1

17.5

57 21.1 28.1 24.6*

17.5

57 26.3 24.6* 24.6

15.8

56 16.1 39.3* 23.2

14.3

56 12.5 21.4 10.7 54 9.3 5.6 9.3

14.3* 37.0*

56 33.9 30.4* 8.9

14.3

56 28.6 35.7* 10.7

10.7

56 26.8 28.6* 16.1

14.3

56 28.6 32.1* 12.5

12.5

Strongly Disagree
36.8 39.3
8.8
7.1 10.5 8.8 8.8 8.8 7.1
41.1 38.9
12.5
14.3 14.3 14.3

34

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.

For patients undergoing emergency surgery under GA
For patients undergoing trauma surgery under GA
For patients undergoing total intravenous anesthesia

Strongly

Strongly

N Agree Agree Uncertain Disagree Disagree

57 21.1 36.8* 10.5

17.5

14.0

57 22.8 38.6* 10.5

14.0

14.0

57 26.3 35.1* 17.5

8.8

12.3

Intraoperative & Postoperative Interventions:

14. Benzodiazepines or scopolamine should be

administered intraoperatively to prevent

awareness after a pt has unexpectedly

become conscious

57 21.1 26.3 15.8*

21.1

15.8

15. Once an episode of intraoperative awareness

has been reported, a structured interview

should be conducted to define the nature

of the episode

57 63.2* 31.5 1.8

0.0

0.0

16. Once an episode of intraop awareness

has been reported, a questionnaire

should be given to define the nature

of the episode

57 10.5 19.3 36.8*

28.1

5.3

17. Once an episode of intraop awareness

has been reported and documented,

the pt should be offered counseling

or psychological support

56 69.6* 25.0 5.4

0.0

0.0

18. Once an episode of intraop awareness

has been reported, an occurrence report

concerning the event should be completed

for the purpose of quality management 57 54.4* 40.4 0.0

5.3

0.0

35

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.

Table 2. ASA Member Survey Responses†††
Preoperative evaluation: 1. Helpful to identify pts at risk of intraoperative awareness

Percent Responding to Each Item

Strongly

Strongly

N Agree Agree Uncertain Disagree Disagree

146 27.4 46.6* 14.4

10.3

1.4

2. A preop eval should include:
Review of medical records A physical examination A patient/family interview

121 38.8 47.9* 7.4

5.0

0.8

118 23.7 37.3* 18.6

17.8

2.5

121 46.3 43.0* 6.6

3.3

0.8

3. Potential patient risk factors:
Substance use or abuse Pt history of intraop awareness Limited hemodynamic reserve ASA status of 4 or 5

147 31.3 44.2* 16.3

6.8

1.4

146 45.2 31.5* 11.0

11.6

0.7

145 46.3 38.6* 6.9

6.9

1.4

145 33.1 40.7* 11.0

13.1

2.1

4. Procedures/ anesthetic techniques that may place a patient at risk for intraop awareness:

Cesarean section under GA, cardiac

surgery, trauma, emergency surgery

151 70.2* 27.2 0.7

1.3

0.7

Planned use of reduced doses of

anesthetics in the presence of paralysis 148 48.6 44.6* 4.1

2.7

0.0

Planned use of muscle relaxants for maintenance

147 21.1 34.7* 16.3

26.5

1.4

Planned use of total intravenous anesthesia

146 13.0 26.7 24.0*

32.2

4.1

Planned use of volatile anesthetics

148 0.7 10.1 10.1

63.5*

15.5

Planned use of nitrous oxide-narcotic anesthesia

147 11.6 46.9* 18.4

19.7

3.4

Preoperative or intraoperative use of

beta-blockers under general anesthesia 148 4.7

31.1 23.0*

36.5

4.7

Rapid-sequence induction

148 3.4 31.1 18.9*

41.9

4.7

5. All pts should be informed of the possibility of intraop awareness

147 15.0 28.6 10.9*

40.1

5.4

6. Only patients considered to be at elevated risk of intraop awareness should be informed of the possibility of intraop awareness

112 17.0

49.1* 7.1

21.4

5.4

††† N = the number of members who responded to each item. An astrisk beside a percentage score indicates the median. 36

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.

7. Informing the pt preoperatively of the risk of intraop awareness increases the actual risk of intraoperative awareness

Strongly

Strongly

N Agree Agree Uncertain Disagree Disagree

147 2.7 10.9 33.3

38.8*

14.3

Preinduction activities:

8. The functioning of anesthesia delivery

systems should be checked preoperatively

to reduce the risk of intraop awareness 148 60.8* 37.8 0.7

0.7

0.0

9. A benzodiazepine or scopolamine should be used as a component of the anesthetic to reduce the risk of intraop awareness:

For all patients under GA

150 15.3 34.0 6.0*

30.7

14.0

For no patients under GA

144 0.7 2.8 3.5

50.7*

42.4

For pts with conditions that may place

them at risk for intraop awareness

148 37.8 56.1* 3.4

2.7

0.0

For patients requiring smaller dosages of

general anesthetics (“light anesthesia”) 150 31.3 60.7* 4.7

3.3

0.0

For patients undergoing cardiac surgery 147 39.5 48.3* 9.5

2.7

0.0

For patients undergoing Cesarean section under GA

151 13.2 23.2 27.8*

28.5

7.3

For patients undergoing emergency surgery under GA

151 21.1 42.4* 21.9

13.9

0.7

For patients undergoing trauma surgery under GA

150 24.0 44.7* 22.7

8.7

0.0

For patients undergoing total intravenous anesthesia

150 23.3 48.0* 14.0

12.7

2.0

Intraoperative Monitoring:

10. Commonly used clinical techniques

(e.g., checking for purposeful or reflex

movement) are valuable and should be

used to detect intraop consciousness

151 10.6 50.3* 21.2

13.9

4.0

11. Conventional monitoring systems are valuable and should be used to detect intraoperative consciousness

150 20.7 56.7* 9.3

10.7

2.7

37

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.

12. Brain function monitors are valuable and should be used to reduce the risk of intraoperative awareness:
For all patients under GA
For no patients under GA
For pts with conditions that may place them at risk for intraop awareness
For patients requiring smaller dosages of general anesthetics (“light anesthesia”)
For patients undergoing cardiac surgery
For patients undergoing Cesarean section under GA
For patients undergoing emergency surgery under GA
For patients undergoing trauma surgery under GA
For patients undergoing total intravenous anesthesia

Strongly N Agree Agree Uncertain Disagree

149 10.7 10.7 16.1 146 2.7 3.4 24.7

147 21.1 48.3* 19.0

147 19.7 148 20.3

38.8* 24.5 33.8* 30.4

148 12.8 34.5 25.0*

146 17.8 26.0 28.8*

148 18.9 29.7 28.4*

148 13.5 35.1 25.7*

37.6* 44.5* 10.2 13.6 12.2 23.0 24.0 19.6 20.3

Strongly Disagree
24.8 24.7 1.4 3.4 3.4 4.7 3.4 3.4 5.4

13. Brain function monitors are valuable and should be used when possible to assess intraoperative depth of anesthesia:

For all patients under GA

150 12.0 9.3 16.0

30.7*

32.0

For no patients under GA

147 2.7 4.8 24.5

41.5*

26.5

For pts with conditions that may place

them at risk for intraop awareness

148 20.3 43.2* 20.9

10.8

4.7

For patients requiring smaller dosages of

general anesthetics (“light anesthesia”) 149 20.1 37.6* 20.8

15.4

6.0

For patients undergoing cardiac surgery 149 20.1 27.5 28.2*

19.5

4.7

For patients undergoing Cesarean section under GA

149 13.4 30.2 22.8*

26.2

7.4

For patients undergoing emergency surgery under GA

149 14.8 26.8 24.8*

26.8

5.4

For patients undergoing trauma surgery under GA

149 16.1 28.9 25.5*

24.2

5.4

For patients undergoing total intravenous anesthesia

149 15.4 32.9 24.8*

20.1

6.7

38

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.

Intraoperative & Postoperative Interventions:
14. Benzodiazepines or scopolamine should be administered intraoperatively to prevent awareness after a pt has unexpectedly become conscious

Strongly N Agree Agree Uncertain Disagree

151 33.1 49.7* 9.9

7.3

Strongly Disagree
0.0

15. Once an episode of intraoperative awareness

has been reported, a structured interview

should be conducted to define the nature

of the episode

151 49.0 43.0* 7.3

0.7

0.0

16. Once an episode of intraop awareness

has been reported, a questionnaire

should be given to define the nature

of the episode

151 19.9 21.9 38.4*

18.5

1.3

17. Once an episode of intraop awareness

has been reported and documented,

the pt should be offered counseling

or psychological support

151 44.4 39.1* 14.6

1.3

0.7

18. Once an episode of intraop awareness

has been reported, an occurrence report

concerning the event should be completed

for the purpose of quality management 151 47.7 41.1* 9.3

1.3

0.7

39

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
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46. Schmidt G, Bischoff P, Standl T, Hellstern A, Teuber O, am Schulte Esch J: Comparative evaluation of the Datex-Ohmeda S/5 entropy module and the bispectral index monitor during propofol-remifentanil anesthesia. Anesthesiology 2004; 101:1283-1290
47. Schmidt GN, Bischoff P, Standl T, Jensen K, Voigt M, Schulte Am Esch J: Narcotrend and Bispectral index monitor are superior to classic electroencephalographic parameters for the assessment of anesthetic states during propofol-remifentanil anesthesia. Anesthesiology 2003; 99:1072-1077
48. Schmidt GN, Bischoff P, Standl T, Lankenau G, Hilbert M, Schulte am Esch J: Comparative evaluation of narcotrend, bispectral index, and classical electroencephalographic variables during induction, maintenance, and emergence of a propofol/remifentanil anesthesia. Anesth Analg 2004; 98:1346-1353
49. Atallah MM, el-Mohayman HA, el-Metwally RE: Ketamine-midazolam total intravenous anaesthesia for prolonged abdominal surgery. Eur J Anaesthesiol 2001; 18:29-35
50. Coste C, Guignard B, Menigaux C, Chauvin M: Nitrous oxide prevents movement during orotracheal intubation without affecting BIS value. Anesth Analg 2000; 91:130-135
51. Hackner C, Detsch O, Schneider G, Jelen-Esselborn S, Kochs E: Early recovery after remifentanil-pronounced compared with propofol-pronounced total intravenous anaesthesia for short painful procedures. Br J Anaesth 2003; 91:580-582
52. Iannuzzi M, Iannuzzi E, Rossi F, Berrino L, Chiefari M: Relationship between bispectral index, electroencephalographic state entropy and efect-site EC50 for propofol at different clinical endpoints. Br J Anaesth 2005; 94:613-16
53. Lehmann A, Zeitler C, Thaler E, Isgro F, Boldt J: Comparison of two different anesthesia regimens in patients undergoing aortocoronary bypass grafting surgery: sufentanil-midazolam versus remifentanil-propofol. J Cardiothorac Vasc Anesth 2000; 14:416-420
54. McCann ME, Brustowicz RM, Bacsik J, Sullivan L, Auble SG, Laussen PC: The bispectral index and explicit recall during the intraoperative wake-up test for scoliosis surgery. Anesth Analg. 2002; 94:1474-1478
55. McDonald T, Hoffman WE, Berkowitz R, Cunningham F, Cooke B: Heart rate variability and plasma catecholamines in patients during opioid detoxification. J Neurosurg Anesthesiol 1999; 11:195-199
56. Ting CK, Hu JS, Teng YH, Chang YY, Tsou MY, Tsai SK: Desflurane accelerates patient response during the wake-up test for scoliosis surgery. Can J Anesth 2004; 51:393-397
57. Rampil IJ: A primer for EEG signal processing in anesthesia. Anesthesiology 1998; 89:9801002
58. Myles PS, Leslie K, McNeil J, Forbes A, Chan MTV: Bispectral index monitoring to prevent awareness during anaesthesia: the B-aware randomised controlled trial. Lancet 2004; 363:1757-1763
42

The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
59. Puri GD, Murthy SS: Bispectral index monitoring in patients undergoing cardiac surgery under cardiopulmonary bypass. Eur J Anaesth 2003; 20:451-456
60. Bannister CF, Brosius KK, Sigl JC, Meyer BJ, Sebel PS: The effect of bispectral index monitoring on anesthetic use and recovery in children anesthetized with sevoflurane in nitrous oxide. Anesth Analg 2001; 92:877-881
61. Basar H, Ozcan S, Buyukkocak U, Akpinar S, Apan A: Effect of bispectral index monitoring on sevoflurane consumption. Eur J Anaesth 2003; 20:396-400
62. Gan TJ, Glass PS, Windsor A, Payne F, Rosow C, Sebel P, Manberg P: Bispectral index monitoring allows faster emergence and improved recovery from propofol, alfentanil, and nitrous oxide anesthesia. Anesthesiology 1997; 87:808-815
63. Kreuer S, Biedler A, Larsen R, Altmann S, Wilhelm W: Narcotrend monitoring allows faster emergence and a reduction of drug consumption in propofol-remifentanil anesthesia. Anesthesiology 2003; 99:34-41
64. Recart A, Gasanova I, White PF, Thomas T, Ogunnaike B, Hamza M, Wang A: The effect of cerebral monitoring on recovery after general anesthesia: a comparison of the auditory evoked potential and bispectral index devices with standard clinical practice. Anesth Analg 2003; 97:1667-1674
65. Song D, Joshi GP, White PF: Titration of volatile anesthetics using bispectral index facilitates recovery after ambulatory anesthesia. Anesthesiology 1997; 87:842-848
66. White PF, Ma H, Tang J, Wender RH, Sloninsky A, Kariger R: Does the use of electroencephalographic bispectral index or auditory evoked potential index monitoring facilitate recovery after desflurane anesthesia in the ambulatory setting? Anesthesiology 2004; 100:811-817
67. Wong J, Song D, Blanshard H, Grady D, Chung F: Titration of isoflurane using BIS index improves early recovery of elderly patients undergoing orthopedic surgeries. Can J Anaesth 2002; 49:13-18
68. Yli-Hankala A, Vakkuri A, Annila P, Korttila K: EEG bispectral index monitoring in sevoflurane or propofol anaesthesia: analysis of direct costs and immediate recovery. Acta Anaesthesiol Scand 1999; 43:545-549
69. Ekman A, Lindholm ML, Lennmarken C, Sandin R: Reduction in the incidence of awareness using BIS monitoring. Acta Anaesth Scand 2004; 48:20-26
70. Burrow B, McKenzie B, Case C: Do anaesthetized patients recover better after bispectral index Monitoring? Anaesth Intensive Care 2001; 29:239-245
71. Guignard B, Coste C, Menigaux C, Chauvin M: Reduced isoflurane consumption with bispectral index monitoring. Acta Anaesthesiol Scand 2001; 45:308-314
72. Glass PS, Bloom M, Kearse L, Rosow C Sebel P, Manberg P: Bispectral analysis measures sedation and memory effects of propofol, midazolam, isoflurane, and alfentanil in healthy individuals. Anesthesiology 1997; 86:836-837
73. Kreuer S, Bruhn J, Larsen R, Bialas P, Wilhelm W: Comparability of Narcotrend index and bispectral index during propofol anaesthesia. Br J Anaesth 2004; 93:235-240
74. Kreuer S, Bruhn J, Larsen R, Hoepstein M, Wilhelm W: Comparison of Alaris AEP index and bispectral index during propofol-remifentanil anaesthesia. Br J Anaesth 2003; 91:336-340
75. Lysakowski C, Dumont L, Pellegrini M, Clergue F, Tassonyi E: Effects of fentanyl, alfentanil, remifentanil and sufentanil on loss of consciousness and bispectral index during propofol induction of anaesthesia. Br J Anaesth 2001; 86:523-527
76. Schmidt GN, Bischoff P, Standl T, Issleib M, Voigt M, Schulte Am Esch J: ARX-derived auditory evoked potential index and bispectral index during the induction of anesthesia with propofol and remifentanil. Anesth Analg 2003; 97:139-144
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
77. Schneider G, Gelb AW, Schmeller B, Tschakert R, Kochs E: Detection of awareness in surgical patients with EEG-based indices—bispectral index and patient state index. Br J Anaesth 2003; 91:329-935
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80. Anderson RE, Barr G, Assareh H, Jakobsson J: The AAI index, the BIS index and end-tidal concentration during wash in and wash out of sevoflurane. Anaesthesia 2003; 58:531-535
81. Barvais L, Engelman E, Eba JM, Coussaert E, Cantraine F, Kenny GN: Effect site concentrations of remifentanil and pupil response to noxious stimulation. Br J Anaesth 2003; 91:347-352
82. Billard V, Gambus PL, Chamoun N, Stanski DR, Shafer SL: A comparison of spectral edge, delta power, and bispectral index as EEG measures of alfentanil, propofol, and midazolam drug effect. Clin Pharmacol Ther 1997; 61:45-58
83. Brosius KK, Bannister CF: Oral midazolam premedication in preadolescents and adolescents. Anesth Analg 2002; 94:31-36
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86. Denman WT, Swanson EL, Rosow D, Ezbicki K, Connors PD, Rosow CE: Pediatric evaluation of the bispectral index (BIS) monitor and correlation of BIS with end-tidal sevoflurane concentration in infants and children. Anesth Analg 2000; 90:872-877
87. El-Kerdawy HM, Zalingen EE, Bovill JG: The influence of the alpha2-adrenoceptor agonist, clonidine, on the EEG and on the MAC of isoflurane. Eur J Anaesth 2000; 17:105-110
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89. Friedberg BL: The effect of a dissociative dose of ketamine on the bispectral index (BIS) during propofol hypnosis. J Clin Anesth 1999; 11:4-7
90. Gajraj RJ, Doi M, Mantzaridis H, Kenny GN: Comparison of bispectral EEG analysis and auditory evoked potentials for monitoring depth of anaesthesia during propofol anaesthesia. Br J Anaesth 1999; 82:672-678
91. Gale T, Leslie K, Kluger M: Propofol anaesthesia via target controlled infusion or manually controlled infusion: effects on the bispectral index as a measure of anaesthetic depth. Anaesth Intens Care 2001; 29:579-584
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
95. Jellish WS, Leonetti JP, Avramov A, Fluder E, Murdoch J: Remifentanil-based anesthesia versus a propofol technique for otologic surgical procedures. Otolaryngol Head Neck Surg 2000; 122:222-227
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98. McDonald TB, Berkowitz RA, Hoffman WE: Median EEG frequency is more sensitive to increases in sympathetic activity than bispectral index. J Neurosurg Anesth 1999; 11:255-259
99. Menigaux C, Guignard B, Adam F, Sessler DI, Joly V, Chauvin M: Esmolol prevents movement and attenuates the BIS response to orotracheal intubation. Br J Anaesth 2002; 89:857-862
100. Mi W, Sakai T, Kudo T, Kudo M, Matsuki A: The interaction between fentanyl and propofol during emergence from anesthesia: monitoring with the EEG-Bispectral index. J Clin Anesth 2003; 15:103-107
101. Mi WD, Sakai T, Singh H, Kudo T, Kudo M, Matsuki A: Hypnotic endpoints vs. the bispectral index, 95% spectral edge frequency and median frequency during propofol infusion with or without fentanyl. Eur J Anaesth 1999; 16:47-52
102. Mi WD, Sakai T, Takahashi S, Matsuki A: Haemodynamic and electroencephalograph responses to intubation during induction with propofol or propofol/fentanyl. Can J Anaesth 1998; 45:19-22
103. Sakai T, Singh H, Mi WD, Kudo T, Matsuki A: The effect of ketamine on clinical endpoints of hypnosis and EEG variables during propofol infusion. Acta Anaesthesiol Scand 1999; 43:212216
104. Shao X, Li H, White PF, Klein KW, Kulstad C, Owens A: Bisulfite-containing propofol: is it a cost-effective alternative to Diprivan for induction of anesthesia? Anesth Analg 2000; 91:871875
105. Singh H, Sakai T, Matsuki A: Movement response to skin incision: analgesia vs.bispectral index and 95% spectral edge frequency. Eur J Anaesthesiol 1999; 16:610-614
106. Sleigh JW, Donovan J: Comparison of bispectral index, 95% spectral edge frequency and approximate entropy of the EEG, with changes in heart rate variability during induction of general anaesthesia. Br J Anaesth 1999; 82:666-671
107. Sun R, Watcha MF, White PF, Skrivanek GD, Griffin JD, Stool L, Murphy MT: A cost comparison of methohexital and propofol for ambulatory anesthesia. Anesth Analg 1999; 89:311-316
108. Vernon JM, Lang E, Sebel PS, Manberg P: Prediction of movement using bispectral electroencephalographic analysis during propofol/alfentanil or isoflurane/alfentanil anesthesia. Anesth Analg 1995; 80:780-785
109. White PF, Wang B, Tang J, Wender RH, Naruse R, Sloninsky A: The effect of intraoperative use of esmolol and nicardipine on recovery after ambulatory surgery. Anesth Analg 2003; 97:1633-1638
110. Wuesten R, Van Aken H, Glass PS, Buerkle H: Assessment of depth of anesthesia and postoperative respiratory recovery after remifentanil- versus alfentanil-based total intravenous anesthesia in patients undergoing ear-nose-throat surgery. Anesthesiology 2001; 94:211-217
111. Chazot T, Liu N, Tremelot L, Joukovsky P, Fischler M: Detection of gas embolism by bispectral index and entropy monitoring in two cases. Anesthesiology 2004; 101:1053-1054
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
112. Hayashida M, Chinzei M, Komatsu K, Yamamoto H, Tamai H, Orii R, Hanaoka K, Murakami A: Detection of cerebral hypoperfusion with bispectral index during paediatric cardiac surgery. Br J Anaesth 2003; 90:694-698
113. Honan DM, Breen PJ, Boylan JF, McDonald NJ, Egan TD: Decrease in bispectral index preceding intraoperative hemodynamic crisis: evidence of acute alteration of propofol pharmacokinetics. Anesthesiology 2002; 97:1303-1305
114. Kakinohana M, Miyata Y, Kawabata T, Kawashima S, Tokumine J, Sugahara K: Bispectral index decreased to "0" in propofol anesthesia after a cross-clamping of descending thoracic aorta. Anesthesiology 2003; 99:1223-1225
115. Kin N, Konstadt S, Sato K, Hanaoka K: Reduction of bispectral index value associated with clinically significant cerebral air embolism. J Cardiothorac Vasc Anesth 2004; 18:82-84
116. Luginbuhl M, Schnider TW: Detection of awareness with the bispectral index: two case reports. Anesthesiology 2002; 96:241-243
117. Merat S, Levecque J, Le Gulluche Y, Diraison Y, Brinquin L, Hoffmann J: BIS monitoring may allow the detection of severe cerebral ischemia. Can J Anesth 2001; 48:1066-1069
118. Mourisse J, BooiJ L: Bispectral index detects period of cerebral hypoperfusion during cardiopulmonary bypass. J Cardiothorac Vasc Anesth 2003; 17:76-78
119. Welsby IJ, Ryan JM, Booth JV, Flanagan E, Messier RH, Borel CO: The bispectral index in the diagnosis of perioperative stroke: a case report and discussion. Anesth Analg 2003; 96:435427
120. Bruhn J, Bouillon TW, Shafer SL: Electromyographic activity falsely elevates the bispectral index. Anesthesiology 2000; 92:1485-1487
121. Gallagher JD: Pacer-induced artifact in the bispectral index during cardiac surgery. Anesthesiology 1999; 90:636
122. Hemmerling TM, Desrosiers M: Interference of electromagnetic operating systems in otorhinolaryngology surgery with bispectral index monitoring. Anesth Analg 2003; 96:16981699
123. Hemmerling TM, Fortier JD: Falsely increased bispectral index values in a series of patients undergoing cardiac surgery using forced-air-warming therapy of the head. Anesth Analg 2002; 95:322-323
124. Hemmerling TM, Migneault B: Falsely increased bispectral index during endoscopic shoulder surgery attributed to interferences with the endoscopic shaver device. Anesth Analg 2002; 95:1678-1679
125. Morimoto Y, Matsumoto A, Koizumi Y, Gohara T, Sakabe T, Hagihira S: Changes in the bispectral index during intraabdominal irrigation in patients anesthetized with nitrous oxide and sevoflurane. Anesth Analg 2005; 100:1370-1374
126. Mychaskiw G, Heath BJ, Eichhorn JH: Falsely elevated bispectral index during deep hypothermic circulatory arrest. Br J Anaesth 2000; 85:798-800
127. Myles PS, Cairo S: Artifact in the bispectral index in a patient with severe ischemic brain injury. Anesth Analg 2004; 98:706-707
128. Puri GD, Bagchi A, Anandamurthy B, Dhaliwal RS: The Bispectral index and induced hypothermia--electrocerebral silence at an unusually high temperature. Anaesth Intensive Care 2003; 31:578-580
129. Mychaskiw G 2nd, Horowitz M, Sachdev V, Heath BJ: Explicit intraoperative recall at a bispectral index of 47. Anesth Analg 2001; 92:808-809
130. Rampersad SE, Mulroy MF: A case of awareness despite an "adequate depth of anesthesia" as indicated by a bispectral index monitor. Anesth Analg 2005; 100:1363-1364
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
131. Chinzei M, Sawamura S, Hayashida M, Kitamura T, Tamai H, Hanaoka K: Change in bispectral index during epileptiform electrical activity under sevoflurane anesthesia in a patient with epilepsy. Anesth Analg 2004; 98:1734-1736
132. Hagihira S, Okitsu K, Kawaguchi M: Unusually low bispectral index values during emergence from anesthesia. Anesth Analg 2004; 98:1036-1038
133. Schnider TW, Luginbuhl M, Petersen-Felix S, Mathis J: Unreasonably low bispectral index values in a volunteer with genetically determined low-voltage electroencephalographic signal. Anesthesiology 1998; 89:1607-1608
134. Viertio-Oja H, Maja V, Sarkela M, Talja P, Tenkanen N, Tolvanen-Laakso H, Paloheimo M, Vakkuri A, Yli-Hankala A, Merilainen P: Description of the entropy algorithm as applied in the Datex-Ohmeda S/5 Entropy Module. Acta Anaesth Scand 2004; 48:154-161
135. Vakkuri A, Yli-Hankala A., Sandin R, Mustola S, Høymork S, Nyblom S, Talja P, Sampson T, van Gils M, Viertiö-Oja H: Spectral entropy monitoring is associated with reduced propofol use and faster emergence in propofol-nitrous oxide-alfentanil anesthesia. Anesthesiology 2005; 103:274-279
136. Bruhn J, Bouillon TW, Radulescu L, Hoeft A, Bertaccini E, Shafer SL: Correlation of approximate entropy, bispectral index, and spectral edge frequency 95 (SEF95) with clinical signs of "anesthetic depth" during coadministration of propofol and remifentanil. Anesthesiology 2003; 98:621-627
137. Vanluchene ALG, Struys MMRF, Heyse BEK, Mortier EP: Spectral entropy measurement during propofol and remifentanil. A comparison with the bispectral index. Br J Anaesth 2004; 93:645-654
138. Anderson RE, Barr G, Owell A, Jakobsson J: Entropy during propofol hypnosis including an episode of wakefulness. Anaesthesia 2004; 59:52-56
139. Wheeler PJ, Baughman VL, Koenig HM, Hoffman WE: The role of facial EMG and entropy EEG in evaluating adequacy of anesthesia. J Neurosurg Anesthesiol 2004; 16:373-4
140. Schultz B, Schultz A, Grouven U. Sleeping stage based systems (Narcotrend). In: Bruch HP, Kockerling F, Bouchard R, et al. (eds): New aspects of high technology in medicine 2000. Bolognia: Monduzzi Editore, 285–91
141. Chen X, Tang J, White PF, Wender RH, Ma H, Sloninsky A, Kariger R: A comparison of patient state index and bispectral index values during the perioperative period. Anesth Analg 2002; 95:1669-1674
142. Wong CA, Fragen RJ, Fitzgerald PC, McCarthy RJ: The association between propofol-induced loss of consciousness and the SNAPTM index. Anesth Analg 2005; 100:141-148
143. Thornton C, Konieczko KM, Jones JG, Jordan C, Dore CJ, Heneghan CPH: Effect of surgical stimulation on the auditory evoked response. Br J Anaesth 1988; 60:372-378
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The following practice advisory was approved by the ASA House of Delegates on October 25, 2005. It should be considered final. This practice advisory will be published in a future issue of the journal Anesthesiology.
148. Doi M, GajraJ RJ, Mantzaridis H, Kenny GN: Prediction of movement at laryngeal mask airway insertion: comparison of auditory evoked potential index, bispectral index, spectral edge frequency and median frequency. Br J Anaesth 1999; 82:203-207
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 Case 2:05-cv-04173-FJG Document 203 Filed 07/25/2006 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

Michael Taylor,
vs. Larry Crawford, et al.,

) Plaintiff, )
) No. 05-4173-CV-C-FJG ) Defendants. )

ORDER
On July 24, 2006, plaintiff’s counsel filed a response (Doc. # 202) to defendants’ submission of a proposed protocol (Doc. #198-1), filed July 14, 2006. Defendants’ submission was in compliance with this Court’s order of June 26, 2006 (Doc. #195).
Plaintiff is opposed to the proposed protocol submitted by the State because he believes that the protocol still fails to comply with many aspects of this Court’s June 26, 2006 Order and also because the protocol perpetuates the unnecessary risk of causing excruciating pain during the lethal injection process.
In the June 26, 2006 Order, this Court amended its Order of January 31, 2006 and certified this case to the Eighth Circuit for their review and consideration. Additionally, on July 24, 2006, the State filed a Notice of Appeal with the Eighth Circuit. Accordingly, jurisdiction over this matter no longer rests with this Court.
This Court’s order of June 26, 2006, was never intended to unreasonably delay Missouri’s execution of death row inmates. Instead, the goal of this Court was to guarantee that those executions were conducted in a constitutional manner. 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. The evidence presented by plaintiff’s counsel supported that argument.
Missouri’s revised proposal is an improvement over the current procedure. However, there continue to be inadequacies with the personnel required to monitor and

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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 approach 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.
As this case is now before the Eighth Circuit, the Court is confident that the parties will present their positions on the revised protocol to that Court.

Dated: July 25, 2006 Kansas City, Missouri

/s/Fernando J. Gaitan, Jr. United States District Judge

2

 
 Case 2:05-cv-04173-FJG Document 213 Filed 09/12/2006 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR
vs. LARRY CRAWFORD, et al.,

) ) Plaintiff, ) ) ) ) ) Defendants. )

No. 05-4173-CV-C-FJG

ORDER
On August 9, 2006, the Eighth Circuit remanded the above captioned case to this Court. In that Order the Eighth Circuit stated, “[s]ince Crawford has now proposed the revised protocol for use in the execution of Taylor’s death sentence, the court remands jurisdiction of this dispute to the district court for consideration of this newly propounded protocol and all other issues now framed by the parties’ pleadings and notices of appeal.” (August 9, 2006 Order, p. 3). The Court has reviewed the protocol proposed by the State, as well as the plaintiff’s objections and the state’s reply to those objections. I. Revised Protocol
First, this Court’s June 26, 2006 Order (Doc. # 195) was premised on the stated intent of the State to continue using the three drug protocol. However, the Court found that the lack of a written protocol for the use of these three drugs, plus an inconsistent and arbitrary application of these drugs subjected condemned inmates to an unreasonable risk of cruel and unusual punishment. The Eighth Amendment provides that “cruel and unusual punishment” shall not be inflicted. It prohibits punishments that are “incompatible with ‘the evolving standards of decency that mark the progress of a maturing society.’” Estelle v. Gamble 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630

Case 2:05-cv-04173-FJG Document 213 Filed 09/12/2006 Page 2 of 4
(1958)). As to executions, it prohibits “the unnecessary and wanton infliction of pain” as well as methods involving torture or a lingering death. See Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976).
While the State’s revised protocol is an improvement over the previous procedures used by John Doe No. 1, it falls short of providing the critical Constitutional protections required. It was never the intention of this Court to prevent the State of Missouri from executing its death row inmates. Rather, the Court sought only to ensure that the State was meeting Constitutional standards. Those standards can be achieved in various ways. However, certain protocols suggested by the State fall short of those standards. If the State wants to continue using the three drug method of lethal injection, its proposal shall be modified as follows:
1. First, John Doe No. 1 shall not participate in any manner, at any level, in the State of Missouri’s lethal injection process.
2. Second, while a board certified anesthesiologist is preferred, the Court hereby modifies its previous order (Doc. # 195, p. 14) to permit a physician with training in the application and administration of anesthesia to either mix the chemicals or to oversee the mixing of the chemicals for lethal injections.
3. Anesthetic Depth - The States’ proposal is rejected in favor of that proposed by the Court. As noted in the Court’s previous order, the State may have to purchase additional equipment in order to adequately monitor anesthetic depth. The method of monitoring anesthetic depth shall be determined after the State consults with the physician who is chosen to assist in the lethal injection process. The State has agreed to reposition the gurney on which the inmate is positioned, so that the inmate’s face will be directly visible to the medical personnel.
4. Contingency Plan - The State’s proposed contingency plan is acceptable. 5. Auditing Process - The “Sequence of Chemicals” form that verifies that the
2

Case 2:05-cv-04173-FJG Document 213 Filed 09/12/2006 Page 3 of 4
drugs were given in the order specified in the protocol shall be signed by each staff member taking part in the protocol as soon as the inmate has been declared dead. The physician in charge of the lethal injection procedure will also complete and sign the chemical log.
6. Any deviations from this written protocol shall be a matter of written record submitted to the appropriate state officials and subject to Court review. Said review may result in further modifications of the approved protocol.
7. Obtaining Use of a Board Certified Anesthesiologist - this provision has been modified to allow a physician trained in the administration and application of anesthetic drugs to be involved. The State’s proposed use of “medical personnel” is rejected to the extent they propose the use of paramedics and/or emergency medical technicians. However, the supervising physician previously referred to may employ medical personnel whom he or she believes are necessary to assist the physician.
8. The State shall submit a revised protocol to the Court for review and approval on or before October 27, 2006. The State shall select a physician who is in good standing with their State’s licensing board. The physician selected shall not have any disciplinary action taken against them by their State’s licensing authority. II. Motion to Withdraw
Also pending before the Court is a Motion to Withdraw and Motion for Appointment of Successor Counsel. This motion was filed in the Eighth Circuit, but was remanded to this Court on August 9, 2006. Mr. Simon moves to withdraw as counsel for plaintiff because he has accepted a position with the Missouri State Public Defender System. Co-counsel in plaintiff’s habeas corpus and executive clemency representation, Mark Thornhill, will continue representing plaintiff in his clemency proceedings and Jenner & Block, LLP will continue to represent plaintiff in his lethal injection litigation. Plaintiff has filed an affidavit requesting that the Court appoint C.
3

Case 2:05-cv-04173-FJG Document 213 Filed 09/12/2006 Page 4 of 4
John Pleban, to succeed Mr. Simon in the habeas corpus and executive clemency litigation. As plaintiff has adequate counsel which are continuing to represent him, the Court finds it unnecessary to appoint replacement counsel. Accordingly, Mr. Simon’s Motion to Withdraw is hereby GRANTED and the Motion to Appoint Replacement Counsel is hereby DENIED.

Date: September 12, 2006 Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR. Fernando J. Gaitan, Jr. United States District Judge

4

 
 Case 2:05-cv-04173-FJG Document 217 Filed 10/06/2006 Page 1 of 3

THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR,

)

)

Plaintiff,

)

)

v.

)

Case No. 05-4173-CV-C-FJG

)

LARRY CRAWFORD, et al.,

)

)

Defendants.

)

DEFENDANT CORRECTIONAL OFFICIALS’ RESPONSE TO COURT ORDER OF SEPTEMBER 12, 2006

On July 14, 2006, the defendant Corrections officials submitted an execution protocol

to the Court for its review. Following an appeal to the Eighth Circuit and remand, this Court,

on September 12, 2006, held that the protocol was not consistent with the Eighth

Amendment and ordered defendants to submit a revised protocol for review by October 27,

2006.

Defendants respectfully maintain that the protocol submitted by the Department of

Corrections on July 14 does comply with the broad bounds of the Eighth Amendment. For

the reasons set out in the Cover Memorandum filed with the protocol on July 14, 2006, and

in their reply to plaintiff’s opposition to the protocol filed on August 29, 2006, the defendant

Corrections officials have established that their protocol provides a means (among many) of

lethal injection that does not subject condemned prisoners to unnecessary and wanton pain.

Defendants respectfully disagree that they are constitutionally obligated to meet the

additional criteria set out by the Court in the September 12 Order.

The defendant Corrections officials resubmit the protocol they initially submitted on

Case 2:05-cv-04173-FJG Document 217 Filed 10/06/2006 Page 2 of 3
July 14, copy attached to this response as Exhibit A, and ask the Court to reconsider its conclusion that this protocol is not constitutionally sufficient. Whatever the Court’s final conclusion, defendants ask the Court to enter its judgment so that any appeals may proceed expeditiously.
Respectfully submitted, JEREMIAH W. (JAY) NIXON Attorney General /s/ Michael Pritchett MICHAEL PRITCHETT Assistant Attorney General Missouri Bar No. 33848 /s/ Stephen D. Hawke STEPHEN D. HAWKE Assistant Attorney General Missouri Bar No. 35242 P.O. Box 899 Jefferson City, MO 65102 Telephone No. (573) 751-3321 Fax No. (573) 751-9456 ATTORNEYS FOR DEFENDANTS CRAWFORD AND PURKETT
-2-

Case 2:05-cv-04173-FJG Document 217 Filed 10/06/2006 Page 3 of 3

CERTIFICATE OF SERVICE

I hereby certify that on October 6, 2006, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system which sent notification of such filing to the

following:

John W. Simon, Attorney at Law 2683 South Big Bend Boulevard, # 12 St. Louis, MO 63143-2100
C. John Pleban Lynette M. Petruska Pleban & Associates, LLC 2010 South Big Bend Boulevard St. Louis, MO 63117

Donald B. Verrilli, Jr. Matthew S. Hellman Ginger Anders Eric Berger Jenner & Block LLP 601 13th Street N.W. Washington, DC 20005

/s/ Michael Pritchett Assistant Attorney General

-3-

 
 Case 2:05-cv-04173-FJG Document 218-1 Filed 10/12/2006 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR

)

)

Plaintiff, )

)

v.

)

)

LARRY CRAWFORD, et al.,

)

)

Defendants. )

___________________________________ )

No. 05-4173-CV-W-FJG

PLAINTIFF’S OPPOSITION TO THE STATE’S RESPONSE TO COURT ORDER OF SEPTEMBER 12, 2006
Plaintiff submits this brief in opposition to the Defendant Correctional Officials’ Response to this Court’s September 12, 2006, Order rejecting the State’s July 14 proposed protocol.
Rather than attempting to comply with the remedial portion of the Court’s September 12 Order, or even litigating the propriety of the modified remedy that Order sets out, the State has submitted a motion for reconsideration of the September 12 Order. Response at 2 (“[We] ask the Court to reconsider its conclusion that [the July 14] protocol is not constitutionally sufficient.”). The State’s refusal even to attempt to comply with -- or litigate -- the Court’s remedial order is yet more evidence that the State does not comprehend what is at stake in this litigation.
An execution procedure that involves an unnecessary risk of significant pain violates the Eighth Amendment. See Order of June 26, 2006, at 10-11. In order to minimize the unnecessary risk of excruciating pain, while continuing to use potassium chloride as the means of execution, the State must provide for effective assessment of the inmate’s anesthetic depth prior to and

Case 2:05-cv-04173-FJG Document 218-1 Filed 10/12/2006 Page 2 of 3

during the administration of pancuronium and potassium. See id. at 14; Order of July 25, 2006, at 1; Order of Sept. 12, 2006, at 2 (“The State’s proposal is rejected in favor of that proposed by the Court.”). The State’s proposed July 14 protocol does not come close to providing for effective assessment of anesthetic depth, and it also fails to correct additional flaws in the State’s lethal injection procedure identified by this Court. See Order of June 26, 2006, at 10-15.
The State has provided no grounds for reconsidering the September 12 Order. See ElderKeep v. Aksamit, 460 F.3d 979, 984-85 (8th Cir. 2006). For a more detailed discussion of the insufficiency of the July 14 proposed protocol, and the need to meaningfully assess anesthetic depth when using potassium as the means of execution, Plaintiff respectfully refers the Court to his Opposition to the July 14 proposed protocol, filed on July 24, 2006, as well as the accompanying affidavit of Dr. Mark Heath and other exhibits. For the reasons stated therein, the State’s motion for reconsideration should be denied.

/s/ JOHN WILLIAM SIMON JOHN WILLIAM SIMON
J.D., PH.D.
2683 South Big Bend Blvd, # 12 St. Louis, Missouri 63143-2100 (314) 645-1776 FAX (314) 645-2125

Respectfully submitted,
/s/ DONALD B. VERRILLI, JR.
DONALD B. VERRILLI, JR. MATTHEW S. HELLMAN GINGER D. ANDERS ERIC BERGER
JENNER & BLOCK LLP 601 13th Street NW Washington, DC 20005 (202) 639-6000 FAX: (202) 661-4983

Counsel for Plaintiff

Dated this 12th day of October, 2006.

2

Case 2:05-cv-04173-FJG Document 218-1 Filed 10/12/2006 Page 3 of 3
Certificate of Service I hereby certify a true and correct copy of the foregoing was forwarded by electronic mail and Federal Express this twelfth day of October, 2006, to the offices of:
Michael Pritchett, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, Missouri 65102
/s/ Matthew Hellman Attorney for Plaintiff
3

 
 Case 2:05-cv-04173-FJG Document 220 Filed 10/16/2006 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR
vs. LARRY CRAWFORD, et al.,

) ) Plaintiff, ) ) ) ) ) Defendants. )

No. 05-4173-CV-C-FJG

ORDER
On August 9, 2006, the Eighth Circuit remanded the above captioned case to this Court. In that Order the Eighth Circuit stated, “[s]ince Crawford has now proposed the revised protocol for use in the execution of Taylor’s death sentence, the court remands jurisdiction of this dispute to the district court for consideration of this newly propounded protocol and all other issues now framed by the parties’ pleadings and notices of appeal.” (August 9, 2006 Order, p. 3). On September 12, 2006, the Court issued an Order stating that while the States’ revised protocol was an improvement over the previous procedures used by John Doe No. 1, it still fell short of providing the critical Constitutional protections required. The Court then suggested several modifications which should be made to the proposed protocol. The State was given until October 27, 2006 to submit a revised protocol. On October 6, 2006 the State filed a response to the Court’s Order stating that the “[d]efendants respectfully maintain that the protocol submitted by the Department of Corrections on July 14 does comply with the broad bounds of the Eighth Amendment. . . . Defendants respectfully disagree that they are constitutionally obligated to meet the additional criteria set out by the Court in the September 12 Order. The defendant Corrections officials resubmit the protocol they initially submitted on July 14, . . . and ask the Court to reconsider its conclusion that this protocol is not constitutionally sufficient. Whatever the Court’s final conclusion,

Case 2:05-cv-04173-FJG Document 220 Filed 10/16/2006 Page 2 of 2

defendants ask the Court to enter its judgment so that any appeals may proceed expeditiously.” (State’s Response, Doc. # 217). On October 12, 2006, plaintiff filed Suggestions in Opposition stating that the July 14 protocol does not come close to providing for effective assessment of anesthetic depth and also fails to correct the additional flaws in the State’s lethal injection procedure identified by the Court. Plaintiff notes that the State has provided no grounds for the Court to reconsider it’s September 12, 2006 Order.
The Court declines to reconsider its September 12, 2006 Order. As the Court noted, although the State’s proposal was an improvement, there were still several areas which the Court finds do not meet Constitutional standards. The State’s response does nothing to address these concerns and indicates its lack of willingness to even attempt to comply with the Court’s order. Therefore, the Court hereby DENIES the State’s Motion for Reconsideration (Doc. # 217) and restates is previous determination that the protocol proposed by the State of Missouri is unconstitutional because it subjects inmates to unreasonable risk of cruel and unusual punishment.

Date: October 16, 2006 Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR. Fernando J. Gaitan, Jr. United States District Judge

2

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR, )

)

Plaintiff,

)

)

v.

)

)

LARRY CRAWFORD,

)

Director,

)

Department of Corrections; )

)

JAMES D. PURKETT,

)

Superintendent,

)

Eastern Reception Diagnostic )

Correctional Center; and

)

)

JOHN DOES 1‐666,

)

Anonymous Executioners, )

)

Defendants.

)

No. 05‐4173‐CV‐C‐SOW JURY TRIAL DEMANDED

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
COMES NOW the plaintiff, Michael Anthony Taylor, by and through

appointed counsel, John William Simon, and—as authorized by 42 U.S.C.

§ 1983—prays the Court for its declaratory judgment holding that the

existing procedure for lethal injection that the State of Missouri and its

officials, officers, and employees, acting under color of state law, use in

executions violates the Eighth, Thirteenth, and Fourteenth Amendments, because it would inflict on him cruel and unusual punishment, which would thereby deprive him of life, liberty, or property without due process of law, and would inflict on him a badge of slavery, in that the defendants’ selection of a three‐chemical sequence—itself unnecessary to bring about the statutory goal of his death—as a means of applying their chosen method of execution (lethal injection) creates a foreseeable risk of the infliction of gratuitous pain, i.e., a specific form of an otherwise lawful method of execution which is more painful than necessary to accomplish the statutory purpose of bringing about the “mere extinguishment of life.”1 In an exhibit submitted with this complaint, the plaintiff shows that a peer‐ reviewed study of autopsy and toxicology data from executions in the four jurisdictions which did the tests, kept the results, and agreed to make them available to scholarly researchers would indicate this foreseeable risk to be at least 43% likely to occur.
Plaintiff does not in this action dispute whether the State of Missouri can kill him, but rather demonstrates that the way its agents have chosen to do so is unconstitutional. Plaintiff prays the Court for its preliminary
1In re Kemmler, 136 U.S. 436, 447 (1890).
‐ 2 ‐

injunction to prevent the defendants from executing him at all, however, until he has had an opportunity to present his case after discovery and in open court and to receive an adjudication on the merits, and thereafter for its permanent injunction to prevent the defendants from using this form of lethal injection on the plaintiff; for its order granting the plaintiff reasonable attorneys’ fees and costs; and for such other relief as the Court finds appropriate.
I. Summary As set forth in detail in the declarations of anesthesiology professors Mark J.S. Heath, M.D. (Exhibit 1), and David A. Lubarsky, M.D. (Exhibit 2) which are attached to this complaint, the use of a specific succession of chemicals in judicial executions by lethal injection—which the defendants or their predecessors in office have admitted they use—creates a foreseeable risk of the gratuitous infliction of pain and suffering, in that the first of the three chemicals is used by health‐care professionals specifically because it wears off when the patient experiences stimuli which produce pain; the second chemical paralyzes the prisoner such that he cannot breathe and he suffers from suffocation, but the prisoner cannot cry out or even flinch, because of the paralysis; the third chemical burns as it works
‐ 3 ‐

its way through his veins to the heart, killing him with a heart attack— which to a conscious person is painful. The co‐authors of a peer‐reviewed study published April 16, 2005, in the world‐renowned medical journal THE LANCET found that in 43% of the executions for which four states provided information, the levels of anesthesia were inadequate to render the prisoner unconscious at the time of his death; and those executions were in jurisdictions which (unlike Missouri) were careful enough to keep records and confident of the humanness of their several practices to share these data with the co‐authors. None of the three chemicals are required by Missouri statute; neither any one of them nor the combination of them is necessary to bring about the death of the plaintiff. Defendants could bring about the death of the prisoner by the administration of a single, lethal dose of a single anesthetic, pentobarbital, as their veterinarians would do if they had a pet which they decided to have euthanized. The Eighth Amendment forbids the gratuitous infliction of pain and suffering, and the Fourteenth Amendment applies this guaranty against the states. The Thirteenth Amendment abolishes slavery, of which not only the contemporary infliction of the death penalty but more specifically the use of a form of execution more painful than necessary to bring about the death
‐ 4 ‐

of the prisoner is a relic, a vestige, and a badge. Plaintiff is entitled to the relief he seeks.
II. Statement of Exhibits 1. Declaration of Mark J.S. Heath, M.D. with curriculum vitae attached as “Heath Exhibit 1” 2. Declaration of David A. Lubarsky, M.B.A., M.D., with curriculum vitae and LANCET article attached as “Lubarsky Exhibits” 1 & 2 respectively 3. Johnston v. Kempker, No. 4:04‐CV‐1975‐DJS, Defendant Gary Kempker’s Answers and Objections to Plaintiff’s First Set of Interrogatories (E.D. Mo. Dec. 22, 2004) 4. Johnston v. Kempker, No. 4:04‐CV‐1975‐DJS, Defendants’ Memorandum of Law in Support of Motion to Dismiss (E.D. Mo. Nov. 15, 2004) 5. Johnston v. Kempker, No. 4:04‐CV‐1975‐DJS, Exhibit 1 to Plaintiff’s Response to Defendants’ Motion to Dismiss (E.D. Mo. Dec. 6, 2004) 6. Johnston v. Kempker, No. 4:04‐CV‐1975‐DJS, Defendant’s Reply to Plaintiff’s Response to Motion to Dismiss (E.D. Mo. Dec. 20, 2004)
‐ 5 ‐

7. Jones v. Crawford, No. 4:05‐CV‐653‐RWS, Transcript of Temporary Restaining Order Hearing (E.D. Mo. April 25, 2005)
8. Informal Resolution Request with Cover Affidavit by Vernon Brown, executed May 6, 2005
9. Affidavit of Stanley D. Payne with Informal Resolution Request and equivocal unsigned statement by staff attached
10. Declaration of Michael Lenza, Ph.D., with curriculum vitae (Exhibit 1)
11. M. LENZA, POLITICS OF DEATH: A STATISTICAL, THEORETICAL, AND HISTORICAL EXAMINATION OF THE DEATH PENALTY IN MISSOURI, University of Missouri–Columbia, 2005 (hitherto unpublished Ph.D. dissertation)
12. John F. Galliher, et al., REPORT TO THE OFFICE OF THE MISSOURI PUBLIC DEFENDER ON PROPORTIONALITY OF SENTENCING IN DEATH‐ELIGIBLE CASES, filed by Missouri State Public Defender System in, inter alia, State v. Parker2
2886 S.W.2d 908 (Mo. 1994) (en banc), cert. denied, 514 U.S. 1098 (1995), citing In re Estate of Danforth, 705 S.W.2d 609, 610 (Mo. Ct. App., S.D. 1986) (providing for judicial notice of the record resulting in an opinion to determine grounds on which opinion is based). A published work coming after the original Galliher study but before the Lenza et al. study is J.R. SORENSEN AND D.H. WALLACE, Capital Punishment in Missouri: Examining the Issue of Racial Disparity, 13 BEHAVIORAL SCIENCES AND THE LAW 61, 75
‐ 6 ‐

13. M. Lenza et al., THE PREVAILING INJUSTICES IN THE APPLICATION OF THE DEATH PENALTY IN MISSOURI (1978‐1996) (2002), available May 18, 2004, at http://www.umsl.edu/divisions/artscience/forlanglit/mbp/Lenza1.html
14. Denise Lieberman, Legal Director, American Civil Liberties Union of Eastern Missouri, PROSECUTORS: THE FIRST LINE OF OFFENSE— PROSECUTORIAL DISCRETION AND ARBITRARINESS IN ADMINISTRATION OF THE DEATH PENALTY, http://www.umsl.edu/~phillips/dp/ACLUDenise.html (2001)
15. J. SOSS ET AL., Why Do White Americans Support the Death Penalty? 65 J. OF POLITICS 397, 409 (2003), http://www.polisci.wisc.edu/~soss/Research/Articles/JOP_2003.pdf
16. Affidavit of Michael Anthony Taylor executed May 27, 2005, with Informal Resolution Request attached
17. Missouri Department of Corrections, Department Manual, D5‐ 3.2, Offender Grievance
18. Brown v. Crawford, No. 4:05‐CV‐746, Transcript of Hearing on Motion for Temporary Restraining Order (E.D. Mo. May 13, 2005)
(1995).
‐ 7 ‐

III. Parties 1. Plaintiff, Michael Anthony Taylor, CP‐89, is a citizen of the United States and a resident of the State of Missouri. 2. Plaintiff is a person within the jurisdiction of the State of Missouri. 3. Plaintiff was sentenced to death in the Circuit Court of Jackson County (the Hon. Alvin G. Randall, Circuit Judge; on remand, the late Hon. Michael Coburn) for the kidnapping, rape, and murder of a minor child, A.H., while acting together with Roderick Nunley. 4. Plaintiff is attacking the conviction and sentence of the Circuit Court of Jackson County in at least one pending action before the Missouri Supreme Court, a motion to recall the mandate filed on or about March 25, 2005, in its Appeal No. 85235, but not in this complaint. 5. Plaintiff is incarcerated at the Potosi Correctional Center, 11593 State Highway O, Mineral Point, Washington County, Missouri 63660. 6. The State of Missouri conducts its executions at the Eastern Missouri Reception, Diagnostic & Correctional Center, 2727 Highway K, Bonne Terre, St. Francois County, Missouri 63628.
‐ 8 ‐

7. Defendant Larry Crawford is Director of the Department of
Corrections of the State of Missouri.
8. Defendant Crawford is specifically authorized and directed by
state statute to prescribe and direct the means by which the Department of
Corrections carries out executions within the statutorily specified methods
of lethal gas or lethal injection.3 Plaintiff does not in this complaint contend
that lethal injection is per se unconstitutional.
9. Defendant Crawford is sued in his individual and official
capacity for the purpose of obtaining prospective declaratory and
injunctive relief.
10. At all times and in all respects referred to in this complaint,
defendant Crawford acted and will act under color of state law.
11. Defendant Crawford’s office is at 2729 Plaza Drive, Jefferson
City, Cole County, Missouri 65109.
3Mo. Rev. Stat. § 546.720: “The manner of inflicting the punishment of death shall be by the administration of lethal gas or by means of the administration of lethal injection. And for such purpose the director of the department of corrections is hereby authorized and directed to provide a suitable and efficient room or place, enclosed from public view, within the walls of a correctional facility of the department of corrections, and the necessary appliances for carrying into execution the death penalty by means of the administration of lethal gas or by means of the administration of lethal injection.”
‐ 9 ‐

12. Defendant Crawford is a resident of the Central Division of the Western Federal Judicial District of Missouri.
13. Defendant James D. Purkett is Superintendent of the Eastern Reception, Diagnostic & Correctional Center (ERDCC), in Bonne Terre, St. Francois County, Missouri.
14. Defendant Purkett is “warden” or chief executive officer of ERDCC, and is therefore charged with the management of ERDCC.
15. Defendant Purkett’s principal place of business is the Eastern Reception, Diagnostic & Correctional Center (ERDCC), 2727 Highway K, Bonne Terre, St. Francois County, Missouri 63628.
16. Defendant Purkett is a resident of the Eastern District of Missouri.
17. ERDCC is where the State of Missouri began conducting its executions on April 27, 2005.
18. By virtue of his authority over the staff of ERDCC, defendant Purkett is responsible for the way in which executions are conducted in Missouri.
19. Defendant Purkett is sued in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief.
‐ 10 ‐

20. At all times and in all respects referred to in this complaint, defendant Purkett acted and will act under color of law.
21. Defendants John Does 1‐666 are officials, officers, employees, agents, and servants of the State of Missouri who, by virtue of their employment or other status (including independent contractors and volunteers under the supervision of the defendants and their designees), participate in the planning of, purchasing and preparation for, carrying out of, and covering up of details about executions in the State of Missouri.
22. Plaintiff cannot provide the Court the natural names of these individuals because the State of Missouri and its officials, officers, and employees have thus far kept them secret.
23. John Does 1‐666 are sued in their individual and official capacities for the purpose of obtaining declaratory and injunctive relief.
24. Defendants Does 1‐666 reside in the Eastern and Western Districts of Missouri.
25. At all times and in all respects referred to in this complaint, defendants Does 1‐666 acted and will act under color of law.
26. Each and all of the foregoing defendants Crawford, Purkett, and Does 1‐666 at all times relevant to this complaint were acting in their
‐ 11 ‐

official capacities with respect to all acts and omissions described in this complaint, and were in each instance acting under color of state law.
27. Unless permanently enjoined against doing so, the defendants and each of them intend to act in their respective official capacities and under color of state law to execute the plaintiff by lethal injection in the manner set forth in this complaint.
IV. Jurisdiction 28. Plaintiff brings this action to enforce and protect his rights under the Eighth Amendment to the United States Constitution, as applied against the states by the Fourteenth Amendment, and also to enforce and protect his rights under the Thirteenth Amendment. 29. This Court has jurisdiction over this cause under 28 U.S.C. § 1331, in that it arises under the Constitution of the United States; under 28 U.S.C. § 1343(a)(3), in that it is brought to redress deprivations, under color of state law, of rights, privileges, and immunities secured by the United States Constitution; under 28 U.S.C. § 1343(a)(4), in that it seeks to secure equitable relief under an Act of Congress, i.e., 42 U.S.C. § 1983, which provides a cause of action for the protection of rights, privileges, or immunities secured by the Constitution and laws of the United States;
‐ 12 ‐

under 28 U.S.C. § 2201(a), in that one purpose of his action is to secure declaratory relief; and under 28 U.S.C. § 2202, in that one purpose of his action is to secure permanent injunctive relief.
30.In addition to the foregoing, this Court has jurisdiction by virtue of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, or Punishment.
31.Article 1, ¶ 1 of the Convention defines “torture” as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” (Emphasis supplied.)
32.Article 2, ¶ 1, provides that “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”
‐ 13 ‐

33.Article 1, ¶ 1 adds that torture “does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Because the plaintiff invokes the treaty as providing a remedial structure rather than as a source of substantive law, it would be begging the question or beside the point for the defendants to argue that the pain from their specific method of lethal injection is part of a “lawful” sanction. The Eighth Amendment controls on the question whether such an execution is lawful.
34.Consequently, because this Court’s jurisdiction does not depend on a federal statute, 42 U.S.C. § 1997e would not bar relief even if the selection of a garrote rather than lethal injection were a “prison condition.”
V. Venue 35. Venue is proper in this federal judicial district under 28 U.S.C. § 1391(b)(1)‐(3) in that (1) defendant Crawford resides in its territorial jurisdiction; (2) defendant Crawford’s decisions regarding the specific means of using lethal injection are made in its territorial jurisdiction, and (3) defendant Crawford may be found in its territorial jurisdiction.
VI. Facts 36. Plaintiff restates and realleges the contents of each preceding paragraph as if fully set forth again.
‐ 14 ‐

37. Defendants intend to execute the plaintiff by lethal injection using a succession of three chemicals: sodium pentothal, pancuronium bromide, and potassium chloride.
38. As set forth in greater detail in the declarations of anesthesiologists, Mark J.S. Heath, M.D. (Exhibit 1), and David A. Lubarsky, M.D. (Exhibit 2), the use of this succession of chemicals in judicial executions by lethal injection creates a foreseeable risk of the gratuitous infliction of pain and suffering. The use of this succession of chemicals, or of any one or more of them, is absolutely unnecessary to bring about the death of the plaintiff. (E.g., Exhibit 1, ¶¶ 25, 36, 41 & 45.)
39. Specifically, sodium pentothal, also known as thiopental, is a ultra‐short acting substance which produces shallow anesthesia. Health‐ care professionals use it as an initial anesthetic in preparation for surgery while they set up a breathing tube in the patient and use different drugs to bring to patient to a “surgical plane” of anesthesia that will last through the operation and will block the stimuli of surgery which would otherwise cause pain. Sodium pentothal is intended to be defeasible by stimuli associated with errors in setting up the breathing tube and initiating the
‐ 15 ‐

long‐run, deep anesthesia; the patient is supposed to be able to wake up and signal the staff that something is wrong. (Exhibit 1 ¶¶ 20‐22.)
40. Sodium pentothal is unstable in liquid form. To be effective as an anesthetic, it must be mixed up and administered by a person with the qualifications of a licensed health‐care professional. Licensed health‐care professionals cannot by law and professional ethics participate in executions. (Exhibit 1, ¶ 26.)
41. Therefore, on information and belief, the sodium penthothal which the defendants administer to condemned persons in Missouri has not been prepared and administered by one who is qualified under Missouri law to do so in the therapeutic environment. This fact increases the risk—if not guarantees the result—that the sodium pentothal will not have the intended anesthetic effect on the condemned person.
42. The second chemical the defendants use in lethal injections is pancuronium bromide, sometimes referred to simply as pancuronium. It is not an anesthetic. It is a paralytic agent, which prevents any of the voluntary muscles of the body from moving, including those which control breathing, and effectively stops the lungs from functioning. It has two contradictory effects: first, it causes the person to whom it is applied to
‐ 16 ‐

suffer suffocation when the lungs stop moving; second, it prevents the person from manifesting this suffering, or any other sensation, by facial expression, hand movement, or speech. (Exhibit 1, ¶¶ 27‐30.)
43. When sodium pentothal is exposed to pancuronium bromide, it precipitates, i.e., returns to the solid condition it was in before the executioner of unknown qualifications or lack thereof mixed it up in preparation for the execution. Once it returns to its solid condition, the sodium pentothal is no longer active as an anesthetic. Any one of a number of mistakes—the type of mistakes that one would expect to occur when sodium pentothal is prepared and administered by a non‐licensed person—or simply bad luck, can cause this abatement of the anesthetic effect toward the beginning of the lethal injection. In the absence of the assurance that the executioners have the same skills as anesthesiologists, nurse‐anesthetists, or even veterinarians or their staff, the likelihood is substantial that this will happens in any given execution by lethal injection performed in the State of Missouri.
44. Pancuronium bromide is unnecessary to bring about the death of a person being executed by lethal injection. It has the unconscionable effect of creating the possibility that the sodium pentothal will become
‐ 17 ‐

ineffective when the prisoner begins to suffer suffocation from the pancuronium bromide. Its only relevant function is to prevent the media and the conscientious staff from knowing when the sodium pentothal has worn off and the prisoner is suffering from suffocation or from the administration of the third chemical. (Exhibit 1, ¶ 41.)
45. That third chemical is potassium chloride, which is the substance that causes the death of the prisoner. It burns intensely as it goes through the veins toward the heart. Because the veins are running back to the heart after the arteries have carried it to the extremities, the blood runs more slowly than it does in the arteries. This prolongs the pain the prisoner suffers when the sodium pentothal wears off, as it is selected by surgical anesthetists because it does. (Exhibit 1, ¶¶ 43‐44.)
46. When the potassium chloride reaches the heart, it causes a heart attack. If the sodium pentothal has worn off by the time the potassium chloride reaches the heart (as it foreseeably would, given the shallow nature of the anesthesia sodium pentothal is supposed to produce, from the potassium chloride burning its way through the veins), the prisoner feels the pain of a heart attack, but no one but the prisoner can tell, because the pancuronium bromide has paralyzed his face, his arms, and his entire body
‐ 18 ‐

so that he cannot express himself either verbally or otherwise. (Exhibit 1, ¶¶ 43‐46.)
47. Veterinarians would not use any of these three chemicals in euthanizing animals, because the veterinary profession knows that the first is short‐acting and that the second and third are cruel means of bringing about the death of a sentient being; for these reasons it would be illegal to use either of the latter two chemicals in euthanizing a pet. (Exhibit 1, ¶¶ 25, 37‐40 & 47‐50.) They cause pain and suffering far in excess of what is necessary to bring about the mere extinguishment of life.
48. Veterinarians are forbidden to use these chemicals even though they may personally participate in euthanasia and may also recruit and retain the most qualified available personnel to assist them. By contrast, physicians are forbidden by the Hippocratic Oath and by positive law from participating in executions. (Exhibit 1, ¶¶ 55‐58.)
49. A veterinarian would use a lethal dose of pentobarbital, a long‐ acting anesthetic, to perform euthanasia consistently with professional regulations, positive law, and the values of humaneness which the latter norms reflect. This substance is an alternative to the three‐chemical formula the defendants use on other people. Although the plaintiff is
‐ 19 ‐

challenging the outstanding sentence of death against him by other judicial means (not in this civil action), and has applied for executive clemency, and is not advocating his own death, he points out pentobarbital as a specific alternative to the three‐chemical sequence, with the amount, concentration, and timing, and the qualifications of staff performing and monitoring the execution, to be determined in the course of discovery.
50. On April 16, 2005—the day after the Missouri Supreme Court set the execution date in the Vernon Brown case—Dr. David A. Lubarsky and three co‐authors published in the world‐renowned medical journal THE LANCET the results of their research on the effects of these chemicals in lethal injections in the few states which bothered to conduct autopsies and prepare toxicology reports, and which did not refuse to produce these data for these scholars.
51. This publication is Exhibit 2 to Exhibit 2, the declaration of the plaintiff’s expert witness Dr. Lubarsky.
52. The LANCET team found that in 43% of the lethal injections they studied, the prisoner had an inadequate amount of sodium pentothal in his bloodstream to provide anesthesia. (Exhibit 2, ¶ 16.) In other words, in close to half of the cases, the prisoner felt the suffering of suffocation from
‐ 20 ‐

pancuronium bromide, and the burning through the veins followed by the heart attack caused by the potassium chloride.
53. Another Missouri prisoner under sentence of death, Timothy Johnston, has filed an action before the United States District Court for the Eastern District of Missouri under 42 U.S.C. § 1983 raising a claim which substantially overlaps with the claim that this plaintiff is raising. Johnston v. Kempker, No. 4:04‐CV‐01075‐DJS (E.D. Mo. Mar. 31, 2005) (memorandum in support of motion to compel answers filed by plaintiff Johnston’s counsel).
54. Represented by the Office of the Attorney General, specifically Assistant Attorneys General Denise G. McElvein and Stephen David Hawke, the defendants in the Johnston case—including the predecessor in office of defendant Crawford and also defendant Purkett—have resisted virtually every syllable of discover promulgated by Mr. Johnston’s counsel, but have admitted, by their response to interrogatories to defendant Crawford’s predecessor in office (Exhibit 3 at 4), that the defendants use the three chemicals identified in this complaint, though the defendants have refused to disclose the amounts or the timing of their injection into the person.
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55. Although a Missouri statute specifies that death sentences will be carried out by lethal gas or lethal injection, it does not prescribe any given chemical to be used in either process, but leaves these decisions up to defendant Crawford.4
56. In Johnston v. Kempker, the defendants have refused to disclose the training or lack thereof which the actual executioners have had. Only blind faith would lead this Court to find that the personnel they have been able to recruit to participate in this activity have the skills of licensed medical and veterinary professionals which would be necessary to administer the chemicals in a minimally competent manner. (Exhibit 1, ¶¶ 55‐58; Exhibit 2, ¶¶ 19.f & 21.)
57. One of the defenses the Johnston defendants asserted was nonexhaustion of administrative remedies. (Exhibit 4 at 12‐13.) Mr. Johnston’s counsel filed an Informal Resolution Request (IRR) in which Mr. Johnston had sought to raise the grievance in his complaint, Mr. Jones’s, and Mr. Brown’s, but the Department of Corrections had not processed the grievance beyond noting in writing that it raised “a non‐grievable issue.” (Exhibit 5.) Although the Johnston defendants’ counsel, Ms. McElvein and
4Mo. Rev. Stat. § 546.720.
‐ 22 ‐

Mr. Hawke, filed a reply to the response to which this IRR was an exhibit, they did not dispute the plaintiff’s showing that because the issue was non‐ grievable according to the agency which promulgated the grievance policy on which the defense of nonexhaustion relied, the defense was unavailing. (Exhibit 6 at 5 (digitally signed “/s/Denise G. McElwein”).
58. On January 21, 2005, the undersigned counsel, while representing Vernon Brown, CP‐75, filed a pleading in the Missouri Supreme Court in response to its order to show cause why it should not set an execution date in Mr. Brown’s case, raising the grievance with the use of the three‐chemical sequence described in the attached declarations, and also arguing that the Missouri Supreme Court should not set an execution date while the defendants’ motion to dismiss was pending before the sister district court in Mr. Johnston’s case.
59. On April 15, 2005, the Missouri Supreme Court set an execution date on Mr. Brown notwithstanding his pleading as aforesaid, which it had duly filed and to which the Office of the Attorney General (specifically counsel of record for the state, Assistant Attorney General Stephen D. Hawke) filed no response.
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60. On April 16, 2005, Dr. Lubarsky (whose declaration is attached to this complaint) and his co‐authors published in the world‐renowned medical journal THE LANCET the article attached to Dr. Lubarsky’s declaration (Exhibit 2) as Exhibit 2.
61. This article confirmed, through the analysis of empirical after‐ the‐fact data, that the scientific critique of the use of sodium pentothal, pancuronium bromide, and potassium chloride creates a foreseeable risk of the gratuitous infliction of pain on a person being executed.
62. On April 21, 2005, Mr. Brown filed a petition for a writ of habeas corpus under Mo. S. Ct. R. 91 before the Missouri Supreme Court, renewing the grievance Mr. Brown had set forth on January 21, 2005, but with the additional authority of the LANCET article by Dr. Lubarsky and his co‐authors.
63. On the same day that Mr. Brown filed his state habeas corpus petition challenging this three‐chemical sequence on the new basis of the LANCET article, so did Donald Jones, CP‐110, represented by the undersigned court‐appointed counsel.
64. The Missouri Supreme Court denied Mr. Jones’s petition the next day.
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65. Represented by Michael A. Gross—his lead appointed counsel in the federal courts—Mr. Jones filed an action under 42 U.S.C. § 1983 on Monday, April 25, 2005, less than forty‐eight hours before his scheduled execution using this sequence of three chemicals.
66. The same day, the Court (the Hon. Rodney W. Sippel, District Judge) held a proceeding at which Mr. Jones was represented by Mr. Gross, and the defendants (including defendants Crawford and Purkett here) were represented by Assistant Attorneys General Denise McElwein, in person, and Andrew W. Hassell, by telephone. (Exhibit 7 is a true and correct copy of the transcript of proceedings in the Jones section 1983 action.)
67. Before Judge Sippel, Ms. McElwein (who had signed a pleading in the Johnston case recognizing by silence that the issue before Judge Sippel was non‐grievable) re‐raised the defense of nonexhaustion of administrative remedies:
. . . even if you look at this as a Section 1983 action, then it is barred under the Prison Litigation Reform Act because the plaintiff has failed to allege that he has exhausted his administrative remedies as required by the PLRA. And I think the PLRA is pretty clear that no action—it says: “No action shall be brought with
‐ 25 ‐

respect to prison conditions under Section 1983 until such administrative remedies as are available are exhausted.”
And according to this circuit in McAlphin v. Morgan, 216 F.3d. 680, which is a 2000 Eighth Circuit opinion, states that dismissal is appropriate in the absence of proof of exhaustion.5
68. Immediately before retiring to deliberate, Judge Sippel sought
to probe the facts regarding prisoners’ having raised the issue in Mr.
Jones’s section 1983 action, in a way that would have disclosed the
unavailability of an administrative remedy for Mr. Jones to have pursued:
THE COURT: Do you all know? I mean, it would be a matter of some significance if there was a claim that the dosage, if you will, was wrong and that the State should re‐examine the three‐drug treatment and use of the three drugs in what order and how much, strikes me that’s something you might know about if that had been an issue.
MS. MCELVEIN: Oh, you mean if he had filed a grievance?
THE COURT: As an officer of the court, can you tell me if you have any knowledge about a grievance to that effect?
MS. MCELVEIN: No, Your Honor, I do not.
THE COURT: Mr. Hassell?
MR. HASSELL: I have no knowledge, Your Honor.

5Exhibit 7 at 22‐23.

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THE COURT: It strikes me that they might have told you about it if that was becoming a big issue in the facility. MR. HASSELL: I would expect so, Your Honor, but I just donʹt know. THE COURT: Okay. All right. Iʹm going to take a short recess and give you a sense of where weʹre going. One way or the other, I suspect you might be in another court tomorrow some way, some how.6 69. Judge Sippel went back to chambers with Ms. McElvein’s
silence in his ears. She knew that Mr. Johnston had filed an IRR, and her
clients had held it “non‐grievable.” We do not presently have evidence
that Mr. Hassell knew about it until the undersigned faxed him to that
effect while the 1983 was still before the Eighth Circuit; we do have
evidence that Ms. McElvein did.
70. After retiring to deliberate under these circumstances, Judge
Sippel returned to the courtroom and announced that he was relying on
Ms. McElwein’s nonexhaustion defense as his first and basic reason for
denying relief: “the basis of my judgment will be that the complaint fails to
state a cause of action under Section 1983 for failure to exhaust
administrative remedies.” (Exhibit 7 at 30‐31.)
6Id. at 28‐29 (emphasis supplied).
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71. Over a vote of five to two for commutation by the Board of Probation & Parole, the Governor denied executive clemency, and the defendants executed Mr. Jones on April 27, 2005, at or about 12:01 a.m.
72. Later the same morning (after the fact of the execution was public knowledge), the district court (the Hon. Carol E. Jackson) granted Vernon Brown’s motion—filed before the Missouri Supreme Court had set an execution date in his case—for leave to proceed ex parte to request funding for expert and investigative services. Thereafter and thereby, Mr. Brown’s counsel were able to obtain the services, inter alia, of the senior co‐ author of the LANCET article published the day after the Missouri Supreme Court set Mr. Brown’s execution date.
73. After the sister district court allowed Vernon Brown’s counsel to seek funding for expert and investigative services without disclosing their mental impressions to opposing counsel, the Missouri Supreme Court summarily denied Mr. Brown’s habeas corpus action raising this issue, with explanation and without ordering the respondents to show cause or otherwise respond.
74. Vernon Brown filed an Informal Resolution Request seeking to raise the issue of the lethal injection chemicals (Exhibit 8), but received a
‐ 28 ‐

response different from the one which previous prisoners had received, with the special response in his case suggesting that there were multiple levels he would need to go through in order to exhaust his administrative remedies (Exhibit 9).
75. Counsel filed a verified complaint and accompanying papers on behalf of Mr. Brown as soon as counsel received the attached declarations prepared by the LANCET team (through Dr. Lubarsky) and by Dr. Mark Heath, the leading expert on the underlying mechanism under which the defendants’ three‐chemical sequence creates a foreseeable risk of inflicting gratuitous pain.
76. Unless the defendants answer several questions that the LANCET team has expressed through Dr. Lubarsky’s declaration (Exhibit 2, ¶¶ 19‐21), and which are reflected in the plaintiff’s discovery, the petitioner is entitled to the inference that because the defendants’ practices are substantially similar to those of the lethal‐injection jurisdictions which conducted autopsies and toxicology reports, which kept records of them, and which disclosed them to the LANCET scholars, there is at least the same risk (43%) as in those jurisdictions that he will not be anesthetized at the time of his death. (Exhibit 2, ¶¶ 22‐23.)
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77.In Mr. Brown’s case as aforesaid, counsel learned after filing the complaint in the United States District Court for the Eastern District of Missouri that the lead co‐author of a study he had already cited before the Missouri Supreme Court had completed his Ph.D. dissertation and that it included evidence bearing on the claim concerning the lethal‐injection chemicals and their administration.
78.By leave of court, counsel filed an amendment by interlineation with memorandum in support raising this additional claim.
79.Likewise in this action, the plaintiff relies on certain facts set forth in the Ph.D. dissertation of Michael Lenza, and in his declaration accompanying this memorandum, which is incorporated herein and marked as “Exhibit 10”; his curriculum vitae is attached to, incorporated in his declaration, and marked as “Declaration Exhibit 1.”
80.Plaintiff tendered Dr. Lenza as a witness at the hearing of May 13, 2005, on the motion for temporary restraining order in Vernon Brown’s case. Defendants were represented by Assistant Attorneys General Hawke and McElwein, and did not object when the district court declined the plaintiff’s offer to present live testimony from Dr. Lenza.
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81.Dr. Lenza’s Ph.D. dissertation is entitled POLITICS OF DEATH: A STATISTICAL, THEORETICAL, AND HISTORICAL EXAMINATION OF THE DEATH PENALTY IN MISSOURI, University of Missouri–Columbia (2005). It is attached hereto, incorporated herein, and marked as “Exhibit 11.”
82.Its central finding is that in the customs and practices of the State of Missouri, there is a strong historical association between the presence of black slavery, the incidence of lynching, and a disproportionate number of death sentences after Furman v. Georgia7 and Gregg v. Georgia.8 It bears not only on the absence of a lawful capital punishment régime—which is beyond the scope of this action—but also on the defendants’ selection of lethal‐injection chemicals that have an elevated likelihood of inflicting gratuitous pain, when they could use at least one (pentobarbital) which would—as they advertise their current practice, in contradiction to veterinary law and practice—be like putting a dog to sleep.
83.In the research for his dissertation, Dr. Lenza discovered that there is a strong historical association in fact within Missouri between counties that had the heaviest levels of black slavery until the Civil War, the

7408 U.S. 238 (1972). 8428 U.S. 153 (1976).

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incidence of lynching, and an elevated rate of death sentences after Furman v. Georgia and Gregg v. Georgia. (Exhibit 10.) In the judicial circuits falling into the slave and Southern cultural regions as Dr. Lenza defines them, a homicide case is 286% more likely to be prosecuted as a capital case and taken to trial as such than in the circuits he categories as urban. (Exhibit 11 at 232.) Such a case was 71% more likely to result in a death sentence. (Id. at 233.) Whether a case arose in the slave and Southern cultural regions was the most important variable in predicting death sentences even when compared such other reliable predictors to the color of the accused versus the color of the decedent, whether the accused was a stranger to the decedent, whether the homicide was performed with a knife (producing better gruesome photographs to inflame the jury), and whether the accused had prior convictions and was represented by a public defender (both of which are surrogates for lower socio‐economic status of the accused). (Id. at 233‐35.) These data are not samples, but the universe of cases; there is a 92% certainty that the associations Dr. Lenza found did not happen by chance fluctuation in the data. (Id. at 235.)
84.Just as 89% of executions occur in states which used to have slavery (Exhibit 11 at 3‐5), the practice of the death penalty in Missouri
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today is a reflection of the attitudes towards one’s fellow human beings which allowed slavery to exist and thrive until put down by force of arms.
85.An underlying explanatory principle is that slavery “vested white citizens with the power of the State to utilize extra‐legal violence to maintain the social order,” i.e., the supremacy of whites over African‐ Americans. (Exhibit 11 at viii.) Like all Ph.D. theses, this one finds that more research is called for, but also suggests that the results are consistent with the proposition that the death penalty is “an institutionalized social artifact of slavery, maintaining the racialized social order through violence, carried forth into our present by our social institutions.” (Exhibit 11 at 244.)
86.One of the subsidiary themes of Dr. Lenza’s dissertation is that greater pain was imposed on slaves and their descendents who were executed—officially or unofficially—than on members of the master race who were executed: this frequently took the form of burning alive (Exhibit 11 at 7, 63, 82, 108, 160‐62 & 174‐76), for which potassium chloride is as close as the defendants can get away with in the court of public opinion. See Exhibit 10, ¶¶ 8‐11.
87.Plaintiff does not here contend that the death penalty in Missouri is unlawful because despite the color‐neutral statutes, it discriminates
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against men of color and on other arbitrary or independently unlawful bases. Plaintiff does, however, plead—as in an intermediate premise in his claim for relief under the Thirteenth Amendment—that the death penalty in Missouri falls disproportionately on African‐American residents. Plaintiff pleads this premise in the course of establishing that the specific method of lethal injection the defendants have chosen is a badge of slavery.
88.In support of the intermediate premise regarding disparate impact of the death penalty, the plaintiff relies on four additional attachments, including one which was chiefly co‐authored by Dr. Lenza before he completed his dissertation. Because the plaintiff does not advance this premise as a freestanding ground for relief, this Court need not consider whether McCleskey v. Kemp9 need be overruled.
89.In other death‐sentenced persons’ cases before the Missouri Supreme Court, the Missouri State Public Defender System presented a study by University of Missouri–Columbia Professor John F. Galliher of the reports from Missouri circuit judges that the Missouri Supreme Court itself collected as the statute on proportionality review mandated. The Missouri State Public Defender System filed this study with the Missouri Supreme

9481 U.S. 279 (1987).

‐ 34 ‐

Court in State v. Parker.10 Plaintiff presents it here as Exhibit 12. There is also available on the Internet a subsequent report based on later and more inclusive data prepared by Professor Galliher’s original co‐author, Professor David Keys, and others, headed by Dr. Michael Lenza.11 Plaintiff presents it as Exhibit 13.
90.The original Galliher report was based entirely on the reports of Missouri trial judges in homicide cases that the Missouri Supreme Court gathered in response to Mo. Rev. Stat. § 565.035.6. The report showed that out of 439 death‐eligible cases during the period it covered, the prosecutors had waived the death penalty in 212, or 52%. (Exhibit 12 at 1.) The remainder of the report showed that aggravating and mitigating factors played virtually no role in determining whether a person actually got the death penalty for a homicide. (Id. at 2‐8.) For example, in respect to eight of the fourteen statutory aggravating factors, sentencers were more likely
10886 S.W.2d 908 (Mo. 1994) (en banc), cert. denied, 514 U.S. 1098 (1995), citing In re Estate of Danforth, 705 S.W.2d 609, 610 (Mo. Ct. App., S.D. 1986) (providing for judicial notice of the record resulting in an opinion to determine grounds on which opinion is based).
11M. LENZA ET AL., THE PREVAILING INJUSTICES IN THE APPLICATION OF THE DEATH PENALTY IN MISSOURI (1978‐1996) (2002), available May 18, 2004, at http://www.umsl.edu/divisions/artscience/forlanglit/mbp/Lenza1.html. (Exhibit 13.)
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to impose life without parole than death if they found that factor;12 in cases
where accused citizens received life without parole, the sentencer found an
average of 2.17 statutory mitigating factors, whereas in cases where the
accused received a death sentence, the sentencer found 2.2.13 Whereas the
relationship between the total number of aggravating factors and a
sentence of death is positive, it is only slightly so. (Id. at 2‐3.)
91.By contrast, the clearest, strongest predictor of whether a
prosecutor would seek the death penalty was whether the accused was a
black person and the decedent was a white person. In 89% of the cases in
which prosecutors waived the death penalty, the accused and the decedent
were the same color, and prosecutors rarely charged whites for killing
blacks. (Id. at 11.) Prosecutors were radically less likely to waive the death
penalty in cases where they charged blacks with killing whites than in any
other class of death‐eligible cases: For black offenders 44 percent of those receiving the death penalty killed a white victim, 44 percent of black offenders sentenced by a jury to life in prison killed a white victim, but only 18 percent of black offenders where the death penalty was waived killed a white victim. These figures indicate that in

12Id. at 4‐5. 13Id. at 6.

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Missouri the race of the victim makes little difference for the legal outcome of white offenders, but for black offenders killing a white victim severely reduces the chances of having the death penalty waived by the prosecution—a reduction from 97 percent of white offenders who had killed white victims to 78 percent of black offenders who had killed white victims.14
92.The Galliher study examined the influence of youth on charging
and sentencing decisions, because it is a statutory mitigating factor. The
data from the circuit judges collected by the Missouri Supreme Court
showed that youth was a mitigating factor for white accused citizens but
not for black ones:
Among cases where the prosecution waived the death penalty 14 percent of defendants were 18 years old or less, and 32 percent were 21 or less with a mean age of 28.2 years. In cases where a jury handed down a life sentence 9 percent were 18 or less, and 25 percent were 21 or less with a mean age of 28.2 years—exactly the same average age as for cases in which the prosecutor waived the death penalty. Those receiving the death penalty were slightly older than others. Prosecutors perhaps correctly perceive the common bias of jurors against imposing the death penalty against the very young.
. . .
The mean age of black offenders sentenced to death is 27.7 years, and for whites the mean age is 35
14Id. at 11 (emphasis supplied).
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years. Twenty‐two percent of black defendants under the age of 21 were sentenced to death, while this was true of only 14 percent of white offenders under 21.15
The authors concluded that “young black defendants are in greater
jeopardy of a death sentence than are white offenders.”16
93.Another factor that the Galliher study explored was the reputation
of the decedent as a mitigating factor. The data from the circuit judges, as
collected by the Missouri Supreme Court, showed that the reputation of the
decedent made a difference only if the decedent was white:
While killing a white person with a bad reputation nearly always saved a defendant from death, it is much less likely to operate in the same fashion in the case of black victims. Perhaps this is true because all black victims were devalued whether or not they were noted to have a bad reputation.17
94.Prosecutors waived the death penalty as a rule if the accused was
a woman, as long as she was white:
Prosecutors seem less likely to seek the death penalty against female defendants than juries are to sentence females to death. The application of this apparent chivalry is, however, differentially distributed across races. Among death waived
15Id. at 8. 16Id. at 17. 17Id. at 13.
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cases 20 percent of white offenders and only 3 percent of black offenders were females. In other words, white females were proportionately nearly seven times as likely to benefit from a waived death penalty as were black females.18 95.Dr. Lenza’s study included data into 1996, and was not available until 2002. Whereas the Galliher study observed that the reports from the trial judges in the Missouri Supreme Court’s database were incomplete, and listed 189 names of persons in the Department of Corrections for death‐eligible offenses at the relevant time that were missing from the database,19 the authors of the Lenza et al. study used FBI Supplemental Homicide Reports to enhance their coverage.20 They divided capital cases into three stages: (1) the prosecutor’s decision whether to charge a death‐ eligible offense, (2) the prosecutor’s decision whether to seek the death penalty for a death‐eligible offense, and (3) the result of a penalty phase once the prosecutor had decided to seek death.21 The first stage accounts for most of the decision‐making, as prosecutors charged only 5.8% of homicides (574 out of 9857) as death‐eligible cases; the second stage
18Id. at 16. 19Id. at 18 & attached memorandum. 20Exhibit 13:4 21Id. at 4‐5.
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accounts for the next largest number of decisions, as prosecutors waived the death penalty in 49% of the cases they had charged as death‐eligible (270 out of 551).22 Of the remaining cases, circuit courts sentenced 54% of the accused (152 out of 281) to death.23
96.At the first stage, in which the prosecutor decides whether to charge a homicide as “capital murder” or “first‐degree murder” (depending on the statutory classification of death‐eligible homicide at the time of the case), Missouri prosecutors were almost twice as likely to charge a black who killed a white with death‐eligible homicide as they were to charge a white who killed a black:24
22Id. at 4‐5. The authors dropped 23 cases due to insufficient data. 23Id. at 5. 24Id. at 8.
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Accused/Decedent Capital Total

Percent

White/Black

274

2945

8.39%

White/White

12

254

4.72%

Black/Black

188

6045

3.11%

Black/White

88

599

14.69%

Missing Cases

12

14

N/A

Totals

574

9857

5.8%

The authors explained that these data confirmed previous studies:

The percentages of all Missouri homicides charged with capital murder by offender/victim racial characteristics indicates blacks killing whites are 5 times more likely to be charged with capital murder than blacks killing blacks. Whites with black victims are half as likely to be charged with capital murder than whites killing other whites. . . . this pattern confirms the suspicion that whiteness is valued over non‐whiteness, predicting that the severest punishment would be visited on cases where the non‐white offender kills a Caucasian (‐/+) 14.69%, followed by a descending hierarchical structuring of the proportion of cases charged with capital murder based on racial characteristics: whites killing whites (+/+) 8.39%, whites killing blacks (+/‐) 4.72%, to the lowest, blacks killing blacks (‐/‐) 3.11%.25

25Id. at 14 (emphasis supplied). ‐ 41 ‐

97.At the next stage of a capital case—the prosecutor’s decision
whether to waive the death penalty for a death‐eligible homicide—the
Lenza study found that the color of the accused and the color of the
decedent played a strong explanatory role:
Compared to whites killing whites (W/W) one sees that blacks with black victims (B/B) are 59% less likely to be taken forward to trial, while blacks killing whites (B/W) are 56% more likely than (W/W) to be taken to trial. In the few cases where whites have killed a black victim and were charged with capital murder, they were 115% more likely to be taken to trial than whites taking the lives of other whites. The last category, whites killing blacks (W/B), represents the only 12 cases in Missouri over 18 years in which white defendants were charged with capital murder for killing an African‐ American, a mere 2% of the total cases.26
98.In contrast to the decisions made by prosecutors, the Lenza et al.
study found, the decisions made by judges and juries in the third stage of a
capital case—the actual sentence—did not reflect bias according to the
color of the accused or the color of the decedent.27 The Lenza et al. study
found other factors—such as low socio‐economic status of the accused and
the availability of gruesome photographs to inflame the jury—that were

26Id. at 15. 27Id. at 15‐16.

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associated with prosecutorial decisions to seek death.28 For example,
whereas juries and sentencing judges did not in fact respond measurably
differently to cases involving the use of firearms as opposed to knives,
prosecutors were 133% more likely to seek the death penalty in knife cases,
such as the instant case, because they produce more gruesome photographs
they could use to inflame the jury, as this prosecutor did, regardless of the
relative moral blameworthiness of the offense.29 The conclusions of the
Lenza study pointed to prosecutorial discretion as the main cause of racial
disparity in the use of the death penalty in Missouri:
the seat of prosecutorial discretion is also the location of and the mechanism responsible for the greatest racial disproportionality in capital sentencing [in] Missouri. It is those elements of the process, in the hands of prosecutors, who are charged with selecting offenders and crimes for eventual capital consideration and sentencing, that put in place factors which proportionate sentencing has sought to avoid.30
99.In 2001, the Executive Director of the ACLU of Eastern Missouri
presented data on Missouri death sentences both from the time the state
created a central execution process in 1937 until 1965, when the pre‐Furman

28Id. at 17‐19 & 20‐22. 29Id. at 17‐18. 30Id. at 22.

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moratorium took effect, and then from the post‐Gregg reinstitution of the death penalty until the date the paper was written in October 2001.31 This study, which was obviously not available at the time of the plaintiff’s consolidated appeal, complements the data the Missouri State Public Defender System had provided the Missouri Supreme Court in State v. Parker. Initially this paper emphasizes the variation among counties in the state: several sizable counties had no one under sentence of death, regardless of their homicide rate.32
100. From the creation of a centralized state death penalty to the pre‐Furman moratorium, the split between black and white persons that Missouri executed was 23 to 16 over almost thirty years.33 The split after Gregg was 21 to 30 to one Native American over about eleven years.34 The
31DENISE LIEBERMAN, Legal Director, American Civil Liberties Union of Eastern Missouri, PROSECUTORS: THE FIRST LINE OF OFFENSE— PROSECUTORIAL DISCRETION AND ARBITRARINESS IN ADMINISTRATION OF THE DEATH PENALTY, http://www.umsl.edu/~phillips/dp/ACLUDenise.html (2001) (Exhibit 14.)
32Id. at 5‐10. 33Id. at 1‐2. 34Id. at 11.
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state achieved this leveling of racial impact by increasing the executions

per year by about 300%, and killing more white men:35

Period Black

1937‐65 23

1989‐

21

2001

Totals 47

White
16 30
43

Native American 0 1

Total
39 52

1

91

Years
28 12
40

Annual Rate 1.4 4.3
2.3

101. Although this state is executing more white men, its death penalty continues to fall on black men convicted of killing whites far out of proportion to any other combination of homicide convicts and their decedents. While the death penalty continues to target black men out of proportion to their numbers, it has added white men to the pie of persons executed and has thereby decreased the proportion of blacks.
102. A 2003 article—which is not limited to Missouri data—shows that support for the death penalty among white people tends to vary strongly according to a combination of racial prejudice and the proximity of black residents to the person surveyed:36

35Id. at 11‐12. 36J. SOSS ET AL., Why Do White Americans Support the Death Penalty? 65 J. OF POLITICS 397, 409 (2003). (Exhibit 15.)
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as the black percentage of a county’s population rises, racial prejudice becomes a much more powerful predictor of whether a white person will strongly favor state executions. Indeed, the effect of context on the relationship between prejudice and white support is dramatic. Among white people who live in all‐white counties, the largest possible increase in prejudice (from 0 to 100) produces only a 34‐point increase in the probability of strong death penalty support (from .52 to .86). By contrast, when the black percentage of the county population stands just below 20%, the same increase in prejudice raises the probability of strong support from fairly unlikely (.29) to a virtual certainty (.95). Thus, the interplay of racial beliefs and racial proximity go far to explain strong white preferences for state executions—but neither factor can be adequately understood in isolation from the other.37
103. The case against this plaintiff arose in Jackson County, one with
a high proportion of African‐American citizens, yet one in which they are a
distinct minority. This is exactly the kind of jurisdiction in which the
foregoing article would predict a high correlation between racist attitudes
and support for the death penalty.
104. As elected officers who retain their positions at the will of the
electorate, Missouri prosecutors are presumptively aware of and
responsive to the level of support for the death penalty. In its current form,
the prosecutorial discretion created by Missouri statutes leads to racial

37Id. at 411.

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discrimination in the imposition of the death penalty. The longitudinal data in the latter two articles cited in this response raise the question whether after Furman and Gregg have addressed various aspects of fairness at the jury and trial‐judge level, it is possible in any case for there to be a death‐charging decision which is free from impermissible attention—one way or the other—to the color of the accused and the color of the decedent.
105. Because the death penalty as practiced in Missouri both before and after Furman and Gregg is disproportionately applied against African‐ American men like Stanley Hall, Donald Jones, and Vernon Brown—and this plaintiff—the fact that it is more tortuous than it need be is consistent with the behavior Dr. Lenza found beginning with the introduction of slavery into the Missouri Territory.
106. The use of a gratuitously painful form of suffocation, followed by the burning through the veins and the heart attack caused by potassium chloride, instead of a single, lethal dose of an otherwise legitimate medication such as pentobarbital is evidence that the state keeps the death penalty around primarily for “them.”
107. The proposition that the death penalty itself bears more heavily against blacks than whites is not before this Court as a claim for relief. In
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light of this fact, however, the additional fact that the defendants use a special form of lethal injection which creates a foreseeable, completely unnecessary, risk of inflicting gratuitous pain and suffering, when the executions of slaves and their descendants have historically been more painful than the execution of others in a slave jurisdiction such as Missouri, is a badge or vestige of slavery over and above the existence of the death penalty in the abstract and over and above the judicial decision to impose the death penalty in a given case.
VII. Claims for Relief 108. Plaintiff restates and realleges the contents of each preceding paragraph as if fully set forth again.
Claim I 109. Unless this Court stops them, the defendants, acting individually and under color of state law, will violate the plaintiff’s right to be free of cruel and unusual punishments secured to him by the Eighth Amendment to the Constitution of the United States as applied against the states by section 1 of the Fourteenth Amendment by executing him using the sequence of three chemicals (sodium pentothal a/k/a thiopental, pancuronium bromide, and potassium chloride) which they have admitted
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to be their practice in their discovery responses in Johnston v. Kempker as aforesaid, which is unnecessary as a means of employing lethal injection and not required by the statute creating this form of execution in the State of Missouri, and which creates a foreseeable risk of inflicting gratuitous pain and suffering.
Claim II 110. Defendants’ chosen use of a specific form of lethal injection which is more painful than necessary to bring about the statutory objective of killing the condemned person is a vestige and badge of slavery, and therefore violates the Thirteenth Amendment as well as the Eighth and Fourteenth, and impinges on the vertical‐equity (color and socio‐economic status of accused) and horizontal‐equity (irrationality of who among the mass of homicide defendants gets the death penalty, even irrespective of color and SES) prongs of Eighth Amendment analysis (applied against the states through the Fourteenth) as well as the severity prong, the latter of which is the focus of Count I.
VIII. Exhaustion of Administrative Remedies 111. Plaintiff has exhausted any available administrative remedy for the issues contained in this complaint, because the selection of chemicals
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for lethal injection is not a grievable issue within the meaning of the administrative grievance procedure as adopted and applied by the defendants’ actual penological agents as distinguished from the Department’s outside counsel in the Attorney General’s Office, and these agents have so informed him in response to his attempt to seek administrative remedies. (Exhibit 16.)
112. As noted, in the Johnston, Jones, and Brown litigation, the defendants initially asserted that the plaintiff had failed to exhaust administrative remedies.
113. In Johnston, the defendants’ clients in the Department of Corrections had admitted, by signed notation on Mr. Johnston’s IRR, that the issue of which chemicals the executioners use is “non‐grievable.” (Exhibit 5).
114. Counsel for the defendants in Johnston (who were also counsel for the defendants in Jones and Brown) recognized this fact by dropping the nonexhaustion point in the reply to Mr. Johnston’s response to which the IRR was attached as an exhibit. (Exhibit 6.)
115. The same counsel raised the same defense in Jones, knowing that this issue was not grievable according to the Department of
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Corrections, in whose favor the exhaustion requirement of 42 U.S.C. § 1997e is supposed to run; the Court relied on her representations; Mr. Jones was executed by the use of the specific chemical sequence which Mr. Johnston’s pleadings and Mr. Jones’s pleadings showed to create a foreseeable risk of inflicting gratuitous pain and suffering in violation of the Eighth and Fourteenth Amendments.
116. As of the time this claim manifested itself beyond cavil with the publication of the LANCET article, Vernon Brown was not only aware of what happened to Mr. Johnston’s grievance but had also heard that when other prisoners have attempted to file IRR’s on this issue, the staff of the Department of Corrections have actually refused to give them IRR forms because of the Department’s position that the issue was not grievable. (Exhibit 8.)
117. Nonetheless, on the advice of counsel, Mr. Brown filed an IRR, and this plaintiff, Michael Taylor, submits a true and correct copy of it with the above‐referenced affidavit by Mr. Brown as Exhibit 8. This filing was expressly made in an abundance of caution and not by way of admission that the issue is grievable notwithstanding the well‐established position of the Department of Corrections, reflected both to the federal courts through
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counsel and to the prisoners affected by the issue by the staff of the Department.
118. Because the issue which chemicals the state uses in lethal injections is not within the scope of the Department of Corrections grievance policy, this complaint is not subject to the requirement of 42 U.S.C. § 1997e.
119. Parties in privity with the State of Missouri, such as these defendants, are estopped to assert the nonexhaustion of administrative remedies because the Department of Corrections does not consider this issue grievable (and their attorneys know it).
120. In Mr. Brown’s case, the staff who responded to Mr. Brown’s IRR changed the response from what it had been in Johnston and what Mr. Brown had heard it had been to other prisoners under sentence of death, and asserted that Mr. Brown—whose execution date had already been set—had to pursue multiple levels of review in order to exhaust administrative remedies on the issue. (Exhibit 9.)
121. In Mr. Brown’s case, the district court relied on these representations to deny a temporary restraining order. A divided United States Court of Appeals for the Eighth Circuit denied a stay of execution, as
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did the United States Supreme Court over the dissenting votes of four Justices, and Mr. Brown was executed on May 18, 2005.
122. This plaintiff, Michael Taylor, filed an Informal Resolution Request, and the staff returned it to him with the explanation that he could not file it because the subject‐matter of the issue was not grievable but was involved in litigation. (Exhibit 16.) Defendants’ counsel are estopped to contradict their clients’ correct interpretation of their own administrative regulations in order to avoid this issue once more.
123. After counsel had prepared and circulated a complete draft of this complaint, he received a telephone call from the plaintiff, Mr. Taylor, indicating that the staff had told the plaintiff he could, after all, file an IRR, but that there was no guaranty the result would be any different. Plaintiff is proceeding with the re‐filing of an IRR.
124. Pendency of this new IRR need not delay the filing of this complaint. Selection of a specific means of lethal injection is not a “prison condition” within the meaning of 42 U.S.C. § 1997e(a), the source of the requirement of exhaustion of administrative remedies. Selection of a specific means of lethal injection is not a matter of “institutional life” within the meaning of the administrative remedy the Department of Corrections
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adopted to take advantage of section 1997e. (Exhibit 17 at 2, ¶ D5‐3.2, II.J.) Defendants’ agents have admitted the inapplicability of the grievance procedure in Johnston. (Exhibits 5‐6.)
125. This Court should not allow the defendants to avoid accountability for their actions by invoking section 1997e. Their shift of ground in the Vernon Brown case was belied by their attorneys’ admissions in the hearing on Mr. Brown’s motion for a temporary restraining order. During the hearing, the issue of exhaustion of administrative remedies was discussed at some length. Defendants represented the complete exhaustion of administrative remedies requires three steps: (1) the filing of an IRR, (2) the filing of a grievance, and (3) the filing of a grievance appeal. (Exhibit 18 at 60.) Defendants further represented the grievance is filed with the superintendent of the institution where the prisoner is incarcerated, and the grievance appeal is addressed by “central office,” which counsel for the defendants elided with defendant Crawford, the Director of the Department of Corrections. (Id. at 61‐62.)
126. In Vernon Brown’s case, the defendants—who were the same as the defendants in Johnston and Jones, and one of whom was opposing counsel on this plaintiff’s federal habeas corpus petition and on his motion
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to recall the mandate of the Missouri Supreme Court—conceded that the corrections classification worker who would address the initial IRR has no authority to change the lethal injection protocol; they further conceded the superintendent of the institution where the prisoner is incarcerated has no authority to change the protocol for the lethal injection. (Id. at 61.) They admitted the only person with authority to change the protocol would be defendant Crawford. When asked whether an inmate had the ability to bring an initial grievance before the Director, they conceded there was no procedure for that:
THE COURT: Okay. Could Mr. [Brown] have bypassed the IRR procedure and the grievance? Since it is clear that no one at the institution had authority to make any changes, could he have bypassed the institutional officials and gone directly to the director with his complaint? MS. McElvein: No, your Honor. Not that I am aware of. [Id. at 62‐63.] 127. There is therefore no administrative process available to the plaintiff to grieve this claim. By the defendants’ admissions in open court, the Director’s role in the normal administrative process is to function as an appellate decisionmaker, reviewing the disposition of the grievance filed with the superintendent of the institution where the prisoner is
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incarcerated. In this case, the defendants concede that the superintendent of an institution, even of the institution where the executions occur, has no authority—no jurisdiction—to change the protocol for lethal injections. Thus, as the appellate decisionmaker reviewing any decision made by the superintendent, the only role the Director would serve would be to determine whether the superintendent correctly determined the superintendent had no authority to change the chemicals which other personnel use in lethal injections. The Director’s appellate role in the administrative grievance process is not the same as his role as the initial decisionmaker. Here, the defendants have conceded there was no administrative grievance procedure available to seek to change the Director’s position as the initial decisionmaker, rather than in the role of an appellate decisionmaker reviewing the question whether the superintendent had the authority to determine which chemicals to use, which they concede he does not.
128. It is therefore irrelevant whether the staff of the Department of Corrections adhere to their correct position that the issue in this plaintiff’s IRR is not grievable, or attempt to manipulate this Court as they did a sister court in Vernon Brown’s case by moving the goalposts.
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129. Missouri does not provide an administrative grievance process for presenting this issue, and therefore section 1997e would not apply even if the method of execution were a “prison condition,” even if “institutional death” equaled “institutional life,” and even if the United Nations Convention Against Torture were not part of “the supreme law of the land” requiring the United States to afford the plaintiff a forum for raising this issue.
IX. Prayer for Relief 130. Initially, the plaintiff seeks a preliminary injunction to prevent the defendants from executing him until the defendants have responded to his discovery (including what appears to be the inevitable time it will take to litigate motions to compel as Mr. Johnson has had to do) and until this Court has adjudicated his underlying claim for relief on the merits (including the time it would take for any appeal from the disposition). 131. Second, the plaintiff seeks a declaratory judgment holding that the defendants’ current means, methods, practices, procedures, and customs regarding execution by lethal injection violate the Eighth, Thirteenth, and Fourteenth Amendments.
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132. Plaintiff seeks a permanent injunction preventing the

defendants from using their current means, methods, practice, procedures,

and customs regarding execution by lethal injection.

133. Finally, the plaintiff seeks an order granting him reasonable

attorney fees under 42 U.S.C. § 1988 and the laws of the United States; for

his costs of suit; and for such other and further relief as the Court deems

appropriate.

WHEREFORE, the plaintiff prays the Court for its orders as

aforesaid.

Respectfully submitted,

JOHN WILLIAM SIMON, J.D., PH.D.

/s/ John William Simon

Of Counsel Sindel, Sindel & Noble, P.C.

2683 South Big Bend Boulevard, # 12 St. Louis, Missouri 63143‐2100

(314) 645‐1776 FAX (314) 645‐2125

Attorney for Plaintiff

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- 59 -

- 60 -

Declaration of Verification COMES NOW the declarant, John William Simon, and as authorized by 28 U.S.C. § 1746, states and declares under penalty of perjury all as follows: 1. My name is John William Simon. 2. I live in Richmond Heights, Missouri. 3. I am a member of the Missouri Bar (Enrollment No. 34535), and of the bars of the Supreme Court of the United States, the United States Court of Appeals for the Seventh and Eighth Circuits, and of the United States District Courts for the Eastern and Western Districts of Missouri. 4. I hold an A.B. summa cum laude, Phi Beta Kappa, with distinction in Philosophy and Political Science from Boston University; an A.M. and a Ph.D. in Political Science from Harvard University; and a J.D. from the Yale Law School. 5. I taught constitutional law and other subjects in the discipline of political science for eight and one‐half years. 6. I have practiced law full‐time since my admission to the bar in 1985, having worked as a summer clerk or law clerk from my first summer of law school until my admission.
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7. I have handled capital cases in federal habeas corpus and in state court from both sides since 1991, first for the State of Missouri and its privies, and thereafter for persons accused of capital crimes or sentenced to death by the federal government or the State of Missouri.
8. I have personally prepared the foregoing pleading. 9. Insofar as I am a witness to the transactions and occurrences set forth in the foregoing pleading, such as pleadings filed, representations made, and responses and orders received in the cases of Donald Jones and Vernon Brown, the statements in the pleading are true and correct according to my personal knowledge and belief. 10. The documents I have attached to this pleading are true and correct copies of the masters or originals in my possession, custody, and control. Further, the declarant saith naught. I declare under penalty of perjury that the foregoing is true and correct.
IAM SIMON

Certificate of Service I hereby certify a true and correct copy of the foregoing was forwarded for transmission via Electronic Case Filing (ECF) or otherwise e‐ mailed this third day of June, 2005, to the offices of:
Stephen David Hawke, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, Missouri 65102 stephen.hawke@ago.mo.gov
/s/ John William Simon Attorney for Plaintiff
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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR, Plaintiff,
v.
LARRY CRAWFORD, et al., Defendants.

) ) ) ) ) ) No. 05‐4173‐CV‐C‐SOW ) ) ) )

NOTICE OF FILING OF EXHIBIT OR EXHIBITS COMES NOW the plaintiff, Michael Anthony Taylor, by and through counsel, John William Simon, and gives notice of his filing of the attached exhibit or exhibits to the pending verified complaint, allocated so as not to have one filing greater than two megabytes.

Respectfully submitted,

JOHN WILLIAM SIMON, J.D., PH.D.

Of Counsel Sindel, Sindel & Noble, P.C.

s/John William Simon 2683 South Big Bend Boulevard, # 12 St. Louis, Missouri 63143‐2100

(314) 645‐1776 FAX (314) 645‐2125

Attorney for Plaintiff

Certificate of Service I hereby certify a true and correct copy of the foregoing was

forwarded for transmission via Electronic Case Filing (ECF) or otherwise e‐

mailed this third day of June, 2005, to the offices of:
Stephen David Hawke, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, Missouri 65102 stephen.hawke@ago.mo.gov

/s/ John William Simon Attorney for Plaintiff

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DECLARATION OF MARK J.S. HEATH, M.D. COMES NOW the declarant, Mark J.S. Heath, M.D., as authorized by 28 U.S.C. § 1746, and states and declares all as follows:
I. Foundation 1. My name is Mark J.S. Heath. 2. I live in New York City. 3. I earned a B.A. in Biology, magna cum laude, from Harvard University, and an M.D. from the University of North Carolina at Chapel Hill. 4. I am licensed to practice medicine in the State of New York. 5. I am diplomate of the American Board of Anesthesiology, i.e., I am a board‐certified anesthesiologist. 6. I have taught anesthesiology since 1993. 7. I serve as an Assistant Professor of Clinical Anesthesiology at Columbia University. 8. My work consists of approximately equal parts of performing clinical anesthesiology, teaching residents, fellows and medical students, and managing an NIH‐funded neuroscience laboratory.
Taylor v. Crawford Exhibit 1

9. Additional credentials, including 27 publications, are listed on my curriculum vitae, which is attached hereto, incorporated herein, and marked as Heath Exhibit 1.
10. As a result of my training, practice, and research as an anesthesiologist, I am familiar and proficient with the basic science involved in producing and reversing unconsciousness in human beings and other mammals by means of chemicals, and also in the applied science of carrying out this objective through the use of equipment, medications, and techniques.
11. This knowledge of basic and applied science includes the the pharmacology of the chemicals, involved in lethal injections as they have been conducted from the late 1970’s through the present.
12. I have performed several hundred hours of research into the techniques that are used in lethal injections. This research has included the parallel and related subject of veterinary euthanasia.
13. I have been admitted as a medical or scientific expert witness in courts in Georgia, Tennessee, Kentucky, Pennsylvania, Virginia, and Louisiana. I have provided affidavits that have been reviewed by courts in the above jurisdictions and also in Kentucky, New York, Alabama,
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Maryland, North Carolina, South Carolina, Connecticut, Ohio, Oklahoma, Tennessee, Texas, California, and also in the United States Supreme Court.
14. During court proceedings, I have listened to testimony from prison officials who are responsible for conducting executions by lethal injection. I have reviewed protocols and/or lethal injection legislation from Missouri and from multiple additional states.
15. I have testified by invitation before the Pennsylvania Senate Judiciary Committee regarding proposed legislation to remove pancuronium bromide from Pennsylvania’s lethal injection protocol. I have testified before the Nebraska Senate Judiciary Committee regarding proposed legislation to adopt lethal injection as a method of execution. I have testified before the New Jersey Department of Corrections regarding proposed regulatory amendments to the lethal injection protocol. I have delivered multiple lectures on the subject of anesthesia during lethal injection.
16. My research regarding lethal injection has involved both extensive conversations with recognized experts in the field and personal correspondence with the individuals responsible for introducing lethal injection as a method of execution in Oklahoma (the first state to formulate the procedure) and the federal government.
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17. Based on my training, experience, research, and analysis as aforesaid, I express the opinions set forth in the affidavit to a reasonable degree of medical certainty. The fact that this standard is expressly cited in connection with any specific premise in this document is not intended to imply that any other premises are not set forth to the same standard.
18. I have reviewed the discovery responses which the defendants in Timothy Johnston v. Gary B. Kempker, No. 4:04‐CV‐01075‐DJS, an action under 42 U.S.C. § 1983 before the United States Court of Appeals for the Eastern District of Missouri challenging Missouri’s practice of lethal injection.
II. Chemicals Used in Missouri Lethal Injections A. Thiopental (Sodium Pentothal)
19. On page 4 of defendant Kempker’s response to interrogatories, he says that the State of Missouri uses sodium pentothal, pancuronium bromide, and potassium chloride.
20. Sodium thiopental (also known as “pentothal”, and commonly shortened by practitioners to “thiopental”) is a member of the group of drugs known as barbiturates. This group is subdivided on the basis of duration of action into the “long acting,” the “intermediate acting,” the
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“short acting,” and the “ultra‐short acting” barbiturates. Sodium thiopental belongs to the class of ultra‐short acting barbiturates.
21. The medical utility of thiopental is that because of its ultra‐ short duration of action it can be used to render a patient unconscious for brief periods of time, in the range of a few seconds to a few minutes, and that because it “wears off” quickly patients regain consciousness rapidly. The ultra‐short duration of thiopental is medically important to anesthesiologists because sometimes during the induction of general anesthesia it is not possible to establish an airway for the patient, and the only recourse is to allow the anesthetic to wear off before the patient succumbs to suffocation. Procedures for administering general anesthetics and achieving a deeper, more sustained “surgical plane” of anesthesia commonly involve “intubation,” or the placement of a tube in the patient’s trachea, in order to facilitate mechanical ventilation.
22. Once the “induction” phase of a general anesthetic is completed, the “maintenance” phase is instituted. Typically during this phase mechanical ventilation is used to deliver a continuous dose of volatile anesthetic gasses (inhaled anesthetics).
23. If a prisoner being executed is given a sufficiently low dose of thiopental he will be similarly rendered unconscious for a period of time as
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short as a few seconds. He would then regain consciousness only to find himself paralyzed by pancuronium bromide; he would next experience the pain from an intravenous concentrated potassium chloride injection coursing through his veins and causing cardiac arrest.
24. Using an ultra‐short acting barbiturate, which produces more transient anesthesia than longer acting barbiturates, needlessly increases the risk that the prisoner will regain consciousness, and therefore will suffer extreme pain prior to and during his death by cardiac arrest from potassium chloride. Injection of concentrated potassium chloride is well‐ documented to cause excruciating pain in humans and animals.
25. Although veterinarians often use barbiturates for euthanasia of household pets, they rarely if ever use ultra‐short acting barbiturates. Most commonly veterinarians use pentobarbital, an intermediate‐acting barbiturate with a half‐life of many hours. This ensures that the animal cannot regain consciousness once the animal has been anesthetized for the purpose of euthanasia. When given in the high doses used by veterinarians for achieving euthanasia, pentobarbital produces the rapid and painless onset of unconsciousness without the known attributes of thiopental such as short duration of anesthesia.
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26. Thiopental has a short “shelf life” in liquid form. Sodium pentothal is therefore distributed in powder form to increase its shelf life; it must be properly mixed into a liquid solution before it can be injected. Proper mixing requires appropriate training, experience, and proficiency on the part of the responsible individual. For example, the package insert supplied with Pentothal, a brand of thiopental, states that only individuals with experience in the administration of intravenous anesthetics should administer this drug. Notably, the great majority of physicians, nurses, emergency responders, phlebotomists, and other health care professionals have no experience with the administration of intravenous anesthetics.
B. Pancuronium Bromide 27. The second chemical the Johnston defendants state they use in
lethal injections, pancuronium bromide (sometimes referred to simply as “pancuronium” or “Pavulon”), paralyzes all voluntary muscles, but does not affect sensation, consciousness, cognition, or the ability to feel pain and suffocation.
28. Pancuronium bromide is a member of a group of drugs called neuromuscular blockers. These drugs block the transmission of the signals that pass from nerve endings to voluntary muscles. Pancuronium has no
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significant effect on the brain or on nerves that carry sensory information. The effect of pancuronium is to render a person or animal completely paralyzed, so that no voluntary movement of any kind can be achieved.
29. Pancuronium has no anesthetic or sedative properties, and therefore an individual who is paralyzed by pancuronium is fully conscious and able to feel, hear, see, and smell. Because the muscles that enable breathing are paralyzed by pancuronium, such an individual would immediately on its administration begin to suffocate, but would be unable to cry out or express that he was conscious and suffering.
30. Conscious paralysis is not a theoretical construct but is a real and much‐feared complication of general anesthesia. In this context it is sometimes referred to as “intraoperative awareness.” When this occurs, patients are conscious, paralyzed, feeling the pain of surgery, and unable to communicate with the personnel in the operating room. Because of the risk of intraoperative awareness, anesthesiologists receive extensive training in the use of monitoring equipment and diagnostic techniques to ensure to the greatest extent possible that their patients are not awake while paralyzed during surgery.
31. In Johnston v. Kempker, the defendants’ discovery responses fail to prove or even assert that the executioners (or indeed any participant in
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the procedure) have been trained in the detection and prevention of conscious paralysis or intraoperative awareness, or that they are even aware that such a possibility exists.
32. The Johnston defendants’ discovery responses do not assert a reason why they administer pancuronium bromide. They do not assert that it is a lethal dose.
33. Individuals who are paralyzed by pancuronium appear tranquil, relaxed, and serene, regardless of whether they are conscious or unconscious. Pancuronium places a “chemical veil” over the execution, and makes it impossible for any witnesses to make a meaningful determination about whether the execution they observe is being conducted without the infliction of gratuitous pain.
34. Because the defendants use pancuronium bromide, regardless of whether the prisoner is awake or anesthetized, and regardless of whether the execution is humane or cruel, the execution will appear humane to the media and to any other witnesses.
35. The inclusion of pancuronium in the chemicals the defendants disclosed in their Johnston discovery responses compounds the needless risk arising from their choice to use a short‐acting, shallow anesthetic (thiopental) and the risk of an administration error caused by non‐
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professional execution personnel that the prisoner will be conscious during the procedure and will experience conscious paralysis, suffocation, and the effects of the injection of the third chemical state they are using, concentrated potassium chloride.
36. If the sodium pentothal and potassium chloride are given in doses sufficient to cause death, there would be no rational or medically justifiable place for pancuronium bromide in a lethal injection protocol. Because it simultaneously suffocates a sentient being and prevents the sentient being from communicating the suffering to anyone else, the use of pancuronium bromide violates professional, legal, and ethical norms for the euthanasia of animals.
37. Missouri’s legal regulation of veterinarians, 2 CSR 30‐ 9.020(F)(5), provides: “All euthanasia of animals shall be accomplished by a method approved by the 2000 edition, or later revisions, of the American Veterinary Medical Association’s Panel on Euthanasia, as incorporated by reference in this rule.” The “American Veterinary Medical Association” is often referred to by the abbreviation “AVMA”.
38. The AVMA periodically convenes a panel of veterinary experts to review, refine, and update a set of recommendations about the conduct of euthanasia. The purpose of this periodic review is to ensure, as much as
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is reasonably possible, that the recommendations of the AVMA regarding euthanasia have taken into account advances and developments in the veterinary field and in the sub‐field of veterinary euthanasia. The most recent panel released the report entitled “2000 Report of the AVMA Panel on Euthanasia”; a copy of this report is available under the internet address: http://www.avma.org/resources/euthanasia.pdf.
39. The “2000 Report of the AVMA Panel on Euthanasia” discusses the use of barbiturates and neuromuscular blockers in euthanasia. At the bottom of page 680 a separate paragraph emphasizes that “a combination of pentobarbital with a neuromuscular blocker is not an acceptable euthanasia agent.” While this statement refers specifically to pentobarbital it is clearly intended to be generalized to all barbiturates, because earlier on this pagethere is a discussion of the use of “all barbituric acid derivatives”. Consistent with the veterinary practice set forth at the top of page 680 the AVMA recommends the use of pentobarbital (not thiopental) on animals in part because it is long‐acting (in contrast to the ultra‐short acting thiopental which the defendants use on condemned prisoners). Indeed, the use of thiopental in combination with a neuromuscular blocker would certainly be considered by the AVMA to be even more unacceptable than the use of pentobarbital with a neuromuscular blocker, because of the increased
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chance (compared with pentobarbital) that the animal would regain consciousness.
40. The selection of chemicals to which the Johnston defendants admit fails to comply with the professional and legally‐recognized standards for euthanizing animals which the AVMA Panel Report on Euthanasia promulgates. These veterinary norms reflect the high level of attention that is directed towards preventing and eliminating the possibility of conscious suffocation due to chemical paralysis.
41. Defendants’ choice to use the combination of a barbiturate with a neuromuscular blocker is completely unnecessary to bring about the statutory object of causing the death of the prisoner. It compounds the risk of causing gratuitous pain which results from the defendants’ use of an ultra‐short acting barbiturate in the first place, their declining to reveal the quantity to be used, the likelihood of administration errors caused by their use of executioners whose ability to monitor anesthetic depth is unknown, the needless use of pancuronium bromide (compounded by the use of the painful agent potassium chloride, the next chemical to be discussed), and the failure to verify anesthetic depth before intravenously administering the concentrated potassium chloride.
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42. If administered alone, a lethal dose of pancuronium bromide would not immediately cause a human being to lose consciousness. It would totally immobilize him by paralyzing all voluntary muscles and the diaphragm, causing him to suffocate to death while experiencing an intense, conscious desire to inhale. Ultimately the condemned inmate would lose consciousness, but it would not be as an immediate and direct result of the pancuronium bromide. Rather, the loss of consciousness would be due to suffocation, and would be preceded by the torment and agony caused by suffocation.
C. Potassium Chloride 43. Potassium chloride (KCl) is a common salt composed of
potassium and chlorine. Potassium is vital in the human body, and oral potassium chloride is the common means to replenish it, although it can also be administered intravenously if highly diluted. Medically it is used in the treatment of hypokalemia (low concentration of potassium in the blood). When administered rapidly by intravenous route, potassium chloride travels via the venous system to the heart and interferes with the normal electrical activity of the heart, causing the heart to stop pumping blood (“cardiac arrest”) and death.
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44. The intravenous administration of concentrated potassium chloride is extremely painful. In clinical settings, potassium chloride is used in much lower concentrations in part so as to avoid this excruciating pain. Veins are richly supplied with sensory nerve endings that can signal extremely high levels of pain. Concentrated potassium strongly activates these fibers, and causes an excruciating searing or burning sensation that is likened to that of boiling oil or branding with a red hot iron.
45. There are many possible alternative drugs or chemical agents that are equally effective in causing and maintaining cardiac arrest but that do not cause pain. Such non‐painful drugs are used by veterinarians to produce and maintain cardiac arrest during euthanasia of animals.
46. The inclusion of potassium chloride by the Johnston defendants’ admission compounds the risk presented by the needless selection of an ultrashort‐acting barbiturate, the defendants’ declining to reveal the doses of drugs to be used, the likelihood of administration errors caused by executioners whose credentials or lack thereof the Johnson defendants have not revealed, and the needless use of pancuronium, that the prisoner will be conscious during the procedure and will experience the excruciating torments of conscious paralysis and intravenous concentrated potassium.
‐ 14 ‐

47. Page 680 of the AVMA report states that “although unacceptable and condemned when used in unanaesthetized animals, the use of a supersaturated solution of potassium chloride injected intravenously or intracardially is an acceptable method to produce cardiac arrest and death.” This statement firmly establishes the utter unacceptability of administering potassium chloride to an animal that is not anesthetized.
48. On page 681 the AVMA report goes on to state that “[i]t is of utmost importance that personnel performing this technique are trained and knowledgeable in anesthetic techniques, and are competent in assessing anesthetic depth appropriate for administration of potassium chloride intravenously.” The Johnston defendants have declined to provide any information about presence or absence of training, competency, or proficiency of the executioners in the assessment of anesthetic depth. The Johnston defendants have placed in doubt the proposition that anyone involved in conceiving or reviewing the entire lethal injection rite in Missouri has the requisite training in anesthetic techniques to assess anesthetic depth as required by the AVMA prior to the administration of potassium on an animal.
‐ 15 ‐

49. On page 681 the AVMA report also states that “administration of potassium chloride intravenously requires animals to be in a surgical plane of anesthesia characterized by a loss of consciousness, loss of reflex muscle response, and loss of response to noxious stimuli.” The information the Johnston defendants have chosen to provide in response to discovery does not indicate the existence of attempts to conduct any such testing, let alone the presence among the executioners of persons qualified to do so.
50. The use of pancuronium greatly increases the difficulty of making the assessment of anesthetic depth as described and required by the AVMA report. For example, a common way in which veterinarians assess anesthetic depth is to use a surgical clamp to pinch the tail or paw. If the animal is not adequately anesthetized it will withdraw the pinched appendage, and may possible exhibit generalized escape or withdrawal responses, and may even vocalize. By contrast, if an animal is adequately anesthetized it will not exhibit any of these responses. Of course, if the animal has been administered a neuromuscular blocker such as pancuronium, this pinch test cannot be used, because the animal will not be able to exhibit such reflexive withdrawal responses because it is paralyzed. If the animal is not properly anesthetized it will feel the extreme pain caused by the clamping of its tail or paw, but will be unable
‐ 16 ‐

to withdraw, struggle, or vocalize because of the entombing effect of pancuronium. If the veterinarian is not closely monitoring subtle indicators of anesthetic depth such as pupil size, heart rate, and blood pressure, they would have no knowledge that the animal is in fact feeling the pain but unable to respond.
51. Although the Johnston defendants do not claim that there is any attempt to assess or verify anesthetic depth prior to the administration of potassium chloride, any hypothetical attempt to assess anesthetic depth would be made much more challenging and subject to error by their needless administration of pancuronium. Further, such hypothetical attempts to ascertain anesthetic depth prior to the administration of potassium would be thwarted if monitoring equipment such as an EKG and blood pressure cuff is not present, in use, and under the supervision of an individual who is trained to use them to assess anesthetic depth.
52. The failure of the defendants/respondents to comply with the AVMA Panel Report on Euthanasia by specifying the assessment and verification of anesthetic depth prior to the administration of potassium chloride compounds the risk presented by the relatively low dose of thiopental, and compounds the risk presented by the use of an ultra‐short acting barbiturate, and compounds the risk of an administration error
‐ 17 ‐

caused by inadequately proficient execution personnel, and compounds the risk engendered by the needless use of pancuronium, and compounds with the use of the painful agent potassium chloride, that the inmate will be conscious during the procedure and will experience the excruciating torments of conscious paralysis and intravenous concentrated potassium chloride.
53. If the individuals conducting an execution by lethal injection do not properly mix and inject thiopental (sodium pentothal), in a dose sufficient to cause death or at least the loss of consciousness for the duration of the plaintiff or petitioner’s execution, then it is my opinion to a reasonable degree of medical certainty that the use of pancuronium bromide places the plaintiff or petitioner at undue and unnecessary risk of consciously experiencing paralysis, suffocation, and the excruciating pain of the intravenous injection of the respondent’s high dose of the third chemical, potassium chloride. Based on the information the Johnston defendants have chosen to release, it is my opinion to a reasonable degree of medical certainty that the defendants’ lethal injection practices create a foreseeable risk that the plaintiff/petitioner will not be anesthetized to the point of being unconscious and unaware of the pain for the duration of the execution procedure, when this risk is absolutely unnecessary to the
‐ 18 ‐

statutory purpose of bringing about the death of the plaintiff/petitioner. If the condemned prisoner is not first anesthetized, it is my opinion to a reasonable degree of medical certainty that the pancuronium bromide will paralyze all voluntary muscles and mask external, physical indications of the excruciating pain being experienced by the prisoner during the process of suffocating (caused by the pancuronium bromide) and intravenous potassium administration.
54. Defendants/respondents’ execution protocol requires the presence of media witnesses to the execution, and permits the presence of witnesses chosen by the condemned prisoner and witnesses chosen by the homicide decedent’s surviving family members. The use of pancuronium bromide effectively nullifies the ability of witnesses to discern whether or not the condemned prisoner is experiencing a peaceful death or an agonizing death. Regardless of the experience of the condemned prisoner (i.e. whether he is deeply unconscious or experiencing the excruciation of suffocation, paralysis, and potassium chloride injection) he will appear to witnesses to be serene and peaceful due to the defendants/respondents’ choice to use pancuronium to institute paralysis. It is unconscionable that the lethal injection protocol would specify the use of a superfluous drug that thwarts the ability of the witnesses to ascertain whether or not the
‐ 19 ‐

procedure is humane. If the witness cannot ascertain whether the procedure is humane, then there is no means by which the citizens of Missouri or the Court can know whether or not the procedure is humane.
III. Qualifications and Training of Executioners 55. The information about their lethal injection practices which the Johnston defendants have chosen to reveal do not include procedures designed to ensure the proper preparation of the chemicals used. They have declined to provide any of the facts regarding the credentials, certification, experience, or proficiency of the personnel who are responsible for the mixing of the drugs, or for the drawing up of the drugs into syringes. 56. Preparation of drugs, particularly for intravenous use, is a technical task requiring significant training in pharmaceutical concepts and calculations. It is my opinion based on a reasonable degree of medical certainty, and based on my review of lethal injection procedures in various jurisdictions, that there exist many risks associated with drug preparation which, if not properly accounted for, further elevate the risk that a prisoner will consciously experience excruciating pain during the lethal injection.
‐ 20 ‐

57. The information the Johnston defendants have chosen to make available provides inadequate data regarding the training, credentials, certification, experience, and proficiency of any prison employee or contractor who performs the execution procedure. Their declining to supply such information—let alone the ultimate details of their licensure and work history—raises critical questions about the degree to which the condemned prisoners are at risk of excruciating pain during their executions. It is my opinion based on a reasonable degree of medical certainty that the correct and safe management of intravenous drug and fluid administration requires a significant level of professional acumen, and cannot be adequately performed by personnel lacking the requisite training and experience. If a person had invested the time and other resources into acquiring this proficiency, it would be my experience in the practice of medicine that they would obtain a license and practice in their area of health care rather than being an executioner.
58. The great majority of nurses are not trained in the use of ultra‐ short acting barbiturates; indeed, this class of drugs is essentially only used by nurses who have significant experience in intensive care units and as nurse anesthetists. Very few paramedics or ex‐military corpsmen are trained or experienced in the use of ultra‐short acting barbiturates, such as
‐ 21 ‐

thiopental (sodium pentothal). Based on my medical training and experience, and based upon his research of lethal injection procedures and practices, inadequacies in these areas elevate the risk that the lethal injection procedure will cause the prisoner to suffer excruciating pain during the execution.
‐ 22 ‐

59. 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 based on a reasonable degree of medical certainty that, given the apparent absence of a central role for a properly trained medical or even veterinary professional in the defendants/respondents’ execution procedure in Missouri, it can and should be presumed that the lethal injection procedure which the defendants/respondents use creates foreseeable risks of inflicting excruciating pain and suffering on the prisoner during the lethal injection procedure when to do so is unnecessary to bring about the death of the prisoner.
Further, the declarant sayeth naught. I declare under penalty of perjury that the foregoing is true and correct. Executed: ___May 9, 2005________________
_____________________________ MARK J.S. HEATH, M.D. Assistant Professor of Clinical
Anesthesiology College of Physicians & Surgeons Columbia University New York, New York 10024 ‐ 23 ‐

Curriculum Vitae

1) Date of preparation: December 19, 2004

2) Name:

Mark J. S. Heath

Birth date: Birthplace: Citizenship:

March 28, 1960 New York, NY United States, United Kingdom

3) Academic Training:

Harvard University

B.A., Biology, 1983

University of North Carolina, Chapel Hill

M.D., 1987

Medical License

New York: 177101-1

4) Traineeship:

1987 – 1988 Internship, Internal Medicine, George Washington University Hospital, Washington, DC.

1988 – 1991 Residency, Anesthesiology, Columbia College of Physicians and Surgeons, New York, NY

1991 – 1993 Fellowship, Anesthesiology, Columbia College of Physicians and Surgeons, New York, NY

5) Board Qualification:

Diplomate, American Board of Anesthesiology, October 1991. Testamur, Examination of Special Competence in Perioperative
Transesophageal Echocardiography (PTEeXAM), 2001.

6) Military Service:

None

7) Professional Organizations:

American Society of Anesthesiologists International Anesthesia Research Society Society of Cardiovascular Anesthesiology

8) Academic Appointments:

1993 – 2002

Assistant Professor of Anesthesiology, Columbia University, New York, NY

2002 - present

Assistant Professor of Clinical Anesthesiology, Columbia University, New York, NY

Taylor v. Crawford Exhibit 1, "Heath Exhibit 1"

9) Hospital/Clinical Appointments:

1993 – present

Assistant Attending Anesthesiologist, Presbyterian Hospital, New York, NY.

10) Honors:

Magna cum laude, Harvard University Alpha Omega Alpha, University of North Carolina at Chapel Hill First Prize, New York State Society of Anesthesiologists Resident Presentations, 1991

11) Fellowship and Grant Support:

Foundation for Anesthesia Education and Research, Research Starter Grant Award, Principal Investigator, funding 7/92 - 7/93, $15,000.

Foundation for Anesthesia Education and Research Young Investigator Award, Principal Investigator, funding 7/93 - 7/96, $70,000.

NIH KO8 "Inducible knockout of the NK1 receptor" Principal Investigator, KO8 funding 12/98 - 11/02, $431,947 over three years (no-cost extension to continue through 11/30/2002)

NIH RO1 "Tachykinin regulation of anxiety and stress responses" Principal Investigator, funding 9/1/2002 – 8/30/2007 $1,287,000 over 5 years

12) Departmental and University Committees:
Research Allocation Panel (1996 – 2001) Institutional Review Board (Alternate Boards 1-2, full member Board 3) (2003 - present)
13) Teaching:
Lecturer and clinical teacher: Anesthesiology Residency Program, Columbia University and Presbyterian Hospital, New York, NY
Advanced Cardiac Life Support Training
Anesthetic considerations of LVAD implantation. Recurrent lecture at Columbia University LVAD implantation course.

Invited Lecturer:
NK1 receptor functions in pain and neural development, Cornell University December 1994

Anxiety, stress, and the NK1 receptor, University of Chicago, Department of Anesthesia and Critical Care, July 2000
Anesthetic Considerations of LVAD Implantation, University of Chicago, Department of Anesthesia and Critical Care, July 2000
NK1 receptor function in stress and anxiety, St. John’s University Department of Medicinal Chemistry, March 2002
Making a brave mouse (and making a mouse brave), Mt.Sinai School of Medicine, May 2002
Problems with anesthesia during lethal injection procedures, Geneva, Switzerland. Duke University School of Law Conference, “International Law, Human Rights, and the Death Penalty: Towards an International Understanding of the Fundamental Principles of Just Punishment”, July 2002.
NK1 receptor function in stress and anxiety, Visiting Professor, NYU School of Medicine, New York, New York. October 2002.
Anesthetic Depth, Paralysis, and other medical problems with lethal injecton protocols: evidence and concerns, Federal Capital Habeas Unit Annual Conference, Jacksonville, Florida. May 2004.
Medical Scrutinyof Lethal Injection Procedures. National Association for the Advancement of Colored People Capital Defender Conference, Airlie Conference Center, Warrenton, Virginia. July 2004.
Anesthetic considerations of LVAD implantation. Recurrent lecture at Columbia University LVAD implantation course.
14) Grant Review Committees: None

15) Publications:
Original peer reviewed articles
* Santarelli, L., Gobbi, G., Debs, P.C., Sibille, E. L., Blier, P., Hen, R., Heath, M.J.S. (2001).
Genetic and pharmacological disruption of neurokinin 1 receptor function decreases anxietyrelated behaviors and increases serotonergic function. Proc. Nat. Acad. Sci., 98(4), 1912 – 1917.
* King, T.E. δ, Heath M. J. Sδ., Debs, P, Davis, MB, Hen, R, Barr, G. (2000). The development of nociceptive responses in neurokinin-1 receptor knockout mice. Neuroreport.;11(3), 587-91 δ authors contributed equally to this work
* Heath, M. J. S., Lints, T., Lee, C. J., Dodd, J. (1995). Functional expression of the tachykinin NK1 receptor by floor plate cells in the embryonic rat spinal cord and brainstem. Journal of Physiology 486.1, 139 -148.
* Heath, M. J. S., Womack M. D., MacDermott, A. B. (1994). Subsance P elevates intracellular calcium in both neurons and glial cells from the dorsal horn of the spinal cord. Journal of Neurophysiology 72(3), 1192 - 1197.
McGehee, D. S., Heath, M. J. S., Gelber, S., DeVay, P., Role, L.W. (1995) Nicotine enhancement of fast excitatory synaptic transmission in the CNS by presynaptic receptors. Science 269, 1692 - 1696.
Morales D, Madigan J, Cullinane S, Chen J, Heath, M. J. S., Oz M, Oliver JA, Landry DW. (1999). Reversal by vasopressin of intractable hypotension in the late phase of hemorrhagic shock. Circulation. Jul 20;100(3):226-9.
LoTurco, J. J., Owens, D. F., Heath, M. J. S., Davis, M. B. E., Krigstein, A. R. (1995). GABA and glutamate depolarize cortical progenitor cells and inhibit DNA synthesis. Neuron 15, 1287 1298.
Kyrozis A., Goldstein P. A., Heath, M. J. S., MacDermott, A. B. (1995). Calcium entry through a subpopulation of AMPA receptors desensitized neighboring NMDA receptors in rat dorsal horn neurons. Journal of Physiology 485.2, 373 - 381.
McGehee, D.S., Aldersberg, M. , Liu, K.-P., Hsuing, S., Heath, M.J.S. , Tamir, H. (1997). Mechanism of extracellular Ca2+-receptor stimulated hormone release from sheep thyroid parafolicular cells. Journal of Physiology: 502,1, 31 - 44.
Kao, J., Houck, K., Fan, Y., Haehnel, I., Ligutti, S. K., Kayton, M. L., Grikscheit, T., Chabot, J., Nowygrod, R., Greenberg, S., Kuang, W.J., Leung, D. W., Hayward, J. R., Kisiel, W., Heath, M. J. S., Brett, J., Stern, D. (1994). Characterization of a novel tumor-derived cytokine. Journal of Biological Chemistry 269, 25106 - 25119.
Dodd, J., Jahr, C.E., Hamilton, P.N., Heath, M.J.S., Matthew, W.D., Jessell, T.M. (1983). Cytochemical and physiological properties of sensory and dorsal horn neurons that transmit cutaneous sensation. Cold Spring Harbor Symposia of Quantitative Biology 48, 685 -695.

Pinsky, D.J., Naka, Y., Liao, H., Oz, M. O., Wagner, D. D., Mayadas, T. N., Johnson, R. C., Hynes, R. O., Heath, M.J.S., Lawson, C.A., Stern, D.M. Hypoxia-induced exocytosis of endothelial cell Weibel-Palade bodies. Journal of Clinical Investigation 97(2), 493 - 500.

Case reports

none

Review, chapters, editorials

*

Heath, M. J. S., Dickstein, M. L. (2000). Perioperative management of the left

ventricular assist device recipient. Prog Cardiovasc Dis.;43(1):47-54.

*

Dickstein, M.L., Mets B, Heath M.J.S. (2000). Anesthetic considerations during left

ventricular assist device implantation. Cardiac Assist Devices pp 63 – 74.

*

Heath, M. J. S. and Hen, R. (1995). Genetic insights into serotonin function. Current

Biology 5.9, 997 -999.

*

Heath, M.J.S., Mathews D. (1990). Care of the Organ Donor. Anesthesiology Report

3, 344-348.

*

Heath, M. J. S., Basic physiology and pharmacology of the central synapse. (1998)

Anesthesiology Clinics of North America 15(3), 473 - 485.

Abstracts
Heath, M.J.S., Davis, M., Santarelli L., Hen H. (2002). Gene targeting of the NK1 receptor blocks stress-evoked induction of c-Fos in the murine locus coeruleus. IARS American-Japan Congress A-15.
Heath, M.J.S., Davis, M., Santarelli L., Hen H. (2002). Gene targeting of the NK1 receptor blocks stress-evoked induction of c-Fos in the murine locus coeruleus. Anesthesiology 95:A-811.
Heath, M.J.S., Davis, M., Santarelli L., Hen H. (2002). Expression of Substance P and NK1
Receptor in the Murine Locus Coeruleus and Dorsal Raphe Nucleus. Anesthesia and Analgesia 93; S-212
Heath, M.J.S., Davis, M., Santarelli L., Hen H. (2002). Expression of Substance P and NK1 Receptor in the Murine Locus Coeruleus and Dorsal Raphe Nucleus. Anesthesia and Analgesia 93; S-212.
Heath, M.J.S., Santarelli L, Hen H. (2001) The NK1 receptor is necessary for the stress-evoked expression of c-Fos in the paraventricular nucleus of the hypothalamus. Anesthesia and Analgesia 92; S233.
Heath, M.J.S., Santarelli L, Debs P, Hen H. (2000). Reduced anxiety and stress responses in mice lacking the NK1 receptor. Anesthesiology 93: 3A A-755.

Heath, M.J.S., King, T., Debs, P.C., Davis M., Hen R., Barr G. (2000). NK1 receptor gene disruption alters the development of nociception. Anesthesia and Analgesia; 90; S315.
Heath, M.J.S., Lee, J.H., Debs, P.C., Davis, M. (1997). Delineation of spinal cord glial subpopulations expressing the NK1 receptor. Anesthesiology; 87; 3A; A639.
Heath, M.J.S., MacDermott A.B. (1992). Substance P elevates intracellular calcium in dorsal horn cells with neuronal and glial properties. Society for Neuroscience Abstracts; 18; 123.1.
Heath, M.J.S., Lee C.J., Dodd J. (1994). Ontogeny of NK1 receptor-like immunoreactivity in the rat spinal cord. Society for Neuroscience Abstracts; 20; 115.16.
Heath, M.J.S., Berman M.F. (1991) Isoflurane modulation of calcium channel currents in spinal cord dorsal horn neurons. Anesthesiology 75; 3A; A1037.

DECLARATION OF DR. DAVID A. LUBARSKY COMES NOW the declarant, David A. Lubarky, M.B.A., M.D., and as authorized by 28 U.S.C. § 1746, states and declares under penalty of perjury all as follows: 1. My name is David A. Lubarsky. 2. I live in Miami, Florida. 3. I graduated from Washington University with a B.A. in 1980 and an M.D. in 1984. 4. I also hold an M.B.A. from Duke University (1999). 5. I am licensed to practice medicine in the States of New York (1985), North Carolina (1988) and Florida (2002). I moved from North Carolina to Florida, and while applying for a full license, in 2001 and early 2002, held a Florida Board of Medicine Medical Faculty Certificate. 6. I am board‐certified by the National Board of Medical Examiners, the American Board of Anesthesiology (placing in the 99th percentile on Part I of its examination), recently completed the American Board of Anesthesiology Maintenance of Certification Exam (2004) and am certified by the American Academy of Pain Management. 7. I serve as the Emanuel M. Papper Professor and Chairman, Department of Anesthesiology, University of Miami School of Medicine,
Taylor v. Crawford Exhibit 2

with a secondary academic appointment as Professor, Department of Management, University of Miami School of Business.
8. I have published, as author or co‐author, 127 books, chapters, monographs, journal articles, and other publications or abstracts, primarily in the area of anesthesiology. I have also made video presentations and other private‐sector publications, contributed to conference proceedings and newsletters, and created electronic, World Wide Web, and/or Internet publications related to my work.
9. I have lectured, appeared on panels, and served as a visiting professor throughout the United States and in, Paris, Hong Kong, and Japan.
10.I have been retained as an expert witness in approximately 50 malpractice cases and given about 20 depositions.
11.My credentials are set forth in greater detail in the curriculum vitae, a true and correct copy of which is attached hereto, incorporated herein, and marked as Lubarsky Exhibit 1.
12.Together with Leonidas Koniaris, M.D., Teresa A. Zimmers, Ph.D., and Jonathan P. Sheldon, J.D., I conducted the research and reported the findings contained in “Inadequate anesthesia in lethal injection for execution” in THE LANCET, volume 365, pages 1412‐14, published on April
‐ 2 ‐

16, 2005, a true and correct copy of which is attached hereto, incorporated herein, and marked as Lubarsky Exhibit 2.
13.THE LANCET is one of the most prestigious medical journals in the world. All publications go through a rigorous process of review for both pertinence and scientific method. Usually at least two reviewers eminent in the field being investigated provide input to an editor in charge of the section in which the paper will be published. Among the methods evaluated are how data were collected, and statistical analysis of that data. Furthermore, conclusions are carefully monitored for faithfulness to the data described in the paper.
14.Our research dealt with the process of injecting a person sentenced to death with a succession of three chemicals: thiopental (also known as sodium pentothal), pancuronium bromide, and potassium chloride, and raised the question whether the levels of thiopental in the bloodstream of the person being executed were high enough to produce unconsciousness throughout the execution and whether the protocols provided by Texas and Virginia would absolutely produce a foolproof method of humane execution.
15.Each of the propositions of fact set forth in the LANCET article as aforesaid reflects my opinion to a reasonable degree of scientific certainty.
‐ 3 ‐

16.Based on our research, the article concludes that toxicology reports from the four lethal‐injection jurisdictions which provided them showed that post‐mortem concentrations of thiopental (sodium pentothal) in the blood of persons who had been executed were lower than that required for surgery in 43 of 49 cases reported (88%), and 21 (43%) inmates had concentrations consistent with awareness. This conclusion reflects my opinion to a reasonable degree of scientific certainty.
17.My LANCET co‐authors and I have reviewed the discovery responses which the Missouri defendants have thus far provided in Timothy Johnston v. Gary B. Kempker, et al., 4:04‐CV‐1075‐DJS (U.S. Dist. Ct. E.D. Mo.), as forwarded to us by counsel for Vernon Brown.
18.On the basis of the data which these representatives of the State of Missouri have provided, and from the fact that according to these data, the procedure in Missouri is not substantially dissimilar to the procedure in the states which kept and provided toxicology data, I draw the inference, to a reasonable degree of scientific certainty, that the levels of thiopental (sodium pentothal) in the bloodstreams of persons executed by lethal injection in Missouri are, at best, similar to those levels executed in the four states which kept and provided toxicology data.
‐ 4 ‐

19.In order for us to reject the inference that because the basic procedure in Missouri is the same as in the states for which we have toxicology data, the results are the same in Missouri as in those states, representatives of the State of Missouri would have to provide the following data:
a. Documented blood levels of thiopental, showing adequate anesthesia at the time of death, of each person executed;
b. Documented post‐mortem blood levels showing adequate levels of anesthesia post‐mortem of each person executed,
c. The time from administration of each of the three chemicals to the time of death of each person executed;
d. The quantity of each of the three chemicals administered to each person executed;
e. The protocol of execution; f. The training of each individual performing each
execution;
‐ 5 ‐

20.In order to render a prospective evaluation about an execution that the State of Missouri intends to carry out in the future, based on its having carried them out in the past, my co‐authors and I would need the following information:
a. Any and all post‐mortem reports on the persons executed by lethal injection in Missouri, including autopsy reports, Medical Examiner investigative reports, all post‐mortem toxicology including blood, vitreous and other fluids, exact identification of all blood sampling sites, and the timing of all samples drawn, and the timing of all tests run, and the method of storage of samples between sampling and testing. Toxicology reports alone are often incomplete, lacking sample collection time, site of collection, so reviewing the complete autopsy and toxicology original study is necessary.
b. In order to rule out the foreseeable risk of the gratuitous infliction of pain in a future lethal injection, we would need to have access to the standard operating procedures ‐ 6 ‐

for the autopsy procedures themselves. As North Carolina performed toxicology analysis without a full autopsy, we would specifically need the results from all post‐mortem investigative procedures, not only autopsies. To the extent these procedures fell short of professional norms for a full autopsy, they may be inadequate to rule out the foreseeable risk of the gratuitous infliction of pain. c. We would need the most complete available description of the protocol itself, including identity and training of executioners, number of intravenous (IV) lines, preparation of the drugs, the dosages, the order of administration, rate of administration, backup plan, etc. Is there monitoring for depth of anesthesia? Are heart rate monitors are used strictly to determine death? d. In order to render certain other data reliable, we would need to know the protocol for determining death. In North Carolina, staff claim to watch the monitor flat‐line
‐ 7 ‐

for five minutes, and then call a doctor in to pronounce death, but there is reason to think this is not always the procedure. Any fact tending to draw in question the timing of death would undermine our confidence that the anesthesia level at the time of death was adequate to produce unconsciousness. e. Time from injection of first drug to declaration of death. We generally have to rely on published eyewitness accounts or press releases from the various jurisdictions for this information. 21.In addition to needing the foregoing data about all past Missouri executions by lethal injection, we would need to know the plans of the executions in the future execution concerning which our opinion is sought, for example: • identity and training of executioners • number of intravenous (IV) lines • preparation of the chemicals • dosages of the chemicals
‐ 8 ‐

• the order of administration • rate of administration • backup plan • plan, or lack of plan, for monitoring for depth of
anesthesia • any other fact on which the State relies in contending that
its plans for carrying out the lethal injection in question does not create the foreseeable risk of gratuitous pain. 22. Each and every one of the foregoing expressions of need for certain data in order to rule out the foreseeable risk of gratuitous pain in a Missouri execution by lethal injection is set forth to a reasonable degree of scientific certainty.
‐ 9 ‐

23. In the absence of all of the foregoing information, I am left with

the conclusion to a reasonable degree of scientific certainty that the

infliction of death by lethal injection on Vernon Brown on May 18,2005, by

officials, officers, and employees of the State of Missouri would create the

foreseeable risk of gratuitous pain for the reasons set forth in "Inadequate

anesthesia in lethal injection for execution" in THE LANCET,as aforesaid.

Further, the declarant saith naught.

I declare under penalty of pejury that the foregoing is true and

-<,/p correct.

Executed:

.s/

Department of ~ n e s t h e s i o l o ~ ~ School of Medicine University of Miami P.O. Box 016370 Miami, Florida 33101

Appendix Page 1 David Alan Lubarsky, M.D. Curriculum Vitae
UNIVERSITY OF MIAMI CURRICULUM VITAE

Date:

February 2005

PERSONAL

Name:

David Alan Lubarsky, M.D., M.B.A.

Office phone: Office address:

(305) 585-7037
Jackson Health System 1611 NW 12th Avenue, C301
Miami, Florida 33136

Date of birth: Place of birth:

August 2, 1959 New York, NY

Present academic rank and title:

Primary academic appointment:

Emanuel M. Papper Professor and Chairman Department of Anesthesiology Professor of Anesthesiology, with tenure University of Miami School of Medicine

Secondary academic appointment:

Professor Department of Management University of Miami School of Business

Citizenship:

U.S.A.

HIGHER EDUCATION

Washington University, St. Louis, MO, May, 1980, B.A. Washington University School of Medicine, St. Louis, MO, May, 1984, M.D. Fuqua School of Business, Duke University, Durham, NC, August, 1999, M.B.A.

Medical licensure:

November, 2002 – Florida State License #ME86449 December, 2001-Florida Board of Medicine Medical Faculty Certificate-Number: 1457 July, 1988–North Carolina State License #32774 July, 1985–New York State License #162663-1

Certification:

National Board of Medical Examiners–July, 1985 Part I American Board of Anesthesiology (99th%) –July, 1987
Part II Board Certification–October, 1988
American Academy of Pain Management–1991

Taylor v. Crawford Exhibit 2, "Lubarsky Exhibit 1"

Appendix Page 2 David Alan Lubarsky, M.D. Curriculum Vitae
Previous Academic Appointments
Professor (with tenure) and Vice-Chairman, Chief Division of General, Vascular and Transplant Anesthesia and Surgical Intensive Care Department of Anesthesiology, Duke University Medical Center July 1988 – November 2001
Adjunct Professor, Fuqua School of Business, Duke University 6/2000-6/2002
Academic training:
Weekend Executive Masters in Business Administration (WEMBA) Program The Fuqua School of Business Duke University January 1998 – August 1999 Honored as Fuqua Scholar (top of class)
Fellowship in Transesophageal Echocardiography Duke University Medical Center Fiona M. Clements, M.D., Chief, Division of Cardiac Anesthesiology Joseph A. Kisslo, M.D., Director, Echocardiography Lab October 1992–December 1992
Fellowship in Cardiac and Vascular Anesthesia and Clinical Research New York University Medical Center Stephen Thomas, M.D., Division Head July 1987–June 1988
Residency Department of Anesthesiology New York University Medical Center Herman Turndorf, M.D., Professor and Chairman July 1985–June 1987
Internship Department of Medicine Westchester County Medical Center Richard Levere, M.D., Chairman July 1984–June 1985
PUBLICATIONS
Books published:
1. Robertson KM, Lubarsky DA: Preparing for the Written Boards: Pearls of Wisdom. Boston Medical Publishing, June 2001.

Appendix Page 3 David Alan Lubarsky, M.D. Curriculum Vitae
2. Gallagher CJ, Hill SE, Lubarsky DA: Board Stiff Too: Preparing for the Anesthesia Orals. Boston, Butterworth-Heinemann, 2000.
3. Lubarsky DA: The Answer Key to the Written Boards. Durham, NC, A+ Homeprep, 1992, 2nd edition 1993, 3rd edition 1994, 4th edition 1995.
4. Gallagher CJ, Lubarsky DA: Preparing for the Anesthesia Orals: Board Stiff. Boston, Butterworths, 1990.
Book chapters and monographs published:
1. Ellis J, Roizen M, Mantha S, Schwartze G, McKinsey J, Lubarsky D, Kenaan C: Anesthesia for Vascular Surgery. Clinical Anesthesia 5th Edition, Lippincott Williams & Wilkins Publishing, 2005 (in press)
2. J.G Reves, Peter S.A. Glass, David A. Lubarsky, Matthew D. McEvoy: Intravenous Nonopioid Anesthestics. Miller’s Anesthesia 6th Edition, Elsevier Publishing, 2004 chapter 10.
3. Lubarsky DA and Locke J, Ambulatory Anesthesia Billing, Ambulatory Anesthesia 2005 (in press)
4. Gayer S and Lubarsky DA: Cost-effective Anti-emesis. In International Anesthesiology Clinics: Post-operative nausea and Vomiting 2003 Vol 41(4):145-164.
5. Knudsen NW, Sebastian MW, Lubarsky DA: Cost containment in vascular surgery. Seminars in Cardiothoracic and Vascular Anesthesia 2000 (November) Vol 4(4):256-264.
6. Rock P, Lubarsky DA: The business of perioperative medicine. Anesthesiology Clinics of North America 18(3):677-698, 2000.
7. Reves JG, Glass PSA, Lubarsky DA: Nonbarbiturate intravenous anesthetics, Anesthesia, fifth edition. Edited by Miller RD. New York, Churchill Livingstone, pp 228–272, 2000.
8. Dear GdeL, Panten RR, Lubarsky DA: Operating room information systems, Seminars in Anesthesia, Perioperative Medicine and Pain. Edited by Katz RL and Ward DS. Vol 18, No 4 (December), pp 322-333, 1999.
9. Lubarsky DA: How to write clinical guidelines for value-based anesthesia care, Anesthesia Practice Management: How to Assess and Promote Value. Monograph of the Ad Hoc Committee on Value-Based Anesthesia Care. Copyright American Society of Anesthesiologists, 1999.
10. Tardiff BE, Jollis JG, Lubarsky DA: Use of information systems and large databases in cardiovascular medicine, Outcome Measurements in Cardiovascular Medicine. Edited by Tuman KJ. Lippincott Williams & Wilkins, pp 67–80, 1999.
11. Lineberger CK, Lubarsky DA: Anesthesia for carotid endarterectomy. Curr Opin Anaesthesiol 11:479–484, 1998.

Appendix Page 4 David Alan Lubarsky, M.D. Curriculum Vitae
12. Panten RR, Dear GdeL, Lubarsky DA: Pharmacoeconomics and practice guidelines: Moving toward value-based care, Problems in Anesthesia, Vol. 10, No. 3. Edited by Arens JF, Prough DS. Baltimore, Williams & Wilkins, pp 285–291, 1998.
13. Inge WW, Grichnik KP, Lineberger CK, Lubarsky DA: Vascular surgery in the geriatric patient, Geriatric Anesthesiology. Edited by McLeskey CH. Baltimore, Williams & Wilkins, pp 637–644, 1997.
14. Lubarsky DA, Moskop RJ: The “niche” of etomidate in current anesthetic practice, Progress in Anesthesia. Edited by Eisenkraft JB. Philadelphia, WB Saunders, pp 155–168, 1994.
15. Reves JG, Glass PSA, Lubarsky DA: Nonbarbiturate intravenous anesthetics, Anesthesia, Fourth edition. Edited by Miller RD. New York, Churchill Livingstone, pp 247–289, 1994.
16. Gallagher C, Sladen RN, Lubarsky DA: Thoracotomy: postoperative complications, Problems in Anesthesia: Thoracic Anesthesia, Vol. 4, No. 2, June 1990. Edited by Brodsky JB. Philadelphia, JP Lippincott, pp 393-415, 1990.
17. Lubarsky DA, Rodman R: Carotid endarterectomy: General versus regional anesthesia, Problems in Anesthesia: Cardiovascular Anesthesia, Vol. 1, No. 3, July–September 1987. Edited by Thomas SJ. Philadelphia, JP Lippincott, pp 496-510, 1987.
Journals:
1. Candiotti KA, Birnbach DJ, Lubarsky DA, Nhuch F, Kamat A, Koch WH, Nikoloff M, Wu L, Andrews D; The Impact of Pharmacogenomics on Postoperative Nausea and Vomiting. Anesthesiology 2005 102;543-549.
2. Dexter F, Lubarsky D: Financial Implications of a Hospital’s Specialization in Rare Physiologically Complex Surgical Procedures. Anesthesiology 2005 (in publication)
3. Lubarsky D: Incentivize Everything, Incentivize Nothing. Anesth Analg 2005;100:490-2.
4. Macario A, Dexter F, Lubarsky D: Meta- Analysis of Trials Comparing Postoperative Recovery After Anesthesia with Sevoflurane or Desflurane. Am J Health-Syst Pharm 62:63-68, 2005.
5. Dexter F., Lubarsky, D: Using Length of Stay Data from a Hospital to Evaluate Whether Limiting Elective Surgery at the Hospital is an Inappropriate Decision. J Clin Anesth 2004 16:421-425.
6. Dexter F, Abouleish A, Whitten C, Lubarsky D, Epstein R: Impact of Reducing Turnover times on Staffing Costs. Anesth Analg 2004 98:872.
7. Gan TJ, Lubarsky DA, Flood EM, Thanh T, Masukopf J, Mayne T, Chen C: Patient preferences for acute pain treatment. Br. J. Anaesth 2004 92:681-688.
8. Olson, Ronald P., Schow, Adam J., McCann, Richard, Lubarsky, David A., Gan, Tong J: Absence of adverse outcomes in hyperkalemic patients undergoing vascular access surgery: [Absence de complications chez des patients hyperkaliemiques devant subir une intervention chirurgicale d’acces vasculaire]. Can J Anesth 2003 50:553-557.

Appendix Page 5 David Alan Lubarsky, M.D. Curriculum Vitae
9. Abouleish AE, Epstein RH, Lubarsky DA, Dexter F: Use of operating room information system data to predict the impact of reducing turnover times on staffing costs. Anesth Analg 2003 97:1119 – 1126.
10. Gan TJ, Ing RJ, Dear G, Wright D, El-Moalem HE, Lubarsky DA: How much are patients willing to pay to avoid intraoperative awareness? J Clin Anesth 15:108 – 112, 2003
11. Dexter F, Macario A, Traub RD, Lubarsky DA: Operating room utilization alone is not an accurate metric for the allocation of operating room block time to individual surgeons with low caseloads. Anesthesiology, May 2003 98:5.
12. Abouleish AE, Dexter F, Epstein RH, Lubarsky DA, Whitten CW, Prough DS: Labor costs incurred by anesthesiology groups due to operating rooms not being allocated and cases not being scheduled to maximize operating room efficiency. Anesth Analg 2003:96:1109 – 1113.
13. Schow AJ, Lubarsky DA, Gan TJ: Can succinylcholine be safely used in hyperkalemic patients? Anesth Analg 2002 95:119-122.
14. Dexter F, Blake JT, Penning DH, Lubarsky DA: Calculating a potential increase in hospital margin for elective surgery by changing operating room time allocations or increasing nursing staffing to permit completion of more cases. Anesth Analg 2002 94:138-142
15. Dexter F, Lubarsky DA, Blake JT: Sampling error can significantly affect measured hospital financial performance of surgeons and resulting operating room time allocations. Anes Analg 95:184-188, 2002.
16. Dexter F, Blake JT, Penning DH, Sloan B, Chung P, Lubarsky DA: Use of linear programming to estimate impact of changes in a hospital’s operating room time allocation on perioperative variable costs. Anesthesiology 2002; 96:718–724.
17. Dexter F, Gan TJ, Naguib M, Lubarsky DA: Cost identification analysis for succinylcholine. Anesth Analg 92:693-699, 2001.
18. Dexter F, Macario A, Lubarsky DA: The impact on revenue of increasing patient volume at surgical suites with relatively high operating room utilization. Anesth Analg 92:1215-1221, 2001.
19. Gan TJ, Sloan F, Dear G, El-Moalem H, Lubarsky DA: How much are patients willing to pay for avoidance of postoperative nausea and vomiting? Anesth Analg 92:393-400, 2001.
20. Bell ED, Penning DH, Cousineau EF, White WD, Hartle AJ, Gilbert WC, Lubarsky DA: How much labor is in a labor epidural? Manpower cost and reimbursement for an obstetric analgesia service in a teaching institution. Anesthesiology 92:851-8, 2000.
21. Hill RP, Lubarsky DA, Phillips-Bute B, Fortney JT, Creed MR, Glass PSA, Gan TJ: Costeffectiveness of prophylactic antiemetic therapy with ondansetron, droperidol, or placebo. Anesthesiology 92:958-67, 2000.
22. Lubarsky DA, Fisher SD, Slaughter TF, Green CL, Lineberger CK, Astles JR, Greenberg CS, Inge III WW, Krucoff MW: Myocardial ischemia correlates with reduced fibrinolytic activity following peripheral vascular surgery. J Clin Anesth 12:136-41, 2000.

Appendix Page 6 David Alan Lubarsky, M.D. Curriculum Vitae
23. Lubarsky DA, Reves JG: Using Medicare multiples results in disproportionate reimbursement for anesthesiologists compared to other physicians. J Clin Anesth 12:238-241, 2000.
24. Dexter F, Macario A, Manberg PJ, Lubarsky DA: Computer simulation to determine how rapid anesthetic recovery protocols to decrease the time for emergence or increase the phase 1 postanesthesia care unit bypass rate affect staffing of an ambulatory surgery center. Anesth Analg 88:1053–1063, 1999.
25. Dexter F, Macario A, Lubarsky DA, Burns DD: Statistical method to evaluate management strategies to decrease variability in operating room utilization: Application of linear statistical modeling and Monte-Carlo simulation to operating room management. Anesthesiology 91:262– 274, 1999.
26. Dexter F, Macario A, Traub RD, Hopwood M, Lubarsky DA: An operating room scheduling strategy to maximize the use of operating room block time: computer simulation of patient scheduling and survey of patients’ preferences for surgical waiting time. Anesth Analg 89:7–20, 1999.
27. Zhou J, Dexter F, Macario A, Lubarsky DA: Relying solely on historical surgical times to estimate accurately future surgical times is unlikely to reduce the average length of time cases finish late. J Clin Anesth 11:601–605, 1999.
28. Dexter F, Lubarsky DA, Gilbert BC, Thompson C: A method to compare costs of drugs and supplies among anesthesia providers: A simple statistical method to reduce variations in cost due to variations in case mix. Anesthesiology 88:1350–1356, 1998.
29. Dexter F, Penning DH, Lubarsky DA, DeLong E, Sanderson I, Gilbert BC, Bell E, Reves JG: Use of an automated anesthesia information system to determine reference limits for vital signs during cesarean section under general or spinal anesthesia: Application to medical malpractice claims. J Clin Monit Comput 14:491–498, 1998.
30. Lineberger CK, Lubarsky DA: Con: General anesthesia and regional anesthesia are equally acceptable choices for carotid endarterectomy. J Cardiothorac Vasc Anesth 12:115–117, 1998.
31. Pisetsky MA, Lubarsky DA, Capehart BP, Lineberger C, Reves JG: Valuing the work performed by anesthesiology residents and the financial impact on teaching hospitals of a reduced anesthesia residency program size. Anesth Analg 87:245–254, 1998 [published erratum appears in Anesth Analg 1998 Nov;87(5):1031].
32. Coleman RL, Sanderson IC, Lubarsky DA: Anesthesia information management systems as a cost containment tool. CRNA 8(2): 77–83, 1997.
33. Lubarsky DA, Glass PSA, Ginsberg B, Dear G de L, Dentz ME, Gan TJ, Sanderson IC, Mythen MG, Dufore S, Pressley CC, Gilbert WC, White WD, Alexander ML, Coleman RL, Rogers MC, Reves JG: The successful implementation of pharmaceutical practice guidelines: Analysis of associated outcomes and cost savings. Anesthesiology 86:1145–1160, 1997.
34. Lubarsky DA, Sanderson IC, Gilbert WC, King KP, Ginsberg B, Dear G de L, Coleman RL, Pafford TD, Reves JG: Using an anesthesia information management system as a cost containment tool: Description and validation. Anesthesiology 86:1161–1169, 1997.

Appendix Page 7 David Alan Lubarsky, M.D. Curriculum Vitae
35. Astles JR, Lubarsky DA, Loun B, Sedor FA, Toffaletti JG: Pneumatic transport exacerbates interference of room air contamination in blood gas samples. Arch Path Lab Med 120(7):642– 647, 1996.
36. Lubarsky DA: Fast track in the post-anesthesia care unit: Unlimited possibilities? J Clin Anes 8:70S–72S, 1996.
37. Dentz ME, Lubarsky DA, Smith LR, McCann RL, Moskop RJ, Inge W, Grichnik KP: A comparison of amrinone with sodium nitroprusside for control of hemodynamics during infrarenal abdominal aortic surgery. J Cardiothorac Vasc Anesth 9:486–490, 1995.
38. Hadzija BW, Lubarsky DA: Compatibility of etomidate, sodium thiopental and propofol injections with other drugs commonly administered during induction of anesthesia. Am J HealthSyst Pharm 52:997–999, 1995.
39. Lubarsky DA, Smith LR, Sladen RN, Mault JR, Reed RL: Defining the relationship of oxygen delivery and consumption: Use of biologic system models. J Surg Res 58:503–508, 1995.
40. Lubarsky DA: Understanding cost analyses: Part 1, A practitioner’s guide to cost behavior. J Clin Anesth 7:519–521, 1995.
41. Astles R, Lubarsky DA, Loun B, Sedor F, Toffaletti J: Pneumatic tube system exacerbates the effect of room air contamination. Clin Chem 41:155, 1995.
42. Lubarsky DA, Hahn C, Bennett DH, Smith LR, Bredehoeft SJ, Klein HG, Reves JG: The hospital cost (fiscal year 1991/1992) of a simple perioperative allogeneic red blood cell transfusion during elective surgery at Duke University. Anesth Analg 79:629–637, 1994.
43. Moskop RJ, Lubarsky DA: Carbon dioxide embolism during a laparoscopic cholecystectomy. South Med J 87:414–415, 1994.
44. Grichnik KP, Dentz M, Lubarsky DA: Hemodynamic collapse during thoracoscopy. J Cardiothorac Vasc Anesth 7:588–589, 1993.
45. Dentz ME, Lubarsky DA: Leontiasis ossea: an unusual presentation of a difficult airway. Anesth Analg 76:678-679, 1993.
46. Lubarsky DA, Griebel JA, Camporesi EC, Piantadosi CA: Comparison of systemic oxygen delivery and uptake with NIR spectroscopy of brain during normovolemic hemodilution in the rabbit. Resuscitation 23:45-57, 1992.
47. Lubarsky DA, Gallagher C, Berend JL: Secondary polycythemia does not increase the risk of perioperative hemorrhagic or thrombotic complications. J Clin Anes 3:99-103, 1991.
48. Lubarsky DA, Kaufman B, Turndorf H: Anesthesia unmasking benign Wolff-Parkinson-WhiteSyndrome. Anesth Analg 68:172-4, 1989.
49. Kronenfeld MA, Lubarsky DA, Feiler M, Galloway A, Thomas SJ: The effect of ventilation on aortic blood gases during left ventricular ejection before separation from cardiopulmonary bypass. J Cardiothorac Anes 3:301-304, 1989.

Appendix Page 8 David Alan Lubarsky, M.D. Curriculum Vitae
50. Lubarsky DA, Kaufman B, Turndorf H: Anesthetic care of a patient with an intracranial hemorrhage after thrombolytic therapy. J Clin Anes 2:276-279, 1989.
Other works, publications, and abstracts:
1. K. Candiotti, A. Kamat, F. Nhuch, D. Lubarsky, D. Birnbach: Treating PONV Ondansetron Prophylaxis Failures: A Comparison of Redosing with Ondansetron vs. Granisetron. (Abstract presentation at the IARS 79th Clinical and Scientific Congress in Honolulu, Hawaii, March 11 – 15, 2005).
2. Lubarsky D: Financial Implications of a Hospital’s Specialization in Rare Phsysiologically Complex Surgical Procedures. (Poster presentation at the ASA Annual Meeting in Las Vegas, NV, October 2004).
3. Estacio R, Lubarsky D, Barach P: Cardiac Arrest and Death during Anesthesia Secondary to Iatrogenic Hyperkalemia: Case Report and Database Review. (Poster presentation at the ASA Annual Meeting in Las Vegas, NV, October 2004).
4. Vigoda M, Gencorelli F, Lin S, Lubarsky D, Birnbach D: Anesthesia Information System Helps Identify Missed Opportunities for Perioperative Beta Blockade. (Abstract presentation at the ASA Annual Meeting in Las Vegas, NV, October 2004).
5. Vigoda M, Gencorelli F, Lin S, Birnbach D, Lubarsky D: Anesthesia Information System Demonstrates inadequacy of Perioperative Beta Blocker Therapy. (Abstract presentation at the ASA Annual Meeting in Las Vegas, NV, October 2004).
6. Macario A., Lubarsky D: The Impact of Desflurane and Sevoflurane on the Risk of Postoperative nausea and vomiting: a systematic review of the published literature. (Abstract presentation at the IARS 78th Clinical and Scientific Congress, Tampa, Florida, March 2004).
7. Donnelly AJ, Macario A, Lubarsky DA: Pharmacoeconomics of Inhaled Anesthetics. (Special Report Activity, ICPME accredited, McMahon Publishing Group, February 2004.
8. Candiotti KA, Lubarsky DA, Kamat A, Restler C: Implementation of Granisetron 0.1mg for Prophylaxis of P.O.N.V. (Poster Presentation at the American Society of Healthcare Pharmacists meeting in New Orleans, December 8-10, 2003).
9. Breslin D, Lubarsky D, Hopkins M, Gan TJ: Delayed Discharge from the Post Anesthetic Care Unit. An Ongoing Improvement Process. (Abstract presentation at the ASA Annual Meeting, San Francisco, California, October 2003).
10. Epstein RH, Dexter F, Abouleish AE, Whitten CW, Lubarsky DA: Cost Savings from Reducing Turnover Time Result From Reductions in Surgical OR Allocations, Not Less Overtime. (Abstract presentation at the ASA Annual Meeting, San Francisco, California, October 2003).
11. Dexter F, Lubarsky DA, Uncertainty in the Operating Rooms in Which Cases are Performed Has Little Effect on Operating Room Allocations and Efficiency (Award Winning Abstract

Appendix Page 9 David Alan Lubarsky, M.D. Curriculum Vitae
Presentation at the AACD 15th Annual Meeting, Orlando, Florida, October 13, 2002).
12. Dexter F, Lubarsky DA, Anesthesia Groups with Exclusive Contracts can Quantify the Cost of Operating Rooms Not Being Allocated and Cases Not Being Scheduled to Maximize Operating Room Efficiency (Award Winning Abstract Presentation at the AACD 15th Annual Meeting, Orlando, Florida, October 13, 2002).
13. Gan TJ, Lubarsky DA, Main causes of delay in-patient discharge from PACU in a major teaching hospital. (Abstract Presentation at ASA Annual Meeting, Orlando, FL, October 2002).
14. Lubarsky DA, Reves J. Straightening out RVU Formulas (letter). ASA Newsletter. June 2002.
15. Schow AJ, Lubarsky DA, Gan TJ: Can succinylcholine be safely used in hyperkalemic patients? (Abstract Presentation at the 2001 ASA Annual Meeting).
16. Olson RP, Schow AJ, Gan TJ, Lubarsky DA. Vascular Access Surgery in Hyperkalemic Patients. (Abstract Presentation at the 2001 ASA Annual Meeting).
17. Gan T, Dear G, Wright MD, El-Moalem H, Sigl J, Lubarsky DA. Patient Willingness to pay for avoidance of anesthesia related postoperative outcomes. (Poster Presentation at the IARS 75th Clinical and Scientific Congress, March 16-20, 2001).
18. Wright D, Lubarsky DA, Dear G, Sigl J, Reeves J, Gan T. Willingness to pay to avoid intraoperative awareness. (Poster Presentation at the IARS 75th Clinical and Scientific Congress, March 16-20, 2001).
19. Gan TJ, Lubarsky DA: Cost effectiveness ratio: an often misunderstood term (letter). Anesth Analg 88(5):1191–2, 1999
20. Petros KO, Knudsen NK, Sebastian MW, Lubarsky DA. Impact of education and practice guidelines for propofol use in the surgical intensive care unit. (Poster Presentation at ACCP/ESCP 1st International Congress on Clinical Pharmacy, Orlando, FL, April 1999) Pharmacotherapy 19(4):P350, 1999.
21. Lubarsky DA, DeLong ER: The impact of choice of muscle relaxant on postoperative recovery time. Anesth Analg 87:499–500, 1998.
22. Dear G, Lubarsky DA, Gilbert W, J Reves: Compliance with HCFA terminology; an automated system for audit of anesthesia documentation. Anesth Analg 86:S27, 1998.
23. Dear GdeL, King KP, Gilbert WC, Lubarsky DA: Is it possible to maintain drug cost savings: a two year follow-up report. Anesthesiology 89:A1352, 1998.
24. DeLong ER, Kwatra MM, Gan TJ, Glass PSA, Sanderson IC, Gilbert WC, Coleman RL, Lubarsky DA, Reves JG: A large population study reveals reduced anesthetic requirements in females. Anesthesiology 89:A126, 1998.
25. DeLong ER, Kwatra MM, Gan TJ, Glass PSA, Sanderson IC, Gilbert WC, Coleman RL, Lubarsky DA, Reves JG: Aging profoundly decreases anesthetic requirement. Anesthesiology 89:A825, 1998.

Appendix Page 10 David Alan Lubarsky, M.D. Curriculum Vitae
26. Gan TJ, Lubarsky DA, Sloan F, Dear R, Dear G: How much are patients willing to pay for a completely effective antiemetic? Anesthesiology 89:A7, 1998.
27. Sibert K, D’Ercole F, Gilbert W, Smith F, Lubarsky DA: Causes of OR delays: differing perceptions of anesthesiologists and OR nurses. Anesth Analg 84:S54, 1997.
28. Lubarsky DA: Understanding the term “cost-effectiveness.” J Clin Anes 9:603–604, 1997.
29. Lubarsky DA: HMO contracts should cover variable costs too. American Medical News, November 10, Volume 40, Number 42, p. 22, 1997.
30. Lubarsky DA: Response to: Bailey PL, Egan TD: The successful implementation of pharmaceutical practice guidelines? Far from convincing! Anesthesiology 87:1583–1584, 1997.
31. Lubarsky DA: Response to: Riley ET: Economic analysis of anesthetic drug use. Anesthesiology 87:1585–1586, 1997.
32. Lubarsky DA: Response to: Viby-Mogensen J: Implementation of pharmaceutical practice guidelines. Anesthesiology 87:1587, 1997.
33. Lubarsky DA: Sustaining cost savings through distribution control and individualized feedback. Anesthesiology 85:A969, 1996.
34. Lubarsky DA, Gilbert W, Alexander ML, Sanderson I: Validation of the programming of an anesthesia information management system for cost calculations. Anesthesiology 85:A1046, 1996.
35. Slaughter TF, Gittleson S, Lineberger C, Inge W, Wildermann N, Green C, Greenberg CS, Lubarsky DA, Krucoff MW: Continuous 12-lead ECG in patients undergoing peripheral revascularization: Incidence of ischemia and correlation with fibrinolytic activity. Anesthesiology 85:A72, 1996.
36. Lubarsky DA, Gan TJ, Glass PSA, Dear GD, Mythen M, Dentz M, White WD, Pressley CC, Dufore SM, Sibert KS, Gilbert WC, Sanderson IC, Coleman R, Ginsberg B, Temo J, FerreroConover D, Alexander ML, Reves JG: PACU clinical outcomes and financial savings following a pharmaceutical cost containment program in anesthesia using practice guidelines. Anesth Analg 82:S285, 1996.
37. King K, Dear G, Ginsberg B, Gilbert W, Lubarsky DA: Cost analyses to develop practice guidelines for muscle relaxants. Anesth Analg 82:S233, 1996.
38. Gan TJ, Lubarsky DA, Robertson K, Bennett D, Parrillo S, Sanderson I, Jhaveri R: The hospital cost of perioperative transfusion of a unit of red blood cells and other blood products. Anesth Analg 82:S123, 1996.
39. Sanderson IC, Gilbert WC, Lubarsky DA: Cost containment using an automated anesthesia record keeper. Anesth Analg 82:S391, 1996.
40. D’Ercole F, Gilbert W, Smith F, Lubarsky DA: Programming an automated anesthesia record keeper to track operating room delays. Anesthesiology 85:A976, 1996.

Appendix Page 11 David Alan Lubarsky, M.D. Curriculum Vitae
41. Gan TJ, Ginsberg B, Grichnik K, Sullivan F, Muir M, Lubarsky DA, Glass PSA: The use of patient-controlled analgesia to compare the efficacy of sufentanil for postoperative analgesia and its relative potency to morphine. Anesth Analg 80(supple 2):S142, 1995.
42. Gan TJ, Lubarsky DA, Robertson K, Bennett D, Parrillo S, Sanderson I, Jhaveri R: The hospital cost of perioperative transfusion of a unit of red blood cells and other blood products. Presented at the Joint Congress on Liver Transplantation, London, Sept. 27–30, 1995.
43. Gan TJ, Lubarsky DA, Robertson K, Gilbert WC, Grant AP, Reves JG, Clavien P: Analysis of the variable intra-operative anesthesia costs of a liver transplant procedure. Anesthesiology 83:A1053, 1995.
44. Hertz CM, Pressley CC, Dufore SM, Glass PSA, Gan TJ, Lubarsky DA: Nausea and vomiting— a costly anesthetic complication? Anesthesiology 83:A1036, 1995.
45. Lubarsky DA, Smith LR, Glass PSA: A comparison of maintenance drug costs of isoflurane, desflurane, sevoflurane, and propofol with OR and PACU labor costs during a 60 minute outpatient procedure. Anesthesiology 83:A1035, 1995.
46. Sanderson IC, Gilbert W, Sibert K, Lubarsky DA: Evaluation of a program for calculating and plotting isoflurane utilization. Anesthesiology 83:A388, 1995.
47. Mault J, Cilley R, Lubarsky DA, Bartlett R, Reed L: Physiologic and mathematical modeling of the oxygen delivery-consumption relationship. Crit Care Med 22:A105, 1994.
48. Lubarsky DA, Hahn C, Bennett DH, Smith LR, Bredehoeft SJ, Klein HG, Reves JG: The hospital cost (1992) of a simple perioperative allogeneic red blood cell transfusion. Anesth Analg 78:S258, 1994.
49. Dentz ME, Lineberger CK, Gilbert W, Ginsberg B, Lubarsky DA: Postoperative complications following the use of etomidate for thoracic and vascular surgery. South Med J 87(suppl 2):S12, 1994.
50. Lubarsky DA, Smith LR, Sladen RN, Mault JR, Reed RL: Defining the relationship of oxygen delivery and consumption: use of biologic system models. Anesthesiology 79:A303, 1993.
51. Lubarsky DA, Kaufman BS: Changes in lactate levels with decreased oxygen delivery and oxygen consumption under anesthesia. Anesth Analg 68:S171, 1989.
52. Lubarsky DA, Kaufman BS, Sharnick S, Turndorf H: The effects of induction of anesthesia on mixed venous and peripheral venous oxygen saturations. Anesth Analg 13:S172, 1989.
53. Lubarsky DA, Kaufman BS: Oxygen delivery under anesthesia: a prospective evaluation of 330 ML/MIN/M2 as a “critical” value. Anesth Analg 68:S173, 1989.
54. Lubarsky DA, Piantadosi C, Camporesi E, Griebel J: Measurement of cytochrome aa3 redox potentials by NIR spectroscopy during normovolemic hemodilution. Anesthesiology 71:A550, 1989.
55. Lubarsky DA, Capan L, Turndorf H: Spinal anesthesia--determination of hemodynamics by bioimpedance technique. Regional Anesthesia 13:S37, 1988.

Appendix Page 12 David Alan Lubarsky, M.D. Curriculum Vitae
56. Lubarsky DA, Sharnick S, Feiler M, Kronenfeld M: The effect of ventilation on aortic blood gases during left ventricular ejection prior to separation from cardiopulmonary bypass. Proceedings of the Society of Cardiovascular Anesthesiologists Annual Meeting, 1988.
Video presentations and other private sector publications:
1. Supportive Care for Surgical Patients: Confronting the Risks of PONV CD, PGA Annual meeting December 12 – 16, 2003, produced by Accel Healthcare Communications.
2. “Permission to Be Pain Free™: Understanding Labor Epidurals,” conceived, scripted and presented by David A. Lubarsky, Donald H. Penning, and Janice Henderson; produced as a joint venture between Duke University and The Informed Patient, LLC, © 1999.
3. Sevoflurane, PONV Anzemet & Zofran,” (Product representative training video). Written and presented by David A. Lubarsky, produced by Abbott Video Services, September 4, 1998.
4. “The Niche for Etomidate in Current Anesthetic Practice” (2 part training tape series distributed to hospitals nationwide), produced by Abbott Laboratories, 1992.
5. “Anesthesia Insites: Midazolam,” training video, scripting and appearance by David A. Lubarsky, produced by Roche Laboratories, 1992.
6. “Anesthesia Insites: Romazicon,” training video, scripting and appearance by David A. Lubarsky, produced by Roche Laboratories, 1992.
7. “Clinical Uses of Esmolol: Sub-Section for Uses in Vascular Anesthesia” produced by Anaquest, Inc., 1989.
8. “Anesthesia Demands for Cardiac and Vascular Surgery. Part 1: Cardiac Surgery” by Dr. Lubarsky. BOC Health Care, 1989.
9. “Anesthesia Demands for Cardiac and Vascular Surgery. Part 2: Vascular Surgery” by Dr. Lubarsky. BOC Health Care, 1989.
Conference proceedings and newsletters:
1. Lubarsky, DA: Deriving Value from Informational Systems, New Thoughts on Using NSAIDS in Perioperative Pain Management and Post-Operative Nausea and Vomiting. 29th Annual Vail Conference in Anesthesiology, February 1-8, 2003
2. Lubarsky, DA: Understanding PONV. Postgraduate Assembly 56th Meeting, December 6 – 10, 2002.
3. Lubarsky, DA: Main Causes of Delay in In-patient Discharge From PACU in a Major Teaching Hospital. American Society of Anesthesiologists Annual Meeting, October 12 – 16, 2002.
4. Lubarsky DA: Are computers useful to reduce costs in outpatient surgery? Society for Ambulatory Anesthesia (SAMBA) 15th Annual Meeting Syllabus, May 5-8, 2000.

Appendix Page 13 David Alan Lubarsky, M.D. Curriculum Vitae
5. Lubarsky DA: “Putting a Value on Pain, Suffering and Anxiety: Willingness-to-Pay Analyses” “Pharmaceutical Practice Guidelines”;“Computerization in the OR: Electronic Medical Record” published in the syllabus of the Scott & White Symposium, 6th Annual National Meeting, Santa Fe, NM, June 22-24, 2000 (Scott & White Hospital, Temple, TX).
6. Lubarsky DA, Reves JG: Using Medicare multiples results in disproportionate reimbursement for anesthesiologists compared to other physicians. Association of Anesthesia Clinical Directors (AACD) 12th Annual Meeting Syllabus, October, 1999.
7. Lubarsky DA: Managing perioperative drug and labor costs. Proceedings of the Society of Cardiovascular Anesthesiologists 20th annual meeting, April 24–28, 1998.
8. Lubarsky DA: Managing perioperative drug and labor costs. Proceedings of the Association of Anesthesia Clinical Directors Workshop on Operating Room Management, March 21–22, 1998.
9. Dexter F, Lubarsky DA: Managing with information: using surgical services information systems to increase operating room utilization. American Society of Anesthesiologists Newsletter 62(10):6–8, 1998.
10. Macario A, Lubarsky DA: Why are hospitals enamored with clinical pathways? American Society of Anesthesiologists Newsletter 62(10):9–12, 1998.
11. Lubarsky DA: Intravenous anesthesia is too expensive for my practice! Proceedings of the Society for Intravenous Anesthesia annual meeting, October 16, 1998.
12. Lubarsky DA: Cost-effective ambulatory anesthesia: The anesthesiologist’s view. In the Syllabus for the Society for Ambulatory Anesthesia (SAMBA) 12th Annual Meeting, Lake Buena Vista, FL, May 1–4, 1997.
13. Lubarsky DA: ICU care after vascular surgery (con). Proceedings of the Society of Cardiovascular Anesthesiologists 19th Annual Meeting, Baltimore, MD, May 11–14, 1997.
14. Lubarsky DA: Practice guidelines, information management and resource utilization: Buzzwords for the new millennium. Proceedings of the Association of Anesthesia Clinical Directors Annual Meeting, October 19, 1997.
15. D’Ercole F, Lubarsky DA, Reves JG: Duke’s innovative programming of an automated anesthetic record yields information essential for economic management of anesthetic practice. North Carolina Society of Anesthesiologists Newsletter, October, 1996.
16. Becker KE, Johnstone RE, Lubarsky DA: Choice of anesthetic drugs and muscle relaxants. American Society of Anesthesiologists Newsletter 59(5):8–11, 1995.
17. Cohen NH, Lubarsky DA: Cost-effective use of technology in clinical care. American Society of Anesthesiologists Newsletter 59(8):20–22, 1995.
Electronic, world wide web, and/or internet publications:

Appendix Page 14 David Alan Lubarsky, M.D. Curriculum Vitae
1. Lubarsky DA (Chief Editor and Project Manager): Anesthesiology On-Line. (1000 Chapter Textbook in preparation for emedicine.com)
2. Commentary: 1997: The year in review. In AnesthesiaWeb, January, 1998.
3. Commentary: Notes from the SCA (Society of Cardiovascular Anesthesiologists) annual meeting. In AnesthesiaWeb, June, 1998.
4. Commentary: What was new at the ASA in Orlando. In AnesthesiaWeb, November, 1998.
5. Commentary: What I did on my fall vacation in San Diego. In AnesthesiaWeb, November 1997.
PROFESSIONAL
Funded research performed:
1. Co $10,000 University of Miami Office of the Provost – inter school development grant. CoPrincipal Investigator with Dr. Michael Vigoda 2004.
2. Organon, Inc., $36,000 clinical study and research agreement with Organon Inc. These funds will help aid their research project entitled “A Multi-Center Trial to Evaluate the Interaction of Maintenance Doses of Rocuronium with an Intubating Dose of Rapacuronium, Rocuronium, or Succinylcholine.” Co-Principal Investigators: Drs. TJ Gan and David Lubarsky, 2000.
3. Aspect Medical Systems, Inc., $22,590 research agreement to support “Willingness to Pay for Avoidance of Awareness During General Anesthesia.” Co-Principal Investigators: Drs. David Lubarsky and TJ Gan, 1999.
4. Roche Laboratories, $100,000 grant x 3 years to the Department of Anesthesiology to administer and direct AnesthesiaWeb.com: An Educational Resource for Anesthesia Providers. Dr. Lubarsky, Founder and Chair, Editorial Board 1996–present.
5. North American Dräger – Co-Principal Investigator – $535,000 to $1.5 million contract to develop an Anesthesia Information Management System (AIMS) for Duke University Medical Center and Health System, contracted 1998.
6. Roche - $45,000 unrestricted grant in support of Database Use in Outcomes Research 1996
7. Glaxo-Wellcome – Principal Investigator $25,000 project grant, “Development of Methods to Objectively Value Intangible Elements of Health Care,” 1996–97.
8. Abbott Laboratories - Principal Investigator – $35,000 research grant to determine the Cp50 of etomidate and the relationship of myoclonus to plasma levels closed in 1992-3.
9. Sanofi Winthrop Pharmaceuticals - Principal Investigator – $10,000 research grant for the study “Comparison of Amrinone versus Nitroprusside for Hemodynamic Control and Support During Infrarenal Aortic Clamping for Abdominal Aortic Aneurysm Repair,” 1993.

Appendix Page 15 David Alan Lubarsky, M.D. Curriculum Vitae
10. Abbott Laboratories – $45,000 educational grant for an etomidate study group, 1992.
11. Somatogen – $13,500 educational grant to study the cost of perioperative transfusions, 1992.

Professional organizations:

•

American Society of Anesthesiologists, 1988 – Present

•

American Medical Association, 1988 – Present

•

Association of University Anesthesiologists, 2000 – Present

•

International Anesthesia Research Society, 1988 – Present

•

Florida Society of Anesthesiologists, 2002 - Present

•

North Carolina Society of Anesthesiologists, 1988 – 2002

•

Society of Cardiovascular Anesthesia, 1991 – Present

Recent international engagements:

•

Featured Speaker - Japanese Society of Anesthesiology May 2004 Nagoya, Japan.

•

Visiting Professor, Kagoshima Japan.

•

Commissioned Training in Anaesthesiology 2002/03, Pamela Youde Nethersole Eastern

Hospital, Hong Kong [by Dr. Wallace Chiu (wkychiu@ha.org.hk), Chairman, Training

Subcommittee in Anaesthesiology, Hospital Authority, Hong Kong] – January 2003

-

Valuing Health Care in 2002

-

Using Information Technology in Medicine – Near Future or False hope?

•

Valuing Healthcare lecture XXXIIth International Meeting of Anesthesiology and

Critical Care, March 18 & 19, 2000, in Paris, France, Prof. Pierre Coriat, organizer

Journees D’Enseignement Post Universitaire (JEPU) (Anesthesiology and Critical Care

Conference), Paris, France, March 17-23, 2000. Invited by Dr. Pierre Coriat. Lectures:

“Est-on prêt à payer la prise en charge de la douler et de l’anxiété postopératoires?” or

“Putting a value on pain, suffering and anxiety: willingness to pay?” and “Gestion

informatisée des coûtes des agents d’anesthésie” or “Managing perioperative drug costs

using informatics.”

National/state presentations, conferences, speaking and other panel engagements:

American Society of Anesthesiologists, Annual Meeting, panel on Pharmaceuticals, Economics and Anesthesia Practice (The Use of Practice Guidelines to Minimize Drug Costs.) October 26, 2004. American Society of Anesthesiologists, Annual Meeting, panel on Academic Anesthesiology Training Programs – Should you Secede from the Medical School to Better Meet your Academic and Clinical Missions? (Pro: Your Should Secede!) October 26, 2004

American Society of Anesthesiologists, Annual Meeting, panel on Practice Management, Oct 14, 2003.

Michigan State Society of Anesthesiologists, April 26, 2003. “Cox-2 Inhibitors: Periprocedural Pain Control and Thoughts on Central Sensitization.”

Appendix Page 16 David Alan Lubarsky, M.D. Curriculum Vitae
New York State Society of Anesthesiologists, Post Graduate Assembly, panel on the Future of Economics and Anesthesia, Dec 2002.
Panel Chair, Supporting Surgical Outcomes, dinner meeting at PGA, Dec 2002. Presentation, “The Value of PONV therapy.”
Medical University of South Carolina Continuing Education Weekend, Charleston, SC, May 4-6, 2001. Lecture: “Current Concepts in Neuromuscular Blockade.”
Kansas University Medical Center 51st Annual Postgraduate Symposium on Anesthesiology, Kansas City, Missouri, April 6-8, 2001. Lectures: “Where is the Value in IT?” and “Valuing Healthcare: New Approaches to Costs and Outcomes.”
Committee Chair, Drug Information Association workshop in collaboration with the Duke Clinical Research Institute, “Internet Health Information Programs: Integrating Vision and Basic Business Principals,” Durham, NC, April 3-4, 2000. Dr. Lubarsky, Program Committee with and Kevin A. Schulman, M.D., M.B.A. (Program Chairperson). Moderator of panel, Specialist content sites. Lecture: “Healthcare Internet Business Models that Work.”
Southern University Department of Anesthesia Chairs (SUDAC), Annual Meeting, Charleston, South Carolina, March 23-25, 2001. Lecture and discussion: “Departmental Practice Plans.”
International Anesthesia Research Society 75th Clinical and Scientific Congress, Ft. Lauderdale, Florida, March 16-20, 2001. Lecture: “Valuing Health Care: New Approaches to Costs and Outcomes.”
Society for Technology in Anesthesia, “STA 2001: An Information Odyssey,” Scottsdale, Arizona, January 10-13, 2001. Coordinator of Panel: “Who is the Information Consumer? User Perspectives on Anesthesia Information,” and Lecture “Understanding Value Creation from Information Systems Elucidates Consumers of That Information”
The University of Chicago Department of Anesthesia & Critical Care 14th Annual Conference, “Challenges for Clinicians in the New Millennium,” Chicago, Illinois, December 1-3, 2000. Presentations: “Willingness to Pay: Valuing Pain, Suffering & Anxiety in Health Care” and “Understanding the Business of E-Health.”
American Society of Anesthesiologists Annual Meeting, San Francisco, CA, October 15-18, 2000. Foundation for Anesthesia Education and Research (FAER) panel on “Information Overload: Data Analysis from Genes to Populations.” Lubarsky’s presentation: “Clinical Data: Outcomes, Cost and Quality”
Greater Atlanta Society of Anesthesiologists, New Concepts in Neuromuscular Blockade, September 14, 2000
Scott & White Symposium, 6th Annual National Meeting, Santa Fe, NM, June 22-24, 2000. Presentations: “Putting a Value on Pain, Suffering and Anxiety: Willingness-to-Pay Analyses” “Pharmaceutical Practice Guidelines” “Computerization in the OR: Electronic Medical Record”

Appendix Page 17 David Alan Lubarsky, M.D. Curriculum Vitae
Society for Ambulatory Anesthesia (SAMBA) Annual Meeting, Washington, DC May 5-8, 2000. Participated on the panel “Managing the Costs of Ambulatory Anesthesia” moderated by Alex Macario, M.D., M.B.A. Presentation: “Are Computers Useful to Reduce Costs in Outpatient Surgery?” Participated on the panel “Life After Residency” moderated by Peter S.A. Glass, M.B., Ch.B. Presentation: “Managing Your Money.”
Committee Chair, Drug Information Association workshop in collaboration with the Duke Clinical Research Institute, Durham, NC, April 3-4, 2000: “Internet Health Information Programs: Overview and Market Opportunities.” Dr. Lubarsky, Program Committee with Dr. Robert Califf, Robert Taber, Ph.D., and Kevin A. Schulman, M.D., M.B.A. (Program Chairperson)
New York State Society of Anesthesiologists 53rd Annual Post-Graduate Assembly, New York, NY. Participated on the panel: “The Year 2000: How Computers Will Improve Anesthesia,” December 12, 1999. Presentation: “Anesthesia Information Management: Economic Implications.”
American Society of Anesthesiologists Annual Meeting, Dallas, TX, October 12, 1999. Panel: “Practice Management/Compliance Coding—What They Didn’t Teach Us in Medical School,” Peter B. Kane, M.D., Moderator. Presentation: “Income Redistribution: The Politics of Communism in the OR”
American Society of Anesthesiologists Annual Meeting, Dallas, TX, October 12, 1999. Panel on Value-Based Anesthesia, Peter Rock, Panel Moderator. Presentation: “Quality Improvement and Identification of Key Indicators: Are Electronic Record Keepers the Answer?”
Association of Anesthesia Clinical Directors 12th Annual Meeting, October 10, 1999. Abstract presentation: “Using Medicare multiples results in disproportionate reimbursement for anesthesiologists compared to other physicians.”
New York State Society of Anesthesiologists 52nd Annual Post-Graduate Assembly, New York, NY. Participated on the “Fraud and Abuse” panel (Current Issues Forum) December 13, 1998. Presentation: “Making the Plan Work: How to Get Doctors to Do What They Don’t Want to Do.”
Value-Based Anesthesia Care Committee Panel discussion, (a committee of the American Society of Anesthesiologists), Orlando, FL, October 21, 1998. Presentation: “Anesthesia Practice Management: Practice Guideline and Clinical Pathway Development.”
Association of Anesthesia Clinical Directors Panel “Practical Approaches to OR Management” at the American Society of Anesthesiologists annual meeting, Orlando, FL, October 19, 1998. Presentation: “Maximizing Use of an Anesthesia Information Management System in 1998— What’s New, What’s Left to Do, and Is It for YOU?”
Society for Intravenous Anesthesia (SIVA) Annual Meeting, Orlando, FL, October 16, 1998. Lecture: “Is Intravenous Anesthesia Too Expensive for My Practice?”
Society of Cardiovascular Anesthesiologists (SCA) Workshop on Perioperative Cost Management and Contract Negotiation in Cardiac Surgery, Seattle, WA, April 25, 1998. Lecture: “Managing Drug Costs in the Perioperative Period” and leading a breakout session “Managing

Appendix Page 18 David Alan Lubarsky, M.D. Curriculum Vitae
Labor Costs in the Perioperative Period.” April 27, 1998: Breakfast panel with Dr. Robert Johnstone: “Economics and the Cardiovascular Anesthesiologist.”
Association of Anesthesia Clinical Directors workshop on operating room management, Phoenix, AZ, March 20–22, 1998. (Invited by Dr. William Mazzei, University of California-San Diego) Lecture: “Real World Cost Reduction.”
Nashville Society of Anesthesiologists, Nashville, TN, September 25, 1997.
Pittsburgh Symposium for Nurse Anesthetists, Pittsburgh, PA, September 27, 1997.
International Anesthesia Research Society annual meeting, San Francisco, CA, March 14–18, 1997. “Anesthesia Information Management: Where Are We?” presented by J.G. Reves, M.D., Thomas E. Stanley, M.D. and the Duke Anesthesia Section on Information Systems (Dr. Lubarsky, member).
Society of Cardiovascular Anesthesiologists 19th annual meeting, Baltimore, MD, May 11–14, 1997. (Invited by Steven Frank, M.D. and Jan C. Horrow, M.D., Chair, Scientific Program Committee) Presentation: “ICU Care After Vascular Surgery (Con).”
American Association of Anesthesia Assistants national meeting, Kiawah Island, SC, May 16–18, 1997. Lectures: “The Clinical Use of Sevoflurane” and “The Niche for Etomidate in Current Anesthetic Practice.”
American Society of Anesthesiologists Bi-District Meeting, New Orleans, LA, May 23–25, 1997. (Invited by Donald Harmon, M.D. of the Ochsner Hospital) Lecture: “Cost Containment in Anesthesia.”
Association of Anesthesia Clinical Directors annual meeting, San Diego, CA, October 19, 1997. (Invited by Barbara DeRiso, M.D., Director of the AACD) Keynote address: “Practice Guidelines, Information Management and Resource Utilization—Buzzwords for the New Millennium.”
NC Society of Anesthesiologists 1996 Annual Fall Meeting in Myrtle Beach, SC, September 20– 22, 1996. Lecture: “Value Based Anesthesia: The Academic Experience.”
Scott & White Memorial Hospital 5th Annual Anesthesia Update/Resident Research Day, Temple, TX, April 13, 1996. (Invited by Charles McLeskey, M.D.) Lectures: “Pharmaceutical Practice Guidelines” and “Management Controversies for the Patient at Risk for Myocardial Ischemia Undergoing Non-cardiac Surgery.” After dinner keynote address: “Economics vs. Hypocrites.”
American Society of Anesthesiologists annual meeting, Washington, DC, March 9–13, 1996. Poster presentation: “PACU Clinical Outcomes and Financial Savings Following a Pharmaceutical Cost Containment Program in Anesthesia Using Practice Guidelines.” Association of University Anesthesiologists Satellite Symposium on Outcomes Research, Chatham, MA, May 19–21, 1996. Poster presentation: “Pharmaceutical Practice Guidelines in Anesthesia: Implementation, Cost Savings and Outcome”
American Society of Anesthesiologists annual meeting, Morial Convention Center, New Orleans, LA, October 19–23, 1996. Poster Presentation: “Sustaining Cost Savings Through Distribution

Appendix Page 19 David Alan Lubarsky, M.D. Curriculum Vitae
Control and Individualized Feedback.” Poster-Discussion Presentation: “Validation of the Programming of an Anesthesia Information Management System For Cost Calculations.”
Society for Intravenous Anesthesia Fourth Annual Meeting, October 20, 1995. Topic: “Does Fast Track Recovery Have Limitless Possibilities?”
Southern University Department of Anesthesia Chairmen (SUDAC) 1995 Annual Meeting, Washington Duke Inn, Durham, NC, April 6–7, 1995. Lecture: “Cost Savings for Hospital and Department—The Duke Plan.”
Dallas County Anesthesia Society, Dallas, TX, September 21, 1995. Tejas Anesthesia, San Antonio, TX, December 7, 1995. Greater Atlanta Society of Anesthesiologists, Atlanta, GA, November 17, 1994. Society of Cardiovascular Anesthesiologists Breakfast Panel at the American Society of Anesthesiologists annual meeting, October 17, 1994. Topic on hemodilution: “Will It Work? How Much Will It Cost?”
First National Duke Heart Center Conference—“Shaping the Future: Innovations in Technology, Quality, and Caring” September 22–24, 1994. Presentation: “Patients at Risk for Ischemia Going to the Operating Room for Non-Cardiac Surgery: Management Controversies”
American Society of Anesthesiologists Annual Meeting, Washington, DC, October 9-13, 1993. Poster presentation: “Defining the relationship of oxygen delivery and consumption: use of biologic system models.”
American Society of Anesthesiologists Annual Meeting, New Orleans, LA, October 14-18, 1989. Poster presentation: “Measurement of cytochrome aa3 redox potentials by NIR spectroscopy during normovolemic hemodilution.”
Visiting professorships, 2004:
Mount Sinai School of Medicine, Department of Anesthesiology, New York, New York, October 5-7
Visiting professorships, 2003:
Medical College of Georgia, Department of Orthopedics, Macon, Georgia, October 7-8 Hong Kong College of Anesthesiology – lectured at all hospitals in Hong Kong. Hosted by Dr. Wallace Chiu, Pamela Youde Nethersole Eastern Hospital, Department of Anesthesiology, Hong Kong, China, January 6-10
Visiting professorships, 2002:
Washington University, Department of Anesthesiology, St. Louis, Missouri, November 5-6
Baylor University Medical Center, Dallas, Texas, May 21-22 (Grand Rounds: “NMB Update-Reexamining Succinylcholine and it’s Alternatives”)
University of Wisconsin, Department of Anesthesiology, Madison, Wisconsin, April 2-3

Appendix Page 20 David Alan Lubarsky, M.D. Curriculum Vitae
Visiting professorships, 2001:
State University of New York (SUNY) at Stony Brook, Long Island, NY, June 7-8 (Resident lecture: “Understanding Cost Concepts in the Literature” Grand Rounds: “Valuing Health Care: New Approaches to Costs and Outcomes”) University of Miami Medical Center, Department of Anesthesiology, Miami, FL, June 7 Christiana Hospital, Newark, DE, May 30 Peninsula Regional Medical Center, Salisbury, MD, May 29 St. Francis Hospital, Greenville, SC, April 30 University of Texas-Southwestern Medical Center Department of Anesthesiology, Dallas, TX, March 15-16 (Faculty lecture: “What Are Patients Willing to Pay?” Resident lecture: “What Are They Willing to Do About Nausea?”) Atlanta Medical Center Department of Anesthesiology, Atlanta, GA, February 14 Baptist Hospital Anesthesia Group, Pensacola, FL, January 31 Roper and St. Francis Hospitals, Charleston, South Carolina, January 18
Visiting professorships, 2000:
Crawford Long Hospital, Department of Anesthesiology, Atlanta, GA, November 15 St. Luke’s-Roosevelt Hospital, Department of Anesthesiology, New York, NY, November 7. Christiana Hospital and Health System, Department of Anesthesiology, Newark, DE, May 3. William Beaumont Hospital, Department of Anesthesiology, Royal Oak, MI, April 12.
Visiting professorships, 1999:
University of Texas-Southwestern Medical Center, Parkland Memorial Hospital, Department of Anesthesiology, April 28, 1999. University of South Florida, Department of Anesthesiology, Tampa General Hospital, Tampa, FL, April 22, 1999. Visiting Professor, Department of Anesthesiology, Loma Linda University, Loma Linda, CA, January 27, 1999. Washington Hospital System, Anesthesiology Department, Washington, DC, January 19, 1999. Rex Hospital, Department of Anesthesiology, Raleigh, NC, June 3, 1999. Jackson Memorial Hospital, Department of Oral and Maxillofacial Surgery, Miami, FL, March 11, 1999. Forsyth Memorial Hospital, Anesthesia Department, Winston-Salem, NC, February 11, 1999.

Appendix Page 21 David Alan Lubarsky, M.D. Curriculum Vitae
The Scripps System, Anesthesia Department, San Diego, CA, January 27, 1999
Visiting professorships, 1998
St. Joseph’s Hospital System, Anesthesia Department, Albuquerque, NM, November 11, 1998. University of Michigan, Department of Anesthesiology, Ann Arbor, MI, February 25–26: “Relational Databases, Benchmarking, Practice Guidelines and Other Buzzwords of the New Millennium” and “Management Controversies for the Cardiac Patient Undergoing Non-Cardiac Surgery” St. Anthony Hospital, Denver, CO, September 28, 1998. Olean General Hospital, Jamestown, NY, September 16, 1998. St. Vincent’s Medical Center in Worcester, MA, May 20, 1998.
Visiting professorships, 1997
Visiting Professor, Stanford University Medical Center, Department of Anesthesia, Stanford, CA, December 3–4, 1997. (Alex Macario, M.D., M.B.A., host) Wednesday Grand Rounds lecture: “Relational Databases, Benchmarking, Practice Guidelines and Other Buzzwords of the New Millennium.” Thursday afternoon case discussion and evening case discussion with Drs. Vitez, Navarro, Scibetta, Diachun of the Stanford faculty Health Policies Fellowship. Fletcher Allen Health Care, M.C.H.V. Campus, Burlington, VT, November 20, 1997. Visiting Professor, New York University Medical Center, Department of Anesthesiology, New York, NY, November 18–19, 1997. (Invited by Herman Turndorf, M.D., Chair) Guest Speaker at Morbidity & Mortality Grand Rounds. Lectured on Wednesday morning: “Relational Databases, Benchmarking, Practice Guidelines and Other Buzzwords of the New Millennium.” Newark Beth Israel Hospital, Newark, NJ, April 7, 1997.
Hackensack University Medical Center, Hackensack, NJ, April 8, 1997. Hartford Hospital, Hartford, CT, September 4, 1997. Rhode Island Hospital, Providence, RI, October 8, 1997. Abbott Northwestern Medical Center, Minneapolis, MN, November 11, 1997. Visiting Professor, Medical College of Georgia, Department of Anesthesiology, Augusta, GA, November 12, 1997. Conference presentation: “Relational Databases, Benchmarking, Practice Guidelines and Other Buzzwords of the New Millennium.” Case presentation. Doctors of the Medical Center of Columbus, St. Francis and Doctor’s Hospitals, Columbus, GA, November 13, 1997. Keynote speaker at the program “New Advances in Anesthesia,” Methodist Hospital, St. Louis Park, MN, November 10, 1997.

Visiting professorships, 1996

Appendix Page 22 David Alan Lubarsky, M.D. Curriculum Vitae

Athens Regional and Saint Mary’s Hospitals, joint Grand Rounds, Athens, GA, January 18, 1996.
Visiting Professor, Vanderbilt University Department of Anesthesiology, Nashville, TN, February 22, 1996. (Invited by Charles Beattie, M.D., Ph.D., Chairman) Facilitated a multidepartmental task force meeting. Subject: “Expense Reduction—Anesthesia Drugs.” Lecture: “Pharmacoeconomics in Anesthesia.”
Piedmont Hospital, Atlanta, GA, March 27, 1996.
Tampa General Hospital, Tampa, FL, May 9, 1996.
Richland Memorial Hospital, Columbia, SC, May 16, 1996.
St. Louis University Department of Anesthesiology, St. Louis, MO, August 14, 1996.
The Medical Center of Central Georgia, Macon, GA, August 22, 1996.
Visiting Professor, University of Alabama–Birmingham, Department of Anesthesiology, Birmingham, AL, September 16, 1996. Lectures: “Value Based Anesthesia: The Academic Experience” and “Management Controversies for Cardiac Patients Undergoing Non-cardiac Surgery”
St. John’s Hospital, Queens, NY, September 30, 1996.
Addressed regional gathering of anesthesiologists, Ritz-Carlton Hotel, Boston, MA, May 19, 1996.
Addressed regional gathering of anesthesiologists, The Plaza Hotel, New York, NY, June 9, 1996.
Addressed regional gathering of anesthesiologists, Baltimore, MD, June 30, 1996.
American Association of Nurse Anesthetists national meeting to discuss practice and reimbursement issues when CRNAs and anesthesiologists are working together, Rosemont, IL, September 12, 1996

Visiting professorships, 1995

Baylor University Medical Center, Dallas, TX, September 20, 1995.
Mercy Hospital, Pittsburgh, PA, November 1, 1995.
Visiting Professor, University of Medicine and Dentistry of New Jersey, Robert Wood Johnson Medical School, New Brunswick, NJ, November 8, 1995. Lecture: “Management Controversies for the Patient at Risk for Myocardial Ischemia Undergoing Non-cardiac Surgery”

Visiting professorships, 1994
Deaconess Hospital, Boston, MA Maine Medical Center, Department of Anesthesiology, Portland, ME, August 4, 1994.

Appendix Page 23 David Alan Lubarsky, M.D. Curriculum Vitae Bronx–Lebanon Hospital Center, Department of Anesthesiology, Bronx, NY, November 30, 1994.
Visiting professorships, 1993
New York University Medical Center, New York, NY Massachusetts General Hospital, Cardiac Division, Boston, MA University of Medicine and Dentistry of New Jersey, Newark, NJ Wake Medical Center, Raleigh, NC Saint Barnabas Hospital, Livingston, NJ Sutter Hospital, Sacramento, CA Christiana Hospital, Wilmington, DE Brandywine Regional Medical Center, Coatesville, PA Englewood Hospital, Englewood, NJ
Non-physician presentations, 2001
Draeger Global Management Team Meeting, at the R. David Thomas Center of the Fuqua School of Business, Duke University, February 1, 2001. Presentation: “The Value of Information Technology.” Chair, Roche Pharmaceuticals, Advisory panel on PONV, Miami FL Dec 2001. “Understanding the pharmacoencomics of PONV agents” Pain Management Advisory Board, Pfizer/Pharmacia
Non-physician presentations, 2000
Chair, Pharmacoeconomic Council on Neuromuscular Blocking Agents Retreat, Organon, Inc., St. Thomas, VI, May 19-21, 2000 Remifentanil Advisory Board, Abbott Laboratories, Chicago, IL, May 12-13 Vertebrae Medical Advisory Board (an Internet company to support web-medicine), Westchester, NY, May 12 Cox-II/Parecoxib – U.S. Health Outcomes Advisory Group Meeting, Searle, Chicago, IL, April 24-25 Dexmedetomidine Advisory Panel, Abbott Laboratories, Aventura, FL, March 3-5 Trainer, Abbott Laboratories Perioperative Services Meeting, Dallas, TX, February 6 AnesthesiaWeb Position Strategy Meeting, New York, NY, January 12.

Appendix Page 24 David Alan Lubarsky, M.D. Curriculum Vitae
Other presentations, 1998
“The Impact of Inhalation Agents on Global Cost,” Cog Hill Golf and Country Club, Lemont, IL, September 4, 1998. Addressed the North American Dräger national sales meeting, Philadelphia, PA, March 29, 1998. Lecture: “Anesthesia Information Systems of the New Millennium.” Addressed the Abbott Laboratories national sales training meeting, Ft. Lauderdale, FL, February 3, 1998. Lecture: “The Economics of Postoperative Nausea and Vomiting.”
Non-physician presentations, 1997
Addressed Abbott Laboratories national product development group, Chicago, IL, March 24, 1997. Lectures: “Types of Studies to Determine Cost Justification” and “Economic Trends and Issues in Health Care Related to Anesthesia.” Addressed Abbott Laboratories national sales training meeting, Chicago, IL, July 27–30, 1998. Lectures: “Clinical Implications of Package Insert Changes” and “Cost Perspectives: Low Flow Sevoflurane.”
Non-physician presentations, 1996
Panama City, FL, March 6, 1996. Addressed the Amidate® (etomidate) Advisory Board of Abbott Laboratories, meeting in Washington, DC, March 8, 1996. Lecture: “General Cost Concepts and Cost Justification for Etomidate” Addressed the Abbott Laboratories Sevoflurane Speakers Development Meeting, Hotel Sofitel, Rosemont, IL, May 17–18, 1996. Lecture: “The Cost Justification for Sevoflurane.”
Other presentations, 1994
Lectured at the Osler Anesthesiology Review Course, Ft. Lauderdale, FL, February 14–15, 1994. Lectures: “Trauma,” “How to Take the Written Boards,” “How to Take the Oral Boards,” “Anesthesia for Carotid Endarterectomy,” “A Comparison of Induction Agents,” “Management Controversies,” “Answering Strategies for the Oral Boards”.
Other presentations, 1993
Lectured at the Osler Anesthesiology Review Course, Chicago, IL, August 9–14, 1993. Lectures: “Recovery Room,” “Answering Strategies for the Board Exams,” “The Induction Agent for the

Appendix Page 25 David Alan Lubarsky, M.D. Curriculum Vitae
Boards,” “Carotid Endarterectomy,” “Pre-operative Evaluation I,” “How to Take Board Exams,” and “Pre-operative Evaluation II.”
Lectured at the Osler Anesthesiology Review Course, Tampa, FL, January, 1993. Lecture: “How to Take the Oral Board Exam.”

Editorial and review board positions:

1. Co - Editor-in-chief of Anesthesiology , the electronic anesthesia textbook on emedicine.com. Under construction.
2. AnesthesiaWeb, a World Wide Web site developed for the anesthesia community (accumulated 16,000 subscribers, the largest anesthesia e-magazine in the world), Chair, Editorial Board, October 1996–2002.

3. Journal of Clinical Anesthesia, Section Editor, Cost Containment and Operations Improvement, 1995–present.

4.

Lubarsky, DA: Abstract Reviewer on Economics, Education and Patient Safety. 77th and

78th Annual IARS Congress, March 27 – 31, 2004

5. Journal of Clinical Monitoring and Computing, Section Editor, Information Systems, 1999-2002
6. Anesthesiology, Guest Reviewer, 1996–present.
7. Anesthesia and Analgesia, Guest Reviewer, 1991–present.

8. Cardiovascular and Thoracic Anesthesia Journal Club Journal – Section Editor, Vascular Anesthesia, 1996–1999.

9. Anesthesia Cost Containment bulletin board on the Internet, Coordinator and Initiator, 1995.

10. TranspO2rt, Contributing Editor, 1993-1994.

11. Butterworths Publishing Company, Boston, Guest Reviewer of anesthesia texts, 1991–93.

TEACHING

Awards:

•

Medical Student “Teacher of the Year” Award, 1990.

•

Fuqua Scholar Award, 1999.

Teaching specialization:

• Mentor to cost effective care clerkship

• Annual advisee to multiple residents

Appendix Page 26 David Alan Lubarsky, M.D. Curriculum Vitae

Lectures for Fuqua School of Business Course “Informatics, the internet, and healthcare” Fall 2000, Term 1 (Course repeated with update Fall 2001, Term 1)

• “Informatics, The Internet and Healthcare: Introduction and Overview,” August 28 • “IT Development and Value,” “EMR Ideals and Recap,” “Functionality of Other HIS,”
August 31 • “Resource Utilization Control Using Informatics Systems,” September 4 • “The Medicalogic Business Model – ROI for EMR,” Sept. 7 • “Introduction to The Internet,” and B2B business exchanges September 11 • “MD2MD Texts, Journals, CME and Intellectual Property,” September 14 • “The Regulatory Environment,” September 18 • “Content Sites,” Sept 21 • “Medical Care Over the Internet,” Sept 28

Spring 2001, Term 3 • “Operations Management Seminar, Department of Operations: Healthcare and Management Science,” March 5

University Lectures

University of Miami – School of Medicine Educational Lectures 2002

Duke University Medical Center Educational Lecture, 2001
 Resident Lecture: “How to Value Health Care.”  Medical Student 2nd year Medical Practice in Health Systems (MPS 206C.82) Lectures,
“Understanding Cost Concepts in the Literature.”

Duke University Medical Center Educational Lectures, 2000
 Resident Lecture: “Management Controversies for the Patient At-Risk for Myocardial Ischemia Undergoing Non-Cardiac Surgery.”
 Medical Student 2nd year Medical Practice in Health Systems (MPS 206C.82) Lectures, “Understanding Cost Concepts in the Literature.”

Duke University Medical Center Educational Lectures, 1999
 Anesthesiology Resident Lecture, “Contracts, Reimbursement, and Compliance Issues”  CA-1 Resident Orientation Lecture, “PACU Issues and Transport”  Medical Student 2nd year Medical Practice in Health Systems (MPS 206C.82) Lectures,
“Understanding Cost Concepts in the Literature.”

Duke University Medical Center Educational Lectures, 1998
 Medical Student 2nd year Medical Practice Health Systems Lecture, “Understanding Cost Concepts in the Literature”
 CA-1 Resident Orientation Lecture, “PACU Issues and Transport”  Resident Lecture, “Preparing for the Oral Boards”

Appendix Page 27 David Alan Lubarsky, M.D. Curriculum Vitae
 Medical Student 2nd year Medical Practice Health Systems Lecture, “Understanding Cost Concepts in the Literature”
 Resident and Residency Graduate All-day Seminar, “Preparing for the Anesthesia Orals”
Duke University Medical Center Educational Lectures, 1997
 Grand Rounds, “Relational Databases, Benchmarking, Practice Guidelines and Other Buzzwords of the New Millennium”
 Anesthesiology Resident Lecture, “Understanding Cost Concepts in the Literature: Part 2”  Medical Student 2nd year Medical Practice Health Systems Lecture, “Understanding Cost
Concepts in the Literature”  Anesthesiology Resident Lecture, “Understanding Cost Concepts in the Literature: Part 1”  Resident Lecture, “Controversies in Care of the Patient with Coronary Artery Disease for
Non-cardiac Surgery”  Resident and Residency Graduate Weekend Seminar, “Preparing for the Anesthesia Orals”  Medical Student 2nd year Medical Practice Health Systems Course (previously called the
Cost-Effective Care Clerkship), Lecture, “Understanding Cost Concepts in the Literature”  Resident Lecture, ”Common PACU Problems”  Medical Student 2nd year Cost Effective Care Clerkship Lecture, “Understanding Cost
Concepts in the Literature”  CRNA Staff Meeting Presentation, “New Medicare Teaching Physician Rules: How They
Affect the Anesthesia Care Team”  Resident and Residency Graduate Weekend Seminar, “Preparing for the Anesthesia Orals”  Medical Student 2nd year Cost Effective Care Clerkship Lecture, “Understanding Cost
Concepts in the Literature”
Duke University Medical Center Educational Lectures, 1996
 Medical Student 2nd year Cost Effective Care Clerkship Lecture, “Understanding Cost Concepts in the Literature”
 Resident and Residency Graduate Weekend Seminar, “Preparing for the Anesthesia Orals”  Resident Lecture, “Common Problems and Decision Making”  Departmental Grand Rounds, “Morbidity and Mortality”
 Medical Student 2nd year Cost Effective Care Clerkship Lecture, “Understanding Cost Concepts in the Literature”
 Departmental Grand Rounds, with Dr. JG Reves, Department Chairman, “The New HCFA (Medicare) Guidelines”
 Resident lecture, “New Medicare Teaching Rules--How They Affect You, the Resident.” (Short presentation followed by Question & Answer Session on the Introduction of New Departmental Policies)
 Departmental Grand Rounds, “Cost Containment”  Resident Lecture, “Preoperative Evaluation of the Cardiac Patient for Non-Cardiac
Surgery”  Medical Student 2nd year Cost Effective Care Clerkship Lecture, “Understanding Cost
Concepts in the Literature”  Medical Student 2nd year Cost Effective Care Clerkship Lecture, “Understanding Cost
Concepts in the Literature”  Critical Care Grand Rounds, “Cost Containment in the ICU”
Duke University Medical Center Educational Lectures, 1995

Appendix Page 28 David Alan Lubarsky, M.D. Curriculum Vitae
 Medical Student 2nd year Cost Effective Care Clerkship Tutorial Sessions  Anesthesiology Resident Lecture, “Common Problems in Anesthesia”  Medical Student 2nd year Cost Effective Care Clerkship Lecture, “Understanding Cost
Concepts in the Literature”  Anesthesiology Resident Lecture, “Common Problems in Anesthesia”  Grand Rounds in Family Medicine, “Understanding Cost Concepts in the Literature”  Anesthesiology Resident Lecture, “Board Review”  Medical Student 2nd year Anesthesiology Rotation Lecture, “Hemodynamic Monitoring”
Duke University Medical Center Educational Lectures, 1994
 Current Topics in Vascular & Thoracic Anesthesia (CME Category 1 departmental conference), “Prevention of Endotracheal Tube-Induced Coughing During Emergence from General Anesthesia” with Dr. Daryl Malak
 CA-1 Resident Orientation Lecture, “Recovery Room Problems (& Transport): Basic Clinical Problem Solving”
 Current Topics in Vascular & Thoracic Anesthesia (CME Category 1 departmental conference), “Infection Control in Anesthesia” with Dr. Josef Grabmayer
 Anesthesiology Resident Lecture (Vascular & Thoracic Series), “Management Controversies for the Patient at Risk for Myocardial Ischemia Undergoing Non-cardiac Surgery”
 Current Topics in Vascular & Thoracic Anesthesia (CME Category 1 departmental conference), “Cell Saver: To Use or Not to Use?” with Dr. Nancy Knudsen
National board review courses (Invited lectures given multiple times 1991–1995):
“How to Take the Oral Board Exam” “Carotid Endarterectomy” “Oral Exam Answering Strategies” “Pre-operative Evaluation—History and Physical Exam” “Pre-operative Evaluation—Labs and Tests” “Written Questions and Answers” “Recovery Room—Differential Diagnoses and Therapies for Common Clinical Problems” “Induction Agents for the Boards” “Trauma Anesthesia”
SERVICE
Committees and offices:
Florida Society of Anesthesiologists: FSA Board Member 2003 Ad hoc non-voting Board invitee 2002 – 2003
American Society of Anesthesiologists (ASA) ASA Delegate for FSA, 2003 Committee on Economics 2003- present Committee on Information Management 2002-3 Committee on Electronic Media and Information Technology, 2001-2. Committee on Value Based Anesthesia Care 1995-1999

Appendix Page 29 David Alan Lubarsky, M.D. Curriculum Vitae
Task Force on Value-Based Anesthesia 1994 – 1995 Ad Hoc Committee on Health Outcomes in Anesthesia, chaired by Alex Macario, M.D., M.B.A. (October, 1997 – present)
University of Miami-School of Medicine Chair, Department of Anesthesiology overseeing 25MM annual budget, 300 employees including 130 interns, residents and fellows, the largest training program in the world. Medical Center Internet Group Chief Search 2002-2003 Governing Board 2001-present
Duke University Medical Center and Health System Duke University Hospital, Perioperative Executive Committee, 2000 - 2002. Duke University Health System/Duke University Medical Center Internet Advisory Committee, 2000 – 2002. Managed Care Committee (PDC = Private Diagnostic Clinic = 850 MD paratnerhsip) and PDC representative to Managed Care Coordination Group (Duke University Health System and PDC) 2001-2002. Private Diagnostic Clinic Business Strategy Committee, 1999 – 2002. Steering Committee, Duke University Health System Revenue Management Initiative, October, 1999 - 2002. Organizer, Duke University Medical MBA’s (an internal consulting group for the Duke University Health System), 1999. Physician Co-Director, Private Diagnostic Clinic (HCFA/CMS) Compliance Committee, March, 1997 - 2002. Administration and Citizenship Work Group, managed by Provider Transition Strategies, LLC, charged with implementing a physician performance improvement system within the Duke Health System, February, 1998 – February, 1999. Perioperative Services Advisory Committee, 1997 – 2002. Faculty of Medical School cost-effective care course, 1995 – 2002. Private Diagnostic Clinic Retirement Trust Plan Committee, representing the Departments of Anesthesiology, Pathology, Radiation Oncology and Radiology, 1995 – 2002. Product Standardization Committee, Departmental Representative, May, 1995 – 1996. Medical Center Cost Effectiveness Committee, January, 1995 – 2002. Task Force on Teaching Cost Effectiveness, April, 1994 – June, 1995.
Duke Hospital Operations Improvement Steering Committee, 1994 – 1996. Operating Room Mission Statement Committee, 1994. Pharmacoeconomics Committee, 1994. Liaison to Operating Room Clinical Laboratories, 1994 – 2002. Task Force to Choose Managed Care Partners, 1994. Duke University Medical Center, Hospital Budget Advisory Committee and Capital Equipment Committee, 1991 – 1994.
Duke Department of Anesthesiology Chairman, Finance Committee, January, 1991–2002. Chairman, Equipment, Supplies, and Product Standardization Committee, 1996–2002. Coordinator, Practice Guidelines Development, 1994–2002. Coordinator, Drug Utilization Review, 1995–2002. Director, Outside Hospital Anesthesia Service Contracts, 1996–2002. Physician Director of Reimbursement Analysts, 1996–2002. Departmental Compliance Officer

Appendix Page 30 David Alan Lubarsky, M.D. Curriculum Vitae
Developer of departmental wide staffing model & incentive plans Direct supervision of business office and business manager Chief, Division of General/Vascular/Transplant Anesthesia and Surgical Critical Care Medicine (12 attendings, 10 CRNAs, 2-4 residents, 2-4 fellows, 8 PA’s in preop screening unit) 1998-2002 Coordinator/creator, Current Topics in Vascular and Thoracic Anesthesia, a weekly CME Category 1 approved conference, July 1991–July 1998. Director, Departmental Retreat, July 1994, “Upping the Pace of ACE (Anesthesia Cost Effectiveness)”. Resident Education Committee, 1991–1994. Director, Mock Oral Board Review Course, 1989–2002.

Appendix Page 31 David Alan Lubarsky, M.D. Curriculum Vitae
APPENDIX A
ELECTRONIC, WORLD WIDE WEB AND/OR INTERNET PUBLICATIONS: List of all literature reviews done for AnesthesiaWeb (http://www.anesthesiaweb.com)
1. Literature review: Dexter F et al: Decreases in anesthesia-controlled time cannot permit one additional surgical operation to be reliably scheduled during the workday. Anesth Analg 81:1263–8, 1995 in AnesthesiaWeb, November, 1996
2. Literature review: Dexter F and Tinker J: Analysis of strategies to decrease postanesthesia care unit costs. Anesthesiology 82:94–101, 1995 in AnesthesiaWeb, November, 1996
3. Literature review: Connors AF Jr et al: The effectiveness of right heart catheterization in the initial care of critically ill patients. JAMA 276:889–97, 1996 and the accompanying editorial: Should a moratorium be placed on sublingual nifedipine capsules for hypertensive emergencies and pseudoemergencies. JAMA 276:1328 in AnesthesiaWeb, December, 1996
4. Literature review: Mangano et al: Review of effect of atenolol on mortality and cardiovascular morbidity after noncardiac surgery. N Engl J Med 335:1713, 1996 and accompanying editorial, Eagle and Froelich: Reducing cardiovascular risk in patients undergoing noncardiac surgery. N Engl J Med 335(23):1761, 1996 in AnesthesiaWeb, January 1997
5. Literature review: Katz SG and Kohl RD: Selective use of the intensive care unit after nonaortic arterial surgery. J Vasc Surg 24:235–9, 1996 in AnesthesiaWeb, February, 1997
6. Literature review: Wright I et al: Statistical modeling to predict elective surgery time. Anesthesiology 85:1235–45, 1996 in AnesthesiaWeb, February, 1997
7. Literature review: Twersky R et al: What happens after discharge? Return hospital visits after ambulatory surgery. Anesth Analg 1997;84:319–24 in AnesthesiaWeb, March, 1997
8. Literature review: Blum U et al: Endoluminal stent grafts for infrarenal abdominal aortic aneurysms. N Engl J Med 1997;336:13–20 in AnesthesiaWeb, March, 1997
9. Literature review: Claxton AR, et al: Evaluation of morphine versus fentanyl for postoperative analgesia after ambulatory surgical procedures. Anesth Analg 1997; 84:509–514 in AnesthesiaWeb, April 1997
10. Literature review: Valenzuela RC, Johnstone RE: Cost containment in anesthesiology: a survey of department activities. J Clin Anesth 1997; 9:91–92 in AnesthesiaWeb, April 1997
11. Literature review: Rotondi AJ, et al: Benchmarking the perioperative process. I. Patient routing systems: A method of patient flow and resource utilization. J Clin Anes 1997; 9:159–169 in AnesthesiaWeb, May 1997

Appendix Page 32 David Alan Lubarsky, M.D. Curriculum Vitae
12. Literature review: Woolhandler S, Himmelstein DU: Costs of care and administration at for-profit hospitals and other hospitals in the United States. N Engl J Med 1997;336:769– 774 in AnesthesiaWeb, May 1997
13. Literature review: Frank SM, et al: Perioperative maintenance of normothermia reduces the incidence of morbid cardiac events: a randomized clinical trial. JAMA 1997;277:1127–1134 in AnesthesiaWeb, June 1997
14. Literature review of a 3-article series: Part 1. Russell LB, et al: The role of costeffectiveness analysis in health and medicine. JAMA 1996; 276:1172–1177 Part 2. Weinstein MC, et al: Recommendations of the Panel on Cost-Effectiveness in Health and Medicine. JAMA 1996;276:1253–1258 Part 3. Siegel JE, et al: Recommendations for reporting cost-effectiveness analyses. JAMA 1996;276:1339–1341 all reviewed in AnesthesiaWeb, July 1997
15. Literature review: Kharasch ED, et al: Assessment of low-flow sevoflurane and isoflurane effects on renal function using sensitive markers of tubular toxicity. Anesthesiology 1997; 86:1238–1253 and accompanying editorial, Mazze RI, Jamison RL: Low-flow (1 l/min sevoflurane): is it safe? Anesthesiology 1997;86:1225–7 in AnesthesiaWeb, August 1997
16. Literature review: Bito H, et al: Effects of low-flow sevoflurane anesthesia on renal function: comparison with high-flow sevoflurane anesthesia and low-flow isoflurane anesthesia. Anesthesiology 1997; 86:1231–1237 in AnesthesiaWeb, August 1997
17. Literature review: Kearon C, Hirsh J: Management of anticoagulation before and after elective surgery. N Engl J Med 1997; 336:1506–1511 in AnesthesiaWeb, September 1997
18. Literature review: Rooke GA, et al: Hemodynamic response and change in organ blood volume during spinal anesthesia in elderly men with cardiac disease. Anesth Analg 1997;85:99–105 in AnesthesiaWeb, September 1997
19. Literature review: Ballantyne JC, Chang Y: The impact of choice of muscle relaxant on postoperative recovery time: A retrospective study. Anesth Analg 1997;85:476–82 in AnesthesiaWeb, October 1997
20. Literature review: Caldwell JE: The problem with long-acting muscle relaxants? They cost more! Anesth Analg 1997;85:473–475 in AnesthesiaWeb, October 1997
21. Literature review: Snaidach MS, Alberts MS: A comparison of the prophylactic antiemetic effect of ondansetron and droperidol on patients undergoing gynecologic laparoscopy. Anesth Analg 1997; 85:797–800 in AnesthesiaWeb, December, 1997
22. Literature review: Vogt AW, Henson LC: Unindicated preoperative testing: ASA physical status and financial implications. J Clin Anes 1997; 9:437–441 in AnesthesiaWeb, December, 1997

Appendix Page 33 David Alan Lubarsky, M.D. Curriculum Vitae
23. Literature review: Lee TH, Cooper HL: Translating good advice into better practice. (editorial) JAMA 1997;278:2108-2109 and Stiell IG, et al: Implementation of the Ottawa Knee Rule for the use of radiography in acute knee injuries. JAMA 1997;278:2075-2079 in AnesthesiaWeb, February, 1998
24. Literature review: Pierce ET, et al: Anesthesia type does not influence early graft patency or limb salvage rates of lower extremity arterial bypass. J Vasc Surg 1997;25:226-233 in AnesthesiaWeb, February, 1998
25. Literature review: Olsen MF et al: A randomized controlled trial of prophylactic chest physiotherapy in major abdominal surgery. Br J Surg 1997; 84:1535–1538 in AnesthesiaWeb, April, 1998
26. Literature review: Pollard JB, et al: Use of outpatient preoperative evaluation to decrease length of stay for vascular surgery. Anesth Analg 1997;85:1307–11 in AnesthesiaWeb, April, 1998
27. Literature review: Cher DJ, Lenert LA: Method of Medicare reimbursement and the rate of potentially ineffective care of critically ill patients. JAMA 1997;278:1001–1007 in AnesthesiaWeb, May, 1998
28. Literature review: O’Connor PG, Kosten TR: Rapid and ultrarapid detoxification techniques. JAMA 1998;279:229–234 in AnesthesiaWeb, May, 1998
29. Literature review: Badner NH, et al: Myocardial infarction after noncardiac surgery. Anesthesiology 1998;88:572–578 in AnesthesiaWeb, July, 1998
30. Literature review: Overdyk FJ, et al: Successful strategies for improving operating room efficiency at academic institutions. Anesth Analg 1998;86:896–906 in AnesthesiaWeb, July, 1998
31. Literature review: Leung JM, et al: Automated electrocardiograph ST segment trending monitors: Accuracy in detecting myocardial ischemia. Anesth Analg 1998; 87:4–10 in AnesthesiaWeb, August, 1998
32. Literature review: Swamidoss CP, et al: Health-care report cards and implications for anesthesia. Anesthesiology 1998; 88:809–819 in AnesthesiaWeb, August, 1998
33. Literature review: Fortney JT, et al: A comparison of the efficacy, safety, and patient satisfaction of ondansetron versus droperidol as antiemetics for elective outpatient surgical procedures. Anesth Analg 1998;86:731-8 in AnesthesiaWeb, September, 1998
34. Literature review: Vitez TS and Macario A: Setting performance standards for an anesthesia department. J Clin Anesth 1998;10:166–75 in AnesthesiaWeb, February, 1999
35. Literature review: Fleisher LA and Barash PG: Percutaneous transluminal coronary angioplasty before noncardiac surgery: current state of the debate. (editorial) J Cardiothorac Vasc Anesth 1998;12:499–500 in AnesthesiaWeb, February, 1999

Appendix Page 34 David Alan Lubarsky, M.D. Curriculum Vitae
36. Literature review: Bennett-Guerrero E, et al. The use of postoperative morbidity survey to evaluate patients with prolonged hospitalization after routine, moderate-risk, elective surgery. Anesth Analg 1999;89:514–519 in AnesthesiaWeb, October, 1999
37. Literature review: Posner KL, Freund PR: Trends in quality of anesthesia care associated with changing staffing patterns, productivity, and concurrency of case supervision in a teaching hospital. Anesthesiology 1999; 91:839-47 in AnesthesiaWeb, January, 2000
38. Literature review: Prielipp RC, et al: Ulnar nerve pressure: influence of arm position and relationship to somatosensory evoked potentials. Anesthesiology 1999; 91:345-54 with editorial Caplan RA: Will we ever understand perioperative neuropathy? A fresh approach offers hope and insight. Anesthesiology 1999; 91:335-6 in AnesthesiaWeb, January 2000
39. Literature review: Ramsey SD, Saint S, Sullivan SD et al: Clinical and economic effects of pulmonary artery catheterization in nonemergent coronary artery bypass graft surgery. J Cardiothorac Vasc Anesth 14(2) April 2000 113-118, in AnesthesiaWeb, June 2000
40. Literature review: Johnstone RE, Hosaflook C: Financial impact if payers use Medicare rates. Anesthesiology 2000; 93:852-7 in AnesthesiaWeb, October 2000
41. Literature review: Tobias JD: Fenoldopam: Applications in anesthesiology, perioperative medicine, and critical care medicine. Am J Anesthesiology 2000; 27(7):395-401 in AnesthesiaWeb, December 2000

Appendix Page 35 David Alan Lubarsky, M.D. Curriculum Vitae

APPENDIX B EDITORIALS ACCOMPANYING ARTICLES: (Numbers refer to the article listed on Lubarsky’s CV)

15 & 16.

Shapiro BA: Why must the practice of anesthesiology change? It’s economics,

Doctor! Anesthesiology 86:1020-1022, 1997 and

Fisher DM, Macario A: Economics of anesthesia care. A call to arms! Anesthesiology

86:1018-1019, 1997

20. Miller RD, Rampil L, Cohen N: Fewer residents: financial, educational, and practical implications. Anesth Analg 87:242-244, 1998

23. Mazzei WJ: Maximizing operating room utilization: a landmark study. Anesth Analg 89:1-2, 1999

26. Chestnut DH: How do we measure (the cost of) pain relief? Anesthesiology 92:643-645, 2000

27. Watcha MF: The cost-effective management of postoperative nausea and vomiting. Anesthesiology 92:931-3, 2000

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR, )

)

Plaintiff, and

)

)

RICHARD D. CLAY,

)

)

Plaintiff‐Intervenor,

)

)

v.

)

)

LARRY CRAWFORD,

)

Director,

)

Department of Corrections; )

)

JAMES D. PURKETT,

)

Superintendent,

)

Eastern Reception Diagnostic )

Correctional Center; and

)

)

JOHN DOES 1‐666,

)

Anonymous Executioners, )

)

Defendants.

)

No. 05‐4173‐CV‐C‐SOW JURY TRIAL DEMANDED

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
COME NOW the plaintiffs, Michael Anthony Taylor, by and through

appointed counsel, John William Simon, and Richard D. Clay, by and

through his appointed counsel, Elizabeth Unger Carlyle and Jennifer

Herndon, and—no answer or other responsive pleading having been filed—as authorized by 42 U.S.C. § 1983, pray the Court for its declaratory judgment holding that the existing procedure for lethal injection that the State of Missouri and its officials, officers, and employees, acting under color of state law, use in executions violates the Eighth, Thirteenth, and Fourteenth Amendments, because it would inflict on him cruel and unusual punishment, which would thereby deprive him of life, liberty, or property without due process of law, and would inflict on him a badge of slavery, in that the defendants’ selection of a three‐chemical sequence using a surgical procedure performed by a surgeon to obtain access to the femoral artery—itself unnecessary to bring about the statutory goal of his death—as a means of applying their chosen method of execution (lethal injection) creates a foreseeable risk of the infliction of gratuitous pain, i.e., a specific form of an otherwise lawful method of execution which is more painful than necessary to accomplish the statutory purpose of bringing about the “mere extinguishment of life,”1 and violates ethical rules which depend on state enforcement for the protection of consumers of medical services including but not limited to these plaintiffs.
1In re Kemmler, 136 U.S. 436, 447 (1890).
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Plaintiffs do not in this action dispute whether the State of Missouri can kill them, but rather demonstrate that the way its agents have chosen to do so is unconstitutional. Plaintiffs pray the Court for its preliminary injunction to prevent the defendants from executing them at all, however, until they have had an opportunity to present their case after discovery and in open court and to receive an adjudication on the merits, and thereafter for its permanent injunction to prevent the defendants from using this form and method of lethal injection on the plaintiffs; for its order granting the plaintiffs reasonable attorneys’ fees and costs; and for such other relief as the Court finds appropriate.
I. Summary As set forth in detail in the declarations of anesthesiology professors Mark J.S. Heath, M.D. (Exhibit 1), and David A. Lubarsky, M.D. (Exhibit 2) which were filed with the original complaint, the use of a specific succession of chemicals in judicial executions by lethal injection—which the defendants or their predecessors in office have admitted they use—creates a foreseeable risk of the gratuitous infliction of pain and suffering, in that the first of the three chemicals is used by health‐care professionals specifically because it wears off when the patient experiences stimuli which
‐ 3 ‐

produce pain; the second chemical paralyzes the prisoner such that he cannot breathe and he suffers from suffocation, but the prisoner cannot cry out or even flinch, because of the paralysis; the third chemical burns as it works its way through his veins to the heart, killing him with a heart attack—which to a conscious person is painful. The co‐authors of a peer‐ reviewed study published April 16, 2005, in the world‐renowned medical journal THE LANCET found that in 43% of the executions for which four states provided information, the levels of anesthesia were inadequate to render the prisoner unconscious at the time of his death; and those executions were in jurisdictions which (unlike Missouri) were careful enough to keep records and confident of the humanness of their several practices to share these data with the co‐authors. None of the three chemicals are required by Missouri statute; neither any one of them nor the combination of them is necessary to bring about the death of the plaintiffs. Defendants could bring about the death of a prisoner by the administration of a single, lethal dose of a single anesthetic, pentobarbital, as their veterinarians would do if they had a pet which they decided to have euthanized. Discovery in this case has to date disclosed that the defendants use a board‐certified surgeon to prepare the chemicals for
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injection into the prisoner’s body for the purpose of killing the prisoner, and that they also use the same board‐certified surgeon to catheterize the femoral vein to achieve central vein access for the purpose not of healing but of injecting the chemicals for the purpose of killing the prisoner. The Eighth Amendment forbids the gratuitous infliction of pain and suffering, and the Fourteenth Amendment applies this guaranty against the states. The Thirteenth Amendment abolishes slavery, of which not only the contemporary infliction of the death penalty but more specifically the use of a form of execution more painful than necessary to bring about the death of the prisoner is a relic, a vestige, and a badge. In addition, the Fourteenth Amendment protects individuals from governmental conduct which is oppressive or shocks the conscience. Plaintiffs are entitled to the relief they seek.
II. Statement of Exhibits Exhibits 1‐18 are the same as those submitted with the original complaint, and are not resubmitted with this first amended complaint. The following Exhibits 19‐22 are tendered with this amended complaint. 1. Declaration of Mark J.S. Heath, M.D. with curriculum vitae attached as “Heath Exhibit 1”
‐ 5 ‐

2. Declaration of David A. Lubarsky, M.B.A., M.D., with curriculum vitae and LANCET article attached as “Lubarsky Exhibits” 1 & 2 respectively
3. Johnston v. Kempker, No. 4:04‐CV‐1975‐DJS, Defendant Gary Kempker’s Answers and Objections to Plaintiff’s First Set of Interrogatories (E.D. Mo. Dec. 22, 2004)
4. Johnston v. Kempker, No. 4:04‐CV‐1975‐DJS, Defendants’ Memorandum of Law in Support of Motion to Dismiss (E.D. Mo. Nov. 15, 2004)
5. Johnston v. Kempker, No. 4:04‐CV‐1975‐DJS, Exhibit 1 to Plaintiff’s Response to Defendants’ Motion to Dismiss (E.D. Mo. Dec. 6, 2004)
6. Johnston v. Kempker, No. 4:04‐CV‐1975‐DJS, Defendant’s Reply to Plaintiff’s Response to Motion to Dismiss (E.D. Mo. Dec. 20, 2004)
7. Jones v. Crawford, No. 4:05‐CV‐653‐RWS, Transcript of Temporary Restaining Order Hearing (E.D. Mo. April 25, 2005)
8. Informal Resolution Request with Cover Affidavit by Vernon Brown, executed May 6, 2005
‐ 6 ‐

9. Affidavit of Stanley D. Payne with Informal Resolution Request and equivocal unsigned statement by staff attached
10. Declaration of Michael Lenza, Ph.D., with curriculum vitae (Exhibit 1)
11. M. LENZA, POLITICS OF DEATH: A STATISTICAL, THEORETICAL, AND HISTORICAL EXAMINATION OF THE DEATH PENALTY IN MISSOURI, University of Missouri–Columbia, 2005 (hitherto unpublished Ph.D. dissertation)
12. John F. Galliher, et al., REPORT TO THE OFFICE OF THE MISSOURI PUBLIC DEFENDER ON PROPORTIONALITY OF SENTENCING IN DEATH‐ELIGIBLE CASES, filed by Missouri State Public Defender System in, inter alia, State v. Parker2
13. M. Lenza et al., THE PREVAILING INJUSTICES IN THE APPLICATION OF THE DEATH PENALTY IN MISSOURI (1978‐1996) (2002), available May 18,
2886 S.W.2d 908 (Mo. 1994) (en banc), cert. denied, 514 U.S. 1098 (1995), citing In re Estate of Danforth, 705 S.W.2d 609, 610 (Mo. Ct. App., S.D. 1986) (providing for judicial notice of the record resulting in an opinion to determine grounds on which opinion is based). A published work coming after the original Galliher study but before the Lenza et al. study is J.R. SORENSEN AND D.H. WALLACE, Capital Punishment in Missouri: Examining the Issue of Racial Disparity, 13 BEHAVIORAL SCIENCES AND THE LAW 61, 75 (1995).
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2004, at http://www.umsl.edu/divisions/artscience/forlanglit/mbp/Lenza1.html
14. Denise Lieberman, Legal Director, American Civil Liberties Union of Eastern Missouri, PROSECUTORS: THE FIRST LINE OF OFFENSE— PROSECUTORIAL DISCRETION AND ARBITRARINESS IN ADMINISTRATION OF THE DEATH PENALTY, http://www.umsl.edu/~phillips/dp/ACLUDenise.html (2001)
15. J. SOSS ET AL., Why Do White Americans Support the Death Penalty? 65 J. OF POLITICS 397, 409 (2003), http://www.polisci.wisc.edu/~soss/Research/Articles/JOP_2003.pdf
16. Affidavit of Michael Anthony Taylor executed May 27, 2005, with Informal Resolution Request attached
17. Missouri Department of Corrections, Department Manual, D5‐ 3.2, Offender Grievance
18. Brown v. Crawford, No. 4:05‐CV‐746, Transcript of Hearing on Motion for Temporary Restraining Order (E.D. Mo. May 13, 2005)
19. Defendant Crawford’s Answers to Plaintiffs’ First Interrogatories (partial, of course)
20. Curriculum vitae of Dr. Jonathan I. Groner
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21. Johnston v. Kempker, No. 4:04‐CV‐1075‐CAS, “Transcript of Temporary Restraining Order [sic],” U.S. District Court, Eastern District of Missouri (August 26, 2005)
22. AMA Code of Medical Ethics E‐2.06
III. Parties 1. Plaintiff, Michael Anthony Taylor, CP‐89, is a citizen of the United States and a resident of the State of Missouri. 2. Plaintiff Taylor is a person within the jurisdiction of the State of Missouri. 3. Plaintiff Taylor was sentenced to death in the Circuit Court of Jackson County (the Hon. Alvin G. Randall, Circuit Judge; on remand, the late Hon. Michael Coburn) for the kidnapping, rape, and murder of a minor child, A.H., while acting together with Roderick Nunley. 4. Plaintiff Taylor is attacking the conviction and sentence of the Circuit Court of Jackson County by a pending certiorari petition, No. 05‐ 6135, seeking the review of the Supreme Court of the United States of the denial of his motion to recall the mandate of the Missouri Supreme Court in its Docket No. 85235, but not in this complaint.
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5. Plaintiff Taylor is also attacking the same conviction and sentence in a state habeas corpus petition now pending before the Missouri Supreme Court in its Docket No. 87054, but not in this complaint.
6. Plaintiff Richard D. Clay, CP 120, is a citizen of the United States and a resident of the State of Missouri.
7. Mr. Clay is a person within the jurisdiction of the State of Missouri.
8. Mr. Clay was convicted upon his plea of not guilty of first degree murder in Callaway County, Missouri, Case No. CR594‐4F and sentenced to death on September 12, 1995, for the murder of Randy Martindale. He was tried before a jury.
9. Mr. Clay has no pending actions involving this conviction and sentence in any court.
10. Plaintiffs are incarcerated at the Potosi Correctional Center, 11593 State Highway O, Mineral Point, Washington County, Missouri 63660.
11. The State of Missouri conducts its executions at the Eastern Missouri Reception, Diagnostic & Correctional Center, 2727 Highway K, Bonne Terre, St. Francois County, Missouri 63628.
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12. Defendant Larry Crawford is Director of the Department of
Corrections of the State of Missouri.
13. Defendant Crawford is specifically authorized and directed by
state statute to prescribe and direct the means by which the Department of
Corrections carries out executions within the statutorily specified methods
of lethal gas or lethal injection.3 Plaintiffs do not in this complaint contend
that lethal injection is per se unconstitutional.
14. Defendant Crawford is sued in his individual and official
capacity for the purpose of obtaining prospective declaratory and
injunctive relief.
15. At all times and in all respects referred to in this complaint,
defendant Crawford acted and will act under color of state law.
16. Defendant Crawford’s office is at 2729 Plaza Drive, Jefferson
City, Cole County, Missouri 65109.
3Mo. Rev. Stat. § 546.720: “The manner of inflicting the punishment of death shall be by the administration of lethal gas or by means of the administration of lethal injection. And for such purpose the director of the department of corrections is hereby authorized and directed to provide a suitable and efficient room or place, enclosed from public view, within the walls of a correctional facility of the department of corrections, and the necessary appliances for carrying into execution the death penalty by means of the administration of lethal gas or by means of the administration of lethal injection.”
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17. Defendant Crawford is a resident of the Central Division of the Western Federal Judicial District of Missouri.
18. Defendant James D. Purkett is Superintendent of the Eastern Reception, Diagnostic & Correctional Center (ERDCC), in Bonne Terre, St. Francois County, Missouri.
19. Defendant Purkett is “warden” or chief executive officer of ERDCC, and is therefore charged with the management of ERDCC.
20. Defendant Purkett’s principal place of business is the Eastern Reception, Diagnostic & Correctional Center (ERDCC), 2727 Highway K, Bonne Terre, St. Francois County, Missouri 63628.
21. Defendant Purkett is a resident of the Eastern District of Missouri.
22. ERDCC is where the State of Missouri began conducting its executions on April 27, 2005.
23. By virtue of his authority over the staff of ERDCC, defendant Purkett is responsible for the way in which executions are conducted in Missouri.
24. Defendant Purkett is sued in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief.
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25. At all times and in all respects referred to in this complaint, defendant Purkett acted and will act under color of law.
26. Defendants John Does 1‐666 are officials, officers, employees, agents, and servants of the State of Missouri who, by virtue of their employment or other status (including independent contractors and volunteers under the supervision of the defendants and their designees), participate in the planning of, purchasing and preparation for, carrying out of, and covering up of details about executions in the State of Missouri.
27. Plaintiffs cannot provide the Court the natural names of these individuals because the State of Missouri and its officials, officers, and employees have thus far kept them secret.
28. John Does 1‐666 are sued in their individual and official capacities for the purpose of obtaining declaratory and injunctive relief.
29. Defendants Does 1‐666 reside in the Eastern and Western Districts of Missouri.
30. At all times and in all respects referred to in this complaint, defendants Does 1‐666 acted and will act under color of law.
31. Each and all of the foregoing defendants Crawford, Purkett, and Does 1‐666 at all times relevant to this complaint were acting in their
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official capacities with respect to all acts and omissions described in this complaint, and were in each instance acting under color of state law.
32. Unless permanently enjoined against doing so, the defendants and each of them intend to act in their respective official capacities and under color of state law to execute the plaintiffs by lethal injection in the manner set forth in this complaint.
IV. Jurisdiction 33. Plaintiffs bring this action to enforce and protect their rights under the Eighth Amendment to the United States Constitution, as applied against the states by the Fourteenth Amendment, and also to enforce and protect their rights under the Thirteenth Amendment. 34. This Court has jurisdiction over this cause under 28 U.S.C. § 1331, in that it arises under the Constitution of the United States; under 28 U.S.C. § 1343(a)(3), in that it is brought to redress deprivations, under color of state law, of rights, privileges, and immunities secured by the United States Constitution; under 28 U.S.C. § 1343(a)(4), in that it seeks to secure equitable relief under an Act of Congress, i.e., 42 U.S.C. § 1983, which provides a cause of action for the protection of rights, privileges, or immunities secured by the Constitution and laws of the United States;
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under 28 U.S.C. § 2201(a), in that one purpose of his action is to secure declaratory relief; and under 28 U.S.C. § 2202, in that one purpose of his action is to secure permanent injunctive relief.
35.In addition to the foregoing, this Court has jurisdiction by virtue of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, or Punishment.
36.Article 1, ¶ 1 of the Convention defines “torture” as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” (Emphasis supplied.)
37.Article 2, ¶ 1, provides that “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”
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38.Article 1, ¶ 1 adds that torture “does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Because the plaintiffs invoke the treaty as providing a remedial structure rather than as a source of substantive law, it would be begging the question or beside the point for the defendants to argue that the pain from their specific method of lethal injection is part of a “lawful” sanction. The Eighth Amendment controls on the question whether such an execution is lawful.
39.Consequently, because this Court’s jurisdiction does not depend on a federal statute, 42 U.S.C. § 1997e would not bar relief even if the selection of a garrote rather than lethal injection were a “prison condition.”
V. Venue 40. Venue is proper in this federal judicial district under 28 U.S.C. § 1391(b)(1)‐(3) in that (1) defendant Crawford resides in its territorial jurisdiction; (2) defendant Crawford’s decisions regarding the specific means of using lethal injection are made in its territorial jurisdiction, and (3) defendant Crawford may be found in its territorial jurisdiction.
VI. Facts 41. Plaintiffs restate and reallege the contents of each preceding paragraph as if fully set forth again.
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Facts Specifically Bearing on Count I 42. Defendants intend to execute the plaintiffs by lethal injection using a succession of three chemicals: sodium pentothal, pancuronium bromide, and potassium chloride. 43. As set forth in greater detail in the declarations of anesthesiologists, Mark J.S. Heath, M.D. (Exhibit 1), and David A. Lubarsky, M.D. (Exhibit 2), the use of this succession of chemicals in judicial executions by lethal injection creates a foreseeable risk of the gratuitous infliction of pain and suffering. The use of this succession of chemicals, or of any one or more of them, is absolutely unnecessary to bring about the death of the plaintiffs. (E.g., Exhibit 1, ¶¶ 25, 36, 41 & 45.) 44. Specifically, sodium pentothal, also known as thiopental, is a ultra‐short acting substance which produces shallow anesthesia. Health‐ care professionals use it as an initial anesthetic in preparation for surgery while they set up a breathing tube in the patient and use different drugs to bring to patient to a “surgical plane” of anesthesia that will last through the operation and will block the stimuli of surgery which would otherwise cause pain. Sodium pentothal is intended to be defeasible by stimuli associated with errors in setting up the breathing tube and initiating the
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long‐run, deep anesthesia; the patient is supposed to be able to wake up and signal the staff that something is wrong. (Exhibit 1 ¶¶ 20‐22.)
45. Sodium pentothal is unstable in liquid form. To be effective as an anesthetic, it must be mixed up and administered by a person with the qualifications of a licensed health‐care professional. Licensed health‐care professionals cannot by law and professional ethics participate in executions. (Exhibit 1, ¶ 26.)
46. The sodium penthothal which the defendants administer to condemned persons in Missouri either has not been prepared and administered by one who is qualified under Missouri law to do so in the therapeutic environment or has not been prepared and administered by a health‐care professional who respects the ethical norms of his or her profession and perceives the loss of his or her license as an incentive to confirm his or her conduct to its standards. This fact increases the risk—if not guarantees the result—that the sodium pentothal will not have the intended anesthetic effect on the condemned person.
47. The second chemical the defendants use in lethal injections is pancuronium bromide, sometimes referred to simply as pancuronium. It is not an anesthetic. It is a paralytic agent, which prevents any of the
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voluntary muscles of the body from moving, including those which control breathing, and effectively stops the lungs from functioning. It has two contradictory effects: first, it causes the person to whom it is applied to suffer suffocation when the lungs stop moving; second, it prevents the person from manifesting this suffering, or any other sensation, by facial expression, hand movement, or speech. (Exhibit 1, ¶¶ 27‐30.)
48. When sodium pentothal is exposed to pancuronium bromide, it precipitates, i.e., returns to the solid condition it was in before the executioner of unknown qualifications or lack thereof mixed it up in preparation for the execution. Once it returns to its solid condition, the sodium pentothal is no longer active as an anesthetic. Any one of a number of mistakes—the type of mistakes that one would expect to occur when sodium pentothal is prepared and administered by a non‐licensed person or one who scoffs at the norms of his or her profession and is given license to do so by the defendants’ protection of his or her anonymity—or simply bad luck, can cause this abatement of the anesthetic effect toward the beginning of the lethal injection. In the absence of the assurance that the executioners have the same skills as anesthesiologists, nurse‐ anesthetists, or even veterinarians or their staff, the likelihood is substantial
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that this will happens in any given execution by lethal injection performed in the State of Missouri.
49. Pancuronium bromide is unnecessary to bring about the death of a person being executed by lethal injection. It has the unconscionable effect of creating the possibility that the sodium pentothal will become ineffective when the prisoner begins to suffer suffocation from the pancuronium bromide. Its only relevant function is to prevent the media and the conscientious staff from knowing when the sodium pentothal has worn off and the prisoner is suffering from suffocation or from the administration of the third chemical. (Exhibit 1, ¶ 41.)
50. That third chemical is potassium chloride, which is the substance that causes the death of the prisoner. It burns intensely as it goes through the veins toward the heart. Because the veins are running back to the heart after the arteries have carried it to the extremities, the blood runs more slowly than it does in the arteries. This prolongs the pain the prisoner suffers when the sodium pentothal wears off, as it is selected by surgical anesthetists because it does. (Exhibit 1, ¶¶ 43‐44.)
51. When the potassium chloride reaches the heart, it causes a heart attack. If the sodium pentothal has worn off by the time the potassium
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chloride reaches the heart (as it foreseeably would, given the shallow nature of the anesthesia sodium pentothal is supposed to produce, from the potassium chloride burning its way through the veins), the prisoner feels the pain of a heart attack, but no one but the prisoner can tell, because the pancuronium bromide has paralyzed his face, his arms, and his entire body so that he cannot express himself either verbally or otherwise. (Exhibit 1, ¶¶ 43‐46.)
52. Veterinarians would not use any of these three chemicals in euthanizing animals, because the veterinary profession knows that the first is short‐acting and that the second and third are cruel means of bringing about the death of a sentient being; for these reasons it would be illegal to use either of the latter two chemicals in euthanizing a pet. (Exhibit 1, ¶¶ 25, 37‐40 & 47‐50.) They cause pain and suffering far in excess of what is necessary to bring about the mere extinguishment of life.
53. Veterinarians are forbidden to use these chemicals even though they may personally participate in euthanasia and may also recruit and retain the most qualified available personnel to assist them. By contrast, physicians are forbidden by the Hippocratic Oath and by positive law from participating in executions. (Exhibit 1, ¶¶ 55‐58.)
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54. A veterinarian would use a lethal dose of pentobarbital, a long‐ acting anesthetic, to perform euthanasia consistently with professional regulations, positive law, and the values of humaneness which the latter norms reflect. This substance is an alternative to the three‐chemical formula the defendants use on other people. Although neither plaintiff is advocating his own death, they point out pentobarbital as a specific alternative to the three‐chemical sequence, with the amount, concentration, and timing, and the qualifications of staff performing and monitoring the execution, to be determined in the course of discovery.
55. On April 16, 2005—the day after the Missouri Supreme Court set the execution date in the Vernon Brown case—Dr. David A. Lubarsky and three co‐authors published in the world‐renowned medical journal THE LANCET the results of their research on the effects of these chemicals in lethal injections in the few states which bothered to conduct autopsies and prepare toxicology reports, and which did not refuse to produce these data for these scholars.
56. This publication is Exhibit 2 to Exhibit 2, the declaration of Dr. Lubarsky.
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57. The LANCET team found that in 43% of the lethal injections they studied, the prisoner had an inadequate amount of sodium pentothal in his bloodstream to provide anesthesia. (Exhibit 2, ¶ 16.) In other words, in close to half of the cases, the prisoner felt the suffering of suffocation from pancuronium bromide, and the burning through the veins followed by the heart attack caused by the potassium chloride.
58. In their answers to Plaintiffs’ interrogatories, the defendants have admitted that these three chemicals are used in Missouri executions. Defendants have refused to disclose the training or lack thereof which the actual executioners have had. Only blind faith would lead this Court to find that the personnel they have been able to recruit to participate in this activity have the skills of licensed medical and veterinary professionals which would be necessary to administer the chemicals in a minimally competent manner. (Exhibit 1, ¶¶ 55‐58; Exhibit 2, ¶¶ 19.f & 21.)
59. Although a Missouri statute specifies that death sentences will be carried out by lethal gas or lethal injection, it does not prescribe any given chemical to be used in either process, but leaves these decisions up to defendant Crawford.4
4Mo. Rev. Stat. § 546.720.
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60. Although the defendants have provided partial responses to discovery indicating that they use a larger initial injection of sodium pentothal than the typical lethal‐injection jurisdiction uses, they have failed to meet the problem of neutralization through precipitation by their subsequent use of pancuronium bromide, and they have failed to address the original complaint’s quality‐assurance concerns in that they have refused to identify the participants with sufficient particularity that counsel can assess their actual qualifications. All we know is that the physician and the nurse who participate in these executions are outlaws within their respective professions.
Facts Specifically Bearing on Count II 61. In an attempt to meet the foregoing analysis as presented by the plaintiffs in Johnston v. Kempker, No. 4:04‐CV‐1975‐DJS (E.D. Mo.) and in this case, the defendants have averred, in pleadings in the Johnston case and in partial response to the first set of interrogatories in this case, that their specific method of lethal injection is not subject to the critiques of Drs. Heath and Lubarsky because they use a large initial dose of sodium pentothal delivered through a central line catheter. See Defendant Crawford’s Answers to Plaintiffs’ First Interrogatories (which are
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submitted with this amended complaint and marked “Exhibit 19), at 8‐9. In making these averments, the defendants, while trying to jump out of the frying pan, have landed in the fire.
62. Dr. Jonathan I. Groner, Clinical Associate Professor of Surgery at Ohio State University College of Medicine & Public Health, will testify to all or substantially all of the averments of fact in support of this count. (Curriculum vitae submitted as “Exhibit 20.”)
63. The procedure the defendants rely on for extra‐efficient access to the condemned man’s bloodstream is unnecessarily invasive, painful, and time‐consuming, and hence creates the certainty of gratuitous pain and suffering beyond the “mere extinguishment of life.”
64. The femoral vein lies in close proximity to the femoral artery and femoral nerve. The technique for inserting the catheter involves inserting a large needle directed to an anatomic landmark in order to puncture the vein. Once the vein is punctured, a wire is passed into the vein, then a scalpel is used to make a small incision where the guidewire enters the skin, then the catheter is passed over the guidewire and into the vein. Because the catheter has three separate channels, it is quite a bit larger than a standard peripheral IV. It is also usually 15 cm. longer. In
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ethical medical practice, local anesthesia is normally used in the skin at the puncture site. Puncture of the artery is exceptionally painful because a large hematoma often will develop after the needle is removed and redirected toward the vein. Puncture of the femoral nerve is excruciatingly painful. The same holds true if the needle passes through the vein and strikes the bones in the pelvis which lie below the vein.
65. Doctors who are qualified in the placement of central lines are in general surgeons, critical care specialists, interventional cardiologists, interventional radiologists, and some emergency medicine physicians. Most doctors in standard office practice, and probably many surgeons, would not know who to do this procedure because the procedure is usually performed by specialists.
66. Complications of femoral venous central lines include (a) severe pain; (b) hemorrhaging and/or hematoma at the catheter site; (c) unrecognized arterial catheter placement, which would make the lethal injection process exceedingly painful (because the drugs would flow down the leg instead of into the heart and brain); (d) catheter tip malposition, in which case the catheter tip lies outside the vein, causing the lethal injection drugs to be absorbed slowly, which would produce a slow, tortuous death;
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(e) air embolism, which when the catheter allows introduction of air into the vein causing sudden death from air embolism; (f) hemorrhage into the abdomen; and (g) femoral arterial occlusion, which causes severe leg pain due lo the absence of blood flow to the affected leg; and (h) perforation of the heart by the metal guidewire used in the catheter insertion procedure. All of the foregoing negative consequences of this procedure are known risks associated with it assuming it is performed by medical professionals with the baseline credentials required to do it rather than hypotheticals outside the scope of clinical experience.
67. Insertion of the standard peripheral IV is the preferred procedure for access to a vein unless (a) the patient has absolutely no visible veins; (b) the patient is in shock and the peripheral veins are collapsed or inaccessible; or (c) the patient needs venous pressure monitoring during an operation.
68. Femoral line insertions are dangerous and, at best, uncomfortable procedures which are performed in awake, unsedated patients only in dire situations and in a rare case where there are absolutely no veins for the standard peripheral IV. A femoral line is just one type of central line. Others include subclavian and internal jugular lines.
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69. It is standard medical procedure to obtain a radiograph (x‐ray) after catheter insertion to confirm that the catheter is in the appropriate position. Failure to do so can result in catheter malfunction.
70. Use of a femoral central line therefore creates a substantial risk of inflicting severe and unnecessary pain and suffering during the lethal injection process.
71. Defendant Crawford’s partial responses to the first set of interrogatories also say that the state uses a “triple lumen central venous catheter.” (Exhibit 19 at 7, 9, 17 & 20.)
72. Triple lumen central venous catheters are highly sophisticated medical devices. They should only be inserted by practitioners who have a strong understanding; of the anatomy of arteries, veins, and their appropriate landmarks. Furthermore, the practitioner must be able to recognize and initiate treatment of life and limb‐threatening complications including puncture of the heart, arterial puncture, nerve damage, hematoma, and air embolism. Insertion of these catheters is associated with a known, foreseeable likelihood of extreme pain, even assuming the procedure is performed by medical professionals with the baseline credentials required to do it. Ethical physicians do not use triple lumen
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femoral catheters are not used for administration of intravenous anesthetic agents when peripheral IV sites are available.
73. Whereas the kit one uses for a peripheral IV contains three pieces, the kit surgeons use when they perform a central line procedure consists of about 15‐20 pieces, including a “dilator” that goes over the guidewire to stretch out the tissues and thereby clear a path through the personʹs body for the actual catheter. The dilator looks like a small harpoon.
74. This procedure is not medically indicated and essentially amounts to an unnecessary surgery performed on the prisoner without his consent.
75. This procedure involves the use of a surgeon, implicating the medical profession in executions in violation of medical norms from the Hippocratic Oath to the present.
76. Like the use of pancuronium bromide, the foregoing procedure is performed not because it is necessary to bring about the “mere extinguishment of life” but as part of the defendants’ esthetic‐political agenda for prolonging the death penalty after the remainder of the countries with which the United States enjoys being compared have
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abolished it, by putting a veneer medical practice and technology on the opposite of medicine—the deliberate killing of a defenseless human being.
Facts Specifically Bearing on Count III 77. According to the expert on the other side of the litigation involving lethal injections, Mark Dershwitz, M.D., PH.D.—in testimony which the defendants’ counsel adduced in open court at the evidentiary hearing in the Johnston case—and according to defendant Crawford’s partial responses to the first set of interrogatories in this case, the defendants use a “board certified surgeon” to mix the chemicals intended to kill the condemned man, to perform the procedure to achieve central line access through the femoral vein, to monitor the condemned man’s heart activity as reflected on their EKG, and to prescribe more “deadly drugs” if the first batch does not do the trick. (Exhibit 21 at 25 (board certified surgeon), 26 (mixing chemicals) & 27‐33; Exhibit 19 at 32‐33.) 78. The State of Missouri undertakes to regulate the practice of medicine. See, e.g., Mo. Rev. Stat. §§ 334.010, .020, .040 & .100. 79. This regulation has the purpose “to safeguard the public health and welfare”5 of Missouri residents (such as the plaintiffs in this action)
5Boyd v. State Board of Registration for Healing Arts, 916 S.W.2d 311, 317 ‐ 30 ‐

from physicians’ misuse of their special knowledge and their time‐honored
position of trust.
80. The state’s structure for the regulation of physicians
incorporates medical ethics. Mo. Rev. Stat. § 334.100 authorizes the Board
of Registration for the Healing Arts to discipline a physician (by revoking
their license or other sanctions) for “unethical conduct or unprofessional
conduct.”6 Although the statute provides examples of such conduct, the
Board’s authority to discipline is not limited to these examples.7
81. Medical ethics forbids physician participation in executions.
The Hippocratic Oath of about 400 B.C. specifically binds the physician not
to give any deadly drug: “I will not give a drug that is deadly to anyone if
asked . . . nor will I suggest the way to such a counsel.”8 The AMA Code of
Medical Ethics E‐2.06 allows physicians to prescribe palliative medications
(Mo. Ct. App. E.D. 1995).
6Mo. Rev. Stat. § 334.100.2(4). 7E.g., Hughes v. State Board of Health, 348 Mo. 1236, 159 S.W.2d 277, 278 (1942), citing State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943, 950 (1933).
8Translation by Heinrich Von Staden in “In a pure and holy way:” Personal and Professional Conduct in the Hippocratic Oath, JOURNAL OF THE HISTORY OF MEDICINE AND ALLIED SCIENCES 406-408 (1996), available Sept. 11, 2005, at http://www.indiana.edu/~ancmed/oath.htm (downloaded Sept. 11, 2005, and available in PDF from John William Simon).
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for a prisoner who is suffering distress in advance of an execution and to
certify that an executed prisoner is dead after another person has
pronounced him dead, but expressly forbids several of the acts which the
“board certified surgeon” whom the defendants use to carry out their
executions performs. See Exhibit 22.9
82. In Wilkins v. Bowersox, 933 F.Supp. 1496 (W.D. Mo. 1996), aff’d,
145 F.3d 1006 (8th Cir. 1998), cert. denied, 512 U.S. 1094 (1999), this Court
explained that there are situations in which a state creates a protection for
its citizens and may not arbitrarily withdraw that protection consistently
with the United States Constitution:
In Hicks v. Oklahoma, 447 U.S. 343, 346 . . . (1980), the Supreme Court held that a state creates a liberty interest when it provides a criminal defendant with a “substantial and legitimate expectation” of certain procedural protections. “[A]n arbitrary deprivation of such entitlement may create an independent federal constitutional violation”. Toney v. Gammon, 79 F.3d 693, 699 (8th Cir.1996) quoting Hicks, 447 U.S. at 346 . . . . The whole purpose of the Due
9AMA Code of Medical Ethics, E‐2.06 Capital Punishment, available September 10, 2005, at http://www.ama‐ assn.org/apps/pf_new/pf_online?f_n=browse&doc=policyfiles/HnE/E‐ 2.06.HTM&&s_t=&st_p=&nth=1&prev_pol=policyfiles/HnE/E‐ 1.02.HTM&nxt_pol=policyfiles/HnE/E‐2.01.HTM&. PDF and hard copy available from John William Simon, J.D., Ph.D., 2683 South Big Bend Boulevard, Suite 12, St. Louis, Missouri 63143‐2100.
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Process Clause is to prevent arbitrary deprivations of liberty or property. Honda Motor Co. v. Oberg, 512 U.S. 415, ‐‐‐‐, 114 S.Ct. 2331, 2342 . . . (1994). [933 F.Supp. at 1525‐26. 83. Under the facts and circumstances of this case, the state’s own violation of a fundamental tenet of the regulatory system it has created for the protection of these plaintiffs and all other persons whom physicians treat within its jurisdiction violates the plaintiffs’ right to due process of law under the United States Constitution. 84. Plaintiffs have a substantial and legitimate expectation that a physician will not use his or her special skills and position of trust to kill rather than to treat. 85. Defendants’ use in the name of the state of the special skills and position of trust of a physician to kill rather than to treat violates due process as measured by the teachings of history and the basic values that underlie our society. 86. Defendants’ action in using a physician to perform acts which violate medical ethics is deliberate. 87. Defendants are arbitrarily withholding the protection of the state’s regulatory structure by employing or allowing a physician to perform a state function in violation of medical ethics, and by withholding
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his or her name to keep the state’s medical regulators from disciplining this physician (assuming he or she is licensed in Missouri).10
88. Employing—or accepting the volunteer/vigilante services of—a physician to perform acts forbidden by medical ethics, and concealing the name of that physician, increases the risk that he or she will not conform to the technical standards of medical practice when he or she has shown his or her contempt for the substantive standards of the profession, and when the state has rendered him or her immune from professional discipline because of his or her willingness to violate professional norms when he or she sees fit in order to kill.
89. By employing—or accepting the volunteer/vigilante services of—a physician to perform acts forbidden by medical ethics, when the state has itself undertaken a duty to enforce medical ethics, the defendants are abusing the power of government or employing it as an instrument of oppression. .
10If the physician is not licensed in Missouri, then the defendants’ use of his or her services is a crime committed in the name of punishing crime. See Mo. Rev. Stat. §§ 334.010 (unlicensed practice of medicine), 334.250.1 (violation of section 334.010 a class C felony) & 562.041.1 (criminal responsibility for acting with another).
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90. Under the facts and circumstances of this case, state actors’ use of a physician to kill a citizen of the United States shocks the conscience.
Facts Specifically Bearing on Count IV 91. Plaintiffs rely on certain facts set forth in the Ph.D. dissertation of Michael Lenza, and in his declaration submitted with the original complaint memorandum, which is incorporated herein and marked as “Exhibit 10”; his curriculum vitae is attached to, incorporated in his declaration, and marked as “Declaration Exhibit 1.” 92.Dr. Lenza’s Ph.D. dissertation is entitled POLITICS OF DEATH: A STATISTICAL, THEORETICAL, AND HISTORICAL EXAMINATION OF THE DEATH PENALTY IN MISSOURI, University of Missouri–Columbia (2005). It is attached hereto, incorporated herein, and marked as “Exhibit 11.” 93.Its central finding is that in the customs and practices of the State of Missouri, there is a strong historical association between the presence of black slavery, the incidence of lynching, and a disproportionate number of death sentences after Furman v. Georgia11 and Gregg v. Georgia.12 It bears not only on the absence of a lawful capital punishment régime—which is

11408 U.S. 238 (1972). 12428 U.S. 153 (1976).

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beyond the scope of this action—but also on the defendants’ selection of lethal‐injection chemicals and procedures that have an elevated likelihood of inflicting gratuitous pain, when they could use at least one (pentobarbital) which would—as they advertise their current practice, in contradiction to veterinary law and practice—be like putting a dog to sleep.
94.In the research for his dissertation, Dr. Lenza discovered that there is a strong historical association in fact within Missouri between counties that had the heaviest levels of black slavery until the Civil War, the incidence of lynching, and an elevated rate of death sentences after Furman v. Georgia and Gregg v. Georgia. (Exhibit 10.) In the judicial circuits falling into the slave and Southern cultural regions as Dr. Lenza defines them, a homicide case is 286% more likely to be prosecuted as a capital case and taken to trial as such than in the circuits he categories as urban. (Exhibit 11 at 232.) Such a case was 71% more likely to result in a death sentence. (Id. at 233.) Whether a case arose in the slave and Southern cultural regions was the most important variable in predicting death sentences even when compared such other reliable predictors to the color of the accused versus the color of the decedent, whether the accused was a stranger to the decedent, whether the homicide was performed with a knife (producing
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better gruesome photographs to inflame the jury), and whether the accused had prior convictions and was represented by a public defender (both of which are surrogates for lower socio‐economic status of the accused). (Id. at 233‐35.) These data are not samples, but the universe of cases; there is a 92% certainty that the associations Dr. Lenza found did not happen by chance fluctuation in the data. (Id. at 235.)
95.Just as 89% of executions occur in states which used to have slavery (Exhibit 11 at 3‐5), the practice of the death penalty in Missouri today is a reflection of the attitudes towards one’s fellow human beings which allowed slavery to exist and thrive until put down by force of arms.
96.An underlying explanatory principle is that slavery “vested white citizens with the power of the State to utilize extra‐legal violence to maintain the social order,” i.e., the supremacy of whites over African‐ Americans. (Exhibit 11 at viii.) Like all Ph.D. theses, this one finds that more research is called for, but also suggests that the results are consistent with the proposition that the death penalty is “an institutionalized social artifact of slavery, maintaining the racialized social order through violence, carried forth into our present by our social institutions.” (Exhibit 11 at 244.)
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97.One of the subsidiary themes of Dr. Lenza’s dissertation is that greater pain was imposed on slaves and their descendents who were executed—officially or unofficially—than on members of the master race who were executed: this frequently took the form of burning alive (Exhibit 11 at 7, 63, 82, 108, 160‐62 & 174‐76), for which potassium chloride is as close as the defendants can get away with in the court of public opinion. See Exhibit 10, ¶¶ 8‐11.
98.Plaintiffs do not here contend that the death penalty in Missouri is unlawful because despite the color‐neutral statutes, it discriminates against men of color and on other arbitrary or independently unlawful bases. Plaintiffd d, however, plead—as in an intermediate premise in their claim for relief under the Thirteenth Amendment—that the death penalty in Missouri falls disproportionately on African‐American residents. Plaintiffs plead this premise in the course of establishing that the specific method of lethal injection the defendants have chosen is a badge of slavery.
99.In support of the intermediate premise regarding disparate impact of the death penalty, the plaintiffs rely on four additional attachments, including one which was chiefly co‐authored by Dr. Lenza before he completed his dissertation. Because the plaintiffs donot advance this
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premise as a freestanding ground for relief, this Court need not consider whether McCleskey v. Kemp13 need be overruled.
100. In other death‐sentenced persons’ cases before the Missouri Supreme Court, the Missouri State Public Defender System presented a study by University of Missouri–Columbia Professor John F. Galliher of the reports from Missouri circuit judges that the Missouri Supreme Court itself collected as the statute on proportionality review mandated. The Missouri State Public Defender System filed this study with the Missouri Supreme Court in State v. Parker.14 Plaintiffs present it here as Exhibit 12. There is also available on the Internet a subsequent report based on later and more inclusive data prepared by Professor Galliher’s original co‐author, Professor David Keys, and others, headed by Dr. Michael Lenza.15 Plaintiffs present it as Exhibit 13.
13481 U.S. 279 (1987). 14886 S.W.2d 908 (Mo. 1994) (en banc), cert. denied, 514 U.S. 1098 (1995), citing In re Estate of Danforth, 705 S.W.2d 609, 610 (Mo. Ct. App., S.D. 1986) (providing for judicial notice of the record resulting in an opinion to determine grounds on which opinion is based). 15M. LENZA ET AL., THE PREVAILING INJUSTICES IN THE APPLICATION OF THE DEATH PENALTY IN MISSOURI (1978‐1996) (2002), available May 18, 2004, at http://www.umsl.edu/divisions/artscience/forlanglit/mbp/Lenza1.html. (Exhibit 13.)
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101. The original Galliher report was based entirely on the reports of Missouri trial judges in homicide cases that the Missouri Supreme Court gathered in response to Mo. Rev. Stat. § 565.035.6. The report showed that out of 439 death‐eligible cases during the period it covered, the prosecutors had waived the death penalty in 212, or 52%. (Exhibit 12 at 1.) The remainder of the report showed that aggravating and mitigating factors played virtually no role in determining whether a person actually got the death penalty for a homicide. (Id. at 2‐8.) For example, in respect to eight of the fourteen statutory aggravating factors, sentencers were more likely to impose life without parole than death if they found that factor;16 in cases where accused citizens received life without parole, the sentencer found an average of 2.17 statutory mitigating factors, whereas in cases where the accused received a death sentence, the sentencer found 2.2.17 Whereas the relationship between the total number of aggravating factors and a sentence of death is positive, it is only slightly so. (Id. at 2‐3.)
102. By contrast, the clearest, strongest predictor of whether a prosecutor would seek the death penalty was whether the accused was a

16Id. at 4‐5. 17Id. at 6.

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black person and the decedent was a white person. In 89% of the cases in
which prosecutors waived the death penalty, the accused and the decedent
were the same color, and prosecutors rarely charged whites for killing
blacks. (Id. at 11.) Prosecutors were radically less likely to waive the death
penalty in cases where they charged blacks with killing whites than in any
other class of death‐eligible cases:
For black offenders 44 percent of those receiving the death penalty killed a white victim, 44 percent of black offenders sentenced by a jury to life in prison killed a white victim, but only 18 percent of black offenders where the death penalty was waived killed a white victim. These figures indicate that in Missouri the race of the victim makes little difference for the legal outcome of white offenders, but for black offenders killing a white victim severely reduces the chances of having the death penalty waived by the prosecution—a reduction from 97 percent of white offenders who had killed white victims to 78 percent of black offenders who had killed white victims.18
103. The Galliher study examined the influence of youth on
charging and sentencing decisions, because it is a statutory mitigating
factor. The data from the circuit judges collected by the Missouri Supreme
Court showed that youth was a mitigating factor for white accused citizens
but not for black ones:
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Among cases where the prosecution waived the death penalty 14 percent of defendants were 18 years old or less, and 32 percent were 21 or less with a mean age of 28.2 years. In cases where a jury handed down a life sentence 9 percent were 18 or less, and 25 percent were 21 or less with a mean age of 28.2 years—exactly the same average age as for cases in which the prosecutor waived the death penalty. Those receiving the death penalty were slightly older than others. Prosecutors perhaps correctly perceive the common bias of jurors against imposing the death penalty against the very young.
. . .
The mean age of black offenders sentenced to death is 27.7 years, and for whites the mean age is 35 years. Twenty‐two percent of black defendants under the age of 21 were sentenced to death, while this was true of only 14 percent of white offenders under 21.19
The authors concluded that “young black defendants are in greater
jeopardy of a death sentence than are white offenders.”20
104. Another factor that the Galliher study explored was the
reputation of the decedent as a mitigating factor. The data from the circuit
judges, as collected by the Missouri Supreme Court, showed that the
18Id. at 11 (emphasis supplied). 19Id. at 8. 20Id. at 17.
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reputation of the decedent made a difference only if the decedent was
white:
While killing a white person with a bad reputation nearly always saved a defendant from death, it is much less likely to operate in the same fashion in the case of black victims. Perhaps this is true because all black victims were devalued whether or not they were noted to have a bad reputation.21
105. Prosecutors waived the death penalty as a rule if the accused
was a woman, as long as she was white:
Prosecutors seem less likely to seek the death penalty against female defendants than juries are to sentence females to death. The application of this apparent chivalry is, however, differentially distributed across races. Among death waived cases 20 percent of white offenders and only 3 percent of black offenders were females. In other words, white females were proportionately nearly seven times as likely to benefit from a waived death penalty as were black females.22
106. Dr. Lenza’s study included data into 1996, and was not
available until 2002. Whereas the Galliher study observed that the reports
from the trial judges in the Missouri Supreme Court’s database were
incomplete, and listed 189 names of persons in the Department of
Corrections for death‐eligible offenses at the relevant time that were
21Id. at 13.
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missing from the database,23 the authors of the Lenza et al. study used FBI Supplemental Homicide Reports to enhance their coverage.24 They divided capital cases into three stages: (1) the prosecutor’s decision whether to charge a death‐eligible offense, (2) the prosecutor’s decision whether to seek the death penalty for a death‐eligible offense, and (3) the result of a penalty phase once the prosecutor had decided to seek death.25 The first stage accounts for most of the decision‐making, as prosecutors charged only 5.8% of homicides (574 out of 9857) as death‐eligible cases; the second stage accounts for the next largest number of decisions, as prosecutors waived the death penalty in 49% of the cases they had charged as death‐ eligible (270 out of 551).26 Of the remaining cases, circuit courts sentenced 54% of the accused (152 out of 281) to death.27
107. At the first stage, in which the prosecutor decides whether to charge a homicide as “capital murder” or “first‐degree murder” (depending on the statutory classification of death‐eligible homicide at the
22Id. at 16. 23Id. at 18 & attached memorandum. 24Exhibit 13:4 25Id. at 4‐5. 26Id. at 4‐5. The authors dropped 23 cases due to insufficient data.
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time of the case), Missouri prosecutors were almost twice as likely to

charge a black who killed a white with death‐eligible homicide as they

were to charge a white who killed a black:28

Accused/Decedent Capital Total

Percent

White/White

274

White/Black

12

2945 254

8.39% 4.72%

Black/Black

188

6045

3.11%

Black/White

88

599

14.69%

Missing Cases

12

14

N/A

Totals

574

9857

5.8%

The authors explained that these data confirmed previous studies:

The percentages of all Missouri homicides charged with capital murder by offender/victim racial characteristics indicates blacks killing whites are 5 times more likely to be charged with capital murder than blacks killing blacks. Whites with black victims are half as likely to be charged with capital murder than whites killing other whites. . . . this pattern confirms the suspicion that whiteness is valued over non‐whiteness, predicting that the severest punishment would be visited on cases where the non‐white offender kills a Caucasian (‐/+) 14.69%, followed by a descending hierarchical

27Id. at 5. 28Id. at 8.

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structuring of the proportion of cases charged with capital murder based on racial characteristics: whites killing whites (+/+) 8.39%, whites killing blacks (+/‐) 4.72%, to the lowest, blacks killing blacks (‐/‐) 3.11%.29
108. At the next stage of a capital case—the prosecutor’s decision
whether to waive the death penalty for a death‐eligible homicide—the
Lenza study found that the color of the accused and the color of the
decedent played a strong explanatory role:
Compared to whites killing whites (W/W) one sees that blacks with black victims (B/B) are 59% less likely to be taken forward to trial, while blacks killing whites (B/W) are 56% more likely than (W/W) to be taken to trial. In the few cases where whites have killed a black victim and were charged with capital murder, they were 115% more likely to be taken to trial than whites taking the lives of other whites. The last category, whites killing blacks (W/B), represents the only 12 cases in Missouri over 18 years in which white defendants were charged with capital murder for killing an African‐ American, a mere 2% of the total cases.30
109. In contrast to the decisions made by prosecutors, the Lenza et
al. study found, the decisions made by judges and juries in the third stage
of a capital case—the actual sentence—did not reflect bias according to the
29Id. at 14 (emphasis supplied). 30Id. at 15.
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color of the accused or the color of the decedent.31 The Lenza et al. study
found other factors—such as low socio‐economic status of the accused and
the availability of gruesome photographs to inflame the jury—that were
associated with prosecutorial decisions to seek death.32 For example,
whereas juries and sentencing judges did not in fact respond measurably
differently to cases involving the use of firearms as opposed to knives,
prosecutors were 133% more likely to seek the death penalty in knife cases,
such as Mr. Taylor’s case, because they produce more gruesome
photographs they could use to inflame the jury, as this prosecutor did,
regardless of the relative moral blameworthiness of the offense.33 The
conclusions of the Lenza study pointed to prosecutorial discretion as the
main cause of racial disparity in the use of the death penalty in Missouri:
the seat of prosecutorial discretion is also the location of and the mechanism responsible for the greatest racial disproportionality in capital sentencing [in] Missouri. It is those elements of the process, in the hands of prosecutors, who are charged with selecting offenders and crimes for eventual capital consideration and sentencing, that

31Id. at 15‐16. 32Id. at 17‐19 & 20‐22. 33Id. at 17‐18.

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put in place factors which proportionate sentencing has sought to avoid.34 110. In 2001, the Executive Director of the ACLU of Eastern Missouri presented data on Missouri death sentences both from the time the state created a central execution process in 1937 until 1965, when the pre‐Furman moratorium took effect, and then from the post‐Gregg reinstitution of the death penalty until the date the paper was written in October 2001.35 This study, which was obviously not available at the time of the plaintiff’s consolidated appeal, complements the data the Missouri State Public Defender System had provided the Missouri Supreme Court in State v. Parker. Initially this paper emphasizes the variation among counties in the state: several sizable counties had no one under sentence of death, regardless of their homicide rate.36 111. From the creation of a centralized state death penalty to the pre‐Furman moratorium, the split between black and white persons that
34Id. at 22. 35DENISE LIEBERMAN, Legal Director, American Civil Liberties Union of Eastern Missouri, PROSECUTORS: THE FIRST LINE OF OFFENSE— PROSECUTORIAL DISCRETION AND ARBITRARINESS IN ADMINISTRATION OF THE DEATH PENALTY, http://www.umsl.edu/~phillips/dp/ACLUDenise.html (2001) (Exhibit 14.) 36Id. at 5‐10.
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Missouri executed was 23 to 16 over almost thirty years.37 The split after

Gregg was 21 to 30 to one Native American over about eleven years.38 The

state achieved this leveling of racial impact by increasing the executions

per year by about 300%, and killing more white men:39

Period Black

1937‐65 23

1989‐

21

2001

Totals 47

White
16 30
43

Native American 0 1

Total
39 52

1

91

Years
28 12
40

Annual Rate 1.4 4.3
2.3

112. Although this state is executing more white men, its death penalty continues to fall on black men convicted of killing whites far out of proportion to any other combination of homicide convicts and their decedents. While the death penalty continues to target black men out of proportion to their numbers, it has added white men to the pie of persons executed and has thereby decreased the proportion of blacks.
113. A 2003 article—which is not limited to Missouri data—shows that support for the death penalty among white people tends to vary

37Id. at 1‐2. 38Id. at 11. 39Id. at 11‐12.

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strongly according to a combination of racial prejudice and the proximity
of black residents to the person surveyed:40
as the black percentage of a county’s population rises, racial prejudice becomes a much more powerful predictor of whether a white person will strongly favor state executions. Indeed, the effect of context on the relationship between prejudice and white support is dramatic. Among white people who live in all‐white counties, the largest possible increase in prejudice (from 0 to 100) produces only a 34‐point increase in the probability of strong death penalty support (from .52 to .86). By contrast, when the black percentage of the county population stands just below 20%, the same increase in prejudice raises the probability of strong support from fairly unlikely (.29) to a virtual certainty (.95). Thus, the interplay of racial beliefs and racial proximity go far to explain strong white preferences for state executions—but neither factor can be adequately understood in isolation from the other.41
114. The case against Plaintiff Taylor arose in Jackson County, one
with a high proportion of African‐American citizens, yet one in which they
are a distinct minority. This is exactly the kind of jurisdiction in which the
foregoing article would predict a high correlation between racist attitudes
and support for the death penalty.
40J. SOSS ET AL., Why Do White Americans Support the Death Penalty? 65 J. OF POLITICS 397, 409 (2003). (Exhibit 15.)
41Id. at 411.
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115. As elected officers who retain their positions at the will of the electorate, Missouri prosecutors are presumptively aware of and responsive to the level of support for the death penalty. In its current form, the prosecutorial discretion created by Missouri statutes leads to racial discrimination in the imposition of the death penalty. The longitudinal data in the latter two articles cited in this response raise the question whether after Furman and Gregg have addressed various aspects of fairness at the jury and trial‐judge level, it is possible in any case for there to be a death‐charging decision which is free from impermissible attention—one way or the other—to the color of the accused and the color of the decedent.
116. Because the death penalty as practiced in Missouri both before and after Furman and Gregg is disproportionately applied against African‐ American men like Stanley Hall, Donald Jones, and Vernon Brown—and plaintiff Taylor—the fact that it is more tortuous than it need be is consistent with the behavior Dr. Lenza found beginning with the introduction of slavery into the Missouri Territory.
117. The use of a gratuitously painful form of suffocation, followed by the burning through the veins and the heart attack caused by potassium chloride, instead of a single, lethal dose of an otherwise legitimate
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medication such as pentobarbital is evidence that the state keeps the death penalty around primarily for “them.”
118. The proposition that the death penalty itself bears more heavily against blacks than whites is not before this Court as a claim for relief. In light of this fact, however, the additional fact that the defendants use a special form of lethal injection which creates a foreseeable, completely unnecessary, risk of inflicting gratuitous pain and suffering, when the executions of slaves and their descendants have historically been more painful than the execution of others in a slave jurisdiction such as Missouri, is a badge or vestige of slavery over and above the existence of the death penalty in the abstract and over and above the judicial decision to impose the death penalty in a given case.
119. The foregoing reasoning applies with equal force to Mr. Clay notwithstanding the fact that he is white. The numbers of persons executed before and after Furman and Gregg show that Missouri has increased the number of executions per year by increasing the number of white men it has executed. Of course that might just be a coincidence, but another view would be that state actors execute more white men, like Mr. Clay, in order to maintain the practice of capital punishment which
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continues to bear disproportionately on black men, like Mr. Taylor. The racist character of this practice is unaffected by the selection of a relatively small proportion of white homicide convicts to improve the numbers under sentence of death when one takes account of the color of the decedent, which shows that the State of Missouri values a white life six times more highly than it values a black life.
VII. Claims for Relief 120. Plaintiff restates and realleges the contents of each preceding paragraph as if fully set forth again.
Count I 121. Unless this Court stops them, the defendants, acting individually and under color of state law, will violate the plaintiffs’ right to be free of cruel and unusual punishments secured to them by the Eighth Amendment to the Constitution of the United States as applied against the states by section 1 of the Fourteenth Amendment by executing them using the sequence of three chemicals (sodium pentothal a/k/a thiopental, pancuronium bromide, and potassium chloride) which they have admitted to be their practice in their discovery responses in Johnston v. Kempker as aforesaid, which is unnecessary as a means of employing lethal injection
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and not required by the statute creating this form of execution in the State of Missouri, and which creates a foreseeable risk of inflicting gratuitous pain and suffering.
Count II 122. Unless this Court stops them, the defendants, acting individually and under color of state law, will violate the plaintiffs’ right to be free of cruel and unusual punishments secured to them by the Eighth Amendment to the Constitution of the United States as applied against the states by section 1 of the Fourteenth Amendment by executing them using a painful, invasive, involuntary procedure to gain access to a central vein for the purpose of killing them rather than treating them.
Count III 123. Unless this Court stops them, the defendants, acting individually and under color of state law, will violate the plaintiffs’ right to due process of law as guaranteed by section 1 of the Fourteenth Amendment by executing them by unlawfully using a physician to carry out essential steps in an execution in violation of medical ethics.
Count IV 124. Defendants’ chosen use of a specific form of lethal injection which is more painful than necessary to bring about the statutory objective
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of killing the condemned person is a vestige and badge of slavery, and therefore violates the Thirteenth Amendment as well as the Eighth and Fourteenth, and impinges on the vertical‐equity (color and socio‐economic status of accused) and horizontal‐equity (irrationality of who among the mass of homicide defendants gets the death penalty, even irrespective of color and SES) prongs of Eighth Amendment analysis (applied against the states through the Fourteenth) as well as the severity prong, the latter of which is the focus of Counts I‐III.
VIII. Exhaustion of Administrative Remedies 125. Plaintiffd have exhausted any available administrative remedy for the issues contained in this complaint, because the selection of chemicals for lethal injection is not a grievable issue within the meaning of the administrative grievance procedure as adopted and applied by the defendants’ actual penological agents as distinguished from the Department’s outside counsel in the Attorney General’s Office, and these agents have so informed him in response to his attempt to seek administrative remedies. (Exhibit 16.)
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126. As noted, in the Johnston, Jones, and Brown litigation, the defendants initially asserted that the plaintiff had failed to exhaust administrative remedies.
127. In Johnston, the defendants’ clients in the Department of Corrections had admitted, by signed notation on Mr. Johnston’s IRR, that the issue of which chemicals the executioners use is “non‐grievable.” (Exhibit 5).
128. Counsel for the defendants in Johnston (who were also counsel for the defendants in Jones and Brown) recognized this fact by dropping the nonexhaustion point in the reply to Mr. Johnston’s response to which the IRR was attached as an exhibit. (Exhibit 6.)
129. The same counsel raised the same defense in Jones, knowing that this issue was not grievable according to the Department of Corrections, in whose favor the exhaustion requirement of 42 U.S.C. § 1997e is supposed to run; the Court relied on her representations; Mr. Jones was executed by the use of the specific chemical sequence which Mr. Johnston’s pleadings and Mr. Jones’s pleadings showed to create a foreseeable risk of inflicting gratuitous pain and suffering in violation of the Eighth and Fourteenth Amendments.
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130. As of the time this claim manifested itself beyond cavil with the publication of the LANCET article, Vernon Brown was not only aware of what happened to Mr. Johnston’s grievance but had also heard that when other prisoners have attempted to file IRR’s on this issue, the staff of the Department of Corrections have actually refused to give them IRR forms because of the Department’s position that the issue was not grievable. (Exhibit 8.)
131. Nonetheless, on the advice of counsel, Mr. Brown filed an IRR, and plaintiff Taylor submitted with the original complaint in this action a true and correct copy of it with the above‐referenced affidavit by Mr. Brown as Exhibit 8. This filing was expressly made in an abundance of caution and not by way of admission that the issue is grievable notwithstanding the well‐established position of the Department of Corrections, reflected both to the federal courts through counsel and to the prisoners affected by the issue by the staff of the Department.
132. Because the issue of how the state does lethal injections is not within the scope of the Department of Corrections grievance policy, this complaint is not subject to the requirement of 42 U.S.C. § 1997e.
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133. Parties in privity with the State of Missouri, such as these defendants, are estopped to assert the nonexhaustion of administrative remedies because the Department of Corrections does not consider this issue grievable (and their attorneys know it).
134. In Mr. Brown’s case, the staff who responded to Mr. Brown’s IRR changed the response from what it had been in Johnston and what Mr. Brown had heard it had been to other prisoners under sentence of death, and asserted that Mr. Brown—whose execution date had already been set—had to pursue multiple levels of review in order to exhaust administrative remedies on the issue. (Exhibit 9.)
135. In Mr. Brown’s case, the district court relied on these representations to deny a temporary restraining order. A divided United States Court of Appeals for the Eighth Circuit denied a stay of execution, as did the United States Supreme Court over the dissenting votes of four Justices, and Mr. Brown was executed on May 18, 2005.
136. Plaintiff Taylor filed an Informal Resolution Request, and the staff returned it to him with the explanation that he could not file it because the subject‐matter of the issue was not grievable but was involved in litigation. (Exhibit 16.) Defendants’ counsel are estopped to contradict
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their clients’ correct interpretation of their own administrative regulations in order to avoid this issue once more.
137. After counsel had prepared and circulated a complete draft of this complaint, he received a telephone call from plaintiff Taylor, indicating that the staff had told the plaintiff he could, after all, file an IRR, but that there was no guaranty the result would be any different. Plaintiff proceeded with the re‐filing of an IRR.
138. On or about September 1, 2005, agents of the Department of Corrections returned the “appeal” to plaintiff Taylor, after which there is no even arguable recourse for him within the state’s grievance process. By pursuing this process to the full extent the state even pretended to offer one, however, this plaintiff does not admit that there was an available grievance process. The subject‐matter fell outside the language of the federal statute offering this defense to participating states and the state regulation defining the scope of the process. The state and its agents have not regularly followed a position that there was any administrative remedy for this grievance. Once the institutional staff indicated the issue was not grievable or not subject to resolution at the institutional level, there was nothing further the state could do for the plaintiff by this process.
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139. Pendency of this new IRR from the filing of this action through its return to plaintiff Taylor is not a cloud on this complaint. Selection of a specific means of lethal injection is not a “prison condition” within the meaning of 42 U.S.C. § 1997e(a), the source of the requirement of exhaustion of administrative remedies. Selection of a specific means of lethal injection is not a matter of “institutional life” within the meaning of the administrative remedy the Department of Corrections adopted to take advantage of section 1997e. (Exhibit 17 at 2, ¶ D5‐3.2, II.J.) Defendants’ agents have admitted the inapplicability of the grievance procedure in Johnston. (Exhibits 5‐6.)
140. This Court should not allow the defendants to avoid accountability for their actions by invoking section 1997e. Their shift of ground in the Vernon Brown case was belied by their attorneys’ admissions in the hearing on Mr. Brown’s motion for a temporary restraining order. During the hearing, the issue of exhaustion of administrative remedies was discussed at some length. Defendants represented the complete exhaustion of administrative remedies requires three steps: (1) the filing of an IRR, (2) the filing of a grievance, and (3) the filing of a grievance appeal. (Exhibit 18 at 60.) Defendants further represented the grievance is filed with the
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superintendent of the institution where the prisoner is incarcerated, and the grievance appeal is addressed by “central office,” which counsel for the defendants elided with defendant Crawford, the Director of the Department of Corrections. (Id. at 61‐62.)
141. In Vernon Brown’s case, the defendants—who were the same as the defendants in Johnston and Jones, and one of whom was opposing counsel on these plaintiffs’ federal habeas corpus petition and on his motion to recall the mandate of the Missouri Supreme Court—conceded that the corrections classification worker who would address the initial IRR has no authority to change the lethal injection protocol; they further conceded the superintendent of the institution where the prisoner is incarcerated has no authority to change the protocol for the lethal injection. (Id. at 61.) They admitted the only person with authority to change the protocol would be defendant Crawford. When asked whether an inmate had the ability to bring an initial grievance before the Director, they conceded there was no procedure for that:
THE COURT: Okay. Could Mr. [Brown] have bypassed the IRR procedure and the grievance? Since it is clear that no one at the institution had authority to make any changes, could he have bypassed the institutional officials and gone directly to the director with his complaint?
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MS. McElvein: No, your Honor. Not that I am aware of. [Id. at 62‐63.] 142. There is therefore no administrative process available to the plaintiff to grieve this claim. By the defendants’ admissions in open court, the Director’s role in the normal administrative process is to function as an appellate decisionmaker, reviewing the disposition of the grievance filed with the superintendent of the institution where the prisoner is incarcerated. In this case, the defendants concede that the superintendent of an institution, even of the institution where the executions occur, has no authority—no jurisdiction—to change the protocol for lethal injections. Thus, as the appellate decisionmaker reviewing any decision made by the superintendent, the only role the Director would serve would be to determine whether the superintendent correctly determined the superintendent had no authority to change the chemicals which other personnel use in lethal injections. The Director’s appellate role in the administrative grievance process is not the same as his role as the initial decisionmaker. Here, the defendants have conceded there was no administrative grievance procedure available to seek to change the Director’s position as the initial decisionmaker, rather than in the role of an appellate decisionmaker reviewing the question whether the
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superintendent had the authority to determine which chemicals to use, which they concede he does not.
143. It is therefore irrelevant whether the staff of the Department of Corrections adhere to their correct position that the issue in theseplaintiffs’ IRR is not grievable, or attempt to manipulate this Court as they did a sister court in Vernon Brown’s case by moving the goalposts.
144. Missouri does not provide an administrative grievance process for presenting this issue, and therefore section 1997e would not apply even if the method of execution were a “prison condition,” even if “institutional death” equaled “institutional life,” and even if the United Nations Convention Against Torture were not part of “the supreme law of the land” requiring the United States to afford the plaintiff a forum for raising this issue.
IX. Prayer for Relief 145. Initially, the plaintiffs seek a preliminary injunction to prevent the defendants from executing either or them until the defendants have responded to their discovery (including what appears to be the inevitable time it will take to litigate motions to compel as Mr. Johnson had to do) and until this Court has adjudicated his underlying claim for relief on the
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merits (including the time it would take for any appeal from the disposition).
146. Second, the plaintiffs seek a declaratory judgment holding that the defendants’ current means, methods, practices, procedures, and customs regarding execution by lethal injection violate the Eighth, Thirteenth, and Fourteenth Amendments.
147. Plaintiff seeks a permanent injunction preventing the defendants from using their current means, methods, practice, procedures, and customs regarding execution by lethal injection.
148. Finally, the plaintiffs seek an order granting them reasonable attorney fees under 42 U.S.C. § 1988 and the laws of the United States; for his costs of suit; and for such other and further relief as the Court deems appropriate.
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WHEREFORE, the plaintiffs pray the Court for its orders as

aforesaid.

Respectfully submitted,

/s/ JOHN WILLIAM SIMON

/s ELIZABETH UNGAR CARLYLE

2683 South Big Bend Blvd, # 12 St. Louis, Missouri 63143‐2100

200 S.E. Douglas, Suite 200 Lee’s Summit, Missouri 64063‐2375

(314) 645‐1776 FAX (314) 645‐2125

(816) 525‐9652 FAX (816) 525‐1917

Attorney for Plaintiff Taylor

Attorney for Plaintiff Clay

Certificate of Service
I hereby certify a true and correct copy of the foregoing was
forwarded for transmission via Electronic Case Filing (ECF) this twelfth
day of September, 2005, to the offices of:
Michael Pritchett, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, Missouri 65102
/s/ John William Simon Attorney for Plaintiff Taylor

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR, et al., Plaintiffs,
v. LARRY CRAWFORD, Director, Missouri Department of Corrections, et al.,
Defendants.

)

)

)

)

)

No. 05-4173-CV-C-SOW

)

)

)

)

)

ORDER

Plaintiffs, inmates confined in a Missouri penal institution, brought this case under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its corresponding jurisdictional statute, 28 U.S.C. § 1343.
On September 26, 2005, defendants filed a motion to dismiss for failure to exhaust administrative remedies and for failure to state claim upon which relief can be granted. Plaintiffs responded on October 12, 2005, and defendants have replied.
"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. " Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When applying this standard, the court accepts as true the factual allegations in the complaint and views them in the light most favorable to the plaintiff. Hishon v. King and Spalding, 467 U.S. 69, 73 (1984); Kohl v. Casson, 5 F. 3d 1141, 1148 (8th Cir. 1993).
Defendants first state that the claims raised by plaintiffs should be brought pursuant to habeas corpus, 28 U.S.C. § 2254. However, in this case, plaintiffs do not ask to have their sentences set aside, shortened or changed; they merely challenge the method of execution on the grounds, among others, that it is cruel and unusual, in violation of the Eighth Amendment to the United States Constitution because it inflicts unnecessary pain. Because it is a challenge to the method of execution, not the fact or timing of execution, it is not a habeas claim; rather,

a claim under the Eighth Amendment, which can properly be brought under 42 U.S.C. § 1983. See, e.g., Nelson v. Campbell, ___ U.S. ___, 124 S. Ct. 2117 (2004); Wilkenson v. Dotson, ___ U.S. ___, 125 S. Ct. 1242 (2005).
Defendants next challenge this case, brought under 42 U.S.C. § 1983, on the grounds that plaintiffs have failed to exhaust their administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997(e)(a). Although defendants submit documentation that suggests this issue can be grieved to the Department of Corrections’ grievance procedure, the failure to exhaust the grievance procedure is not jurisdictional. Furthermore, the issues in this case are similar, if not identical, to those raised in Johnson v. Crawford, No. 04-1075 (E.D. Mo. 2005), which was resolved in favor of defendants. If defendants had any willingness or desire to change the method of execution because of the pain inflicted, they would have done so in that case, and can do so anytime they see fit. Forcing plaintiffs to file a grievance would be a futile act. This court will not dismiss for failure to exhaust futile grievance procedures.
Defendants also claim that the method of execution is not cruel and unusual. That claim goes to the merits and will likely be decided on a motion for summary judgment or after a hearing, but is premature on a motion to dismiss, given the allegations in plaintiffs’ complaint.
Defendants’ other allegations of why this case should be dismissed lack merit. IT IS, THEREFORE, ORDERED that defendants’ motion to dismiss is denied [38].

Dated: 12-28-05

/s/Scott O. Wright SCOTT O. WRIGHT Senior United States District Judge

2

 
 Taylor v. Crawford, Not Reported in F.Supp.2d (2006)
2006 WL 1236660 Only the Westlaw citation is currently available.
United States District Court, W.D. Missouri, Central Division.
Michael Anthony TAYLOR, Plaintiff, v.
Larry CRAWFORD, et al., Defendants. No. 05-4173-CV-W-FJG. | May 5, 2006.
Attorneys and Law Firms Donald B. Verrilli, Eric Berger, Matthew S. Hellman, Ginger Anders, Jenner & Block LLP, Washington, DC, John William Simon, St. Louis, MO, for Plaintiff. Michael Pritchett, Missouri Attorney General, Jefferson City, MO, for Defendants. Opinion
ORDER
FERNANDO J. GAITAN, JR., District Judge. *1 Currently pending before the Court is plaintiff’s Motion for Reconsideration Pursuant to Fed.R.Civ.P. 60 (Doc. # 98).
I. BACKGROUND This case was remanded from the Eighth Circuit on April 27, 2006 for the limited purpose of permitting a continuation of the hearing held on January 30-31, 2006. The Court held a teleconference with the parties on May 1, 2006 to discuss the status of the case. The Court advised the parties that it would be helpful if they could provide to the Court an outline of the discovery which they wished to conduct. The Court notified the parties that another conference would be scheduled the following day. On May 2, 2006, plaintiff provided to the Court the requested discovery outline. The filing also indicated defendant’s position with regard to each of the categories of discovery.
Plaintiff proposed the following: 1) a Rule 34 Inspection of the facility where Mr. Taylor will be executed; 2) Depositions of Larry Crawford (current head of Missouri Department of Corrections); Dr. Mark Dershwitz; Joe Doe No. 1 (who assists in executions); John Doe No. 2 (nurse who assists with executions); John Does 3-10; and a Rule 30(b)(6) deposition of the individual who chooses the execution procedure for each execution; 3) Twenty-seven different document requests (including sub-parts). Additionally, plaintiff also planned to submit to the defendants interrogatories and requests for admission by Thursday May 4, 2006.
In advance of the teleconference, the Court issued an Order on May 2 which limited the discovery which plaintiff sought. Plaintiff has now filed the instant Motion for Reconsideration of the Order limiting discovery. Plaintiff in his Motion states that the Court should reconsider its prior Order because 1) it is inconsistent with the Eighth Circuit’s opinion and 2) the discovery is highly relevant and so central to the merits of his case that denial of the discovery would violate due process.
1

Taylor v. Crawford, Not Reported in F.Supp.2d (2006)
II. DISCUSSION
A. Eighth Circuit’s Opinion Plaintiff believes that he is entitled to present whatever witnesses and evidence might possibly be relevant to support his case. He states that he is not asking for an entirely new hearing, but rather for the opportunity, to “expand or supplement the record” with any additional evidence that may shed light on the legal issues at hand. Additionally, plaintiff states that the Eighth Circuit’s opinion was extremely clear that additional discovery may be warranted and that this Court should use its discretion in deciding what discovery is open to the parties. Plaintiff states that the Court did not exercise its discretion soundly by ruling on the scope of the discovery without allowing argument by the parties beforehand.
The State responds that the Court’s Order is consistent with the Eighth Circuit’s instructions on remand to permit “some further opportunity for discovery [as] may be warranted.” Taylor v. Crawford, No. 06-1397, 2006 WL 1098173, *4 (8th Cir. Apr. 27, 2006). The State suggests that by establishing a thirty day time deadline for the completion of any discovery, the Eighth Circuit did not intend to grant plaintiff an unfettered opportunity to conduct whatever discovery he desired.
*2 In reply, plaintiff states that he is not seeking to wipe out the discovery which has already been conducted, but is instead only seeking to add to the record. Plaintiff also states that he is not seeking to expand the thirty day time frame established by the Eighth Circuit. He argues that if the Eighth Circuit had not intended to allow any additional discovery, they could have ordered only a thirty day period to prepare for and conduct the hearing.
The Court in reviewing the requested discovery found it to be overly expansive. The parties must be mindful that this case was initially filed on June 3, 2005. Some discovery had taken place before the case was appealed to the Eighth Circuit. The Court was simply exercising its discretion in determining what discovery is relevant and can realistically be accomplished within the time frame established.
B. Relevance of Discovery
1. Depositions of John Doe Defendants Secondly, plaintiff argues that several of his requests are extremely relevant to presenting his case. For example, plaintiff argues it is crucial that he be able to depose John Doe No. 1-the doctor who inserts the femoral catheter, as his argument is that this procedure is extremely risky, poses a serious risk of infection and violates the Eighth Amendment. Plaintiff argues it is important to depose this person to discover their qualifications and also to determine if they are a certified anesthesiologist trained to administer anesthetic depth. As alleged in his Complaint, plaintiff argues that if the first chemical is not administered correctly, it fails to anesthetize the inmate completely and he could suffer excruciating pain as a result of the other two chemicals. Additionally, plaintiff argues that depositions of the other medical personnel would also lead to crucial information, i.e. the person who mixes the chemicals and their qualifications, the person who actually pushes the plunger, and the identity of John Doe No. 4, the only person in the room during the actual execution.
The State argues that disclosure of the identity of these individuals would be inappropriate because of security concerns for the prison and for these individuals.
Plaintiff responds that it is critical to depose these individuals and that interrogatories are not sufficient, because it is crucial to be able to ask follow up questions. Plaintiff states that a Protective Order would more than adequately protect the security interests of the State. Additionally, plaintiff notes that it might be possible to conduct anonymous in person depositions, so as not to disclose the identity of these individuals.
The Court determines that plaintiff should first submit interrogatories to these individuals. If the responses received are not adequate to answer plaintiff’s questions, plaintiff may seek leave from the Court to conduct anonymous depositions.
2. Deposition of Dr. Dershwitz Plaintiff also argues that it is crucial to be able to depose Dr. Dershwitz, because the State’s entire case rests on his accuracy and credibility. Plaintiff argues that his counsel did not have a proper opportunity to cross examine Dr. Dershwitz during the previous hearing in January. Plaintiff states that it is necessary that he be deposed because his scientific conclusions and
2

Taylor v. Crawford, Not Reported in F.Supp.2d (2006)
graphs have never been publically challenged and his assumptions underlying this evidence are fatally flawed. Plaintiff also argues that it is essential that he receive any records of Missouri executions dating back to 1989, because these records may contradict Dr. Dershwitz’s assertions that an inmate will stop breathing within one minute of the administration of thiopental and that death results within one minute of the administration of potassium chloride. Plaintiff argues that there are reasons to believe that Missouri execution records dating back to 1989 would disprove Dr. Dershwitz’s assertions in this regard. *3 The State asserts that there is no reason to depose Dr. Dershwitz at this point in time, as he has already testified in the hearing and plaintiff had an opportunity to cross-examine him regarding his views. A deposition of Dr. Dershwitz would add nothing new to what is already in the record. The Court agrees that there is no need to conduct a full deposition of Dr. Dershwitz at this point in time. The Court would consider allowing a limited deposition of Dr. Dershwitz if plaintiff could demonstrate that there were some specific points which he was not allowed to cover in the previous hearing, or if for example, there are records which the State produces which he did not have an opportunity to cross-examine Dr. Dershwitz about earlier. If plaintiff believes this to be the case, he may submit to the Court a list of questions which he would like to ask Dr. Dershwitz. However, the Court will not allow a full deposition of Dr. Dershwitz addressing issues on which he previously testified.
3. Past Execution Records Plaintiff also argues that it is necessary to allow him access to documents relating to Missouri executions dating back to 1989. Plaintiff states these documents would show what changes which have been made in the lethal injection procedures over the years in order to determine what type of complications have arisen and whether the State has acted with the necessary level of care. Plaintiff argues that his document requests are narrowly tailored to provide this critical information and seek documents pertaining to only 66 executions. At the very least, he requests that the Court grant his request for documents dating back to January 1, 1995, as that is when the State stopped using the Leuchter machine for administering lethal injections. Thus, he argues that the procedures from 1995 forward are relevant to the procedures currently employed by the State. The State argues that documents going back more than the last six executions are of little or no relevance and are too remote in time to be of assistance to plaintiff in this case. The State notes that plaintiff’s argument is that the execution process is currently flawed, and what that process is will be fully reflected in the material from the last six executions. Plaintiff argues that the State has previously acknowledged that executions from 2000 to the present are relevant and calculated to lead to the discovery of admissible evidence because revisions to the execution protocol regarding the lethal injection process have not been made since 2000. The Court disagrees and finds that information relating to the last six executions is more than sufficient to provide the plaintiff with relevant data which is not too remote in time.
III. CONCLUSION For the reasons stated above, the Court hereby DENIES plaintiff’s Motion for Reconsideration (Doc. # 98).
3

 
 Taylor v. Crawford, Not Reported in F.Supp.2d (2006)
2006 WL 1522679 Only the Westlaw citation is currently available.
United States District Court, W.D. Missouri, Central Division.
Michael Anthony TAYLOR Plaintiff, v.
Larry CRAWFORD, et al., Defendants.
No. 05-4173-CV-C-FJG. | May 30, 2006.
Attorneys and Law Firms
Ginger Anders, Jenner & Block LLP, Donald B. Verrilli, Eric Berger, Matthew S. Hellman, Washington, DC, John William Simon, St. Louis, MO, for Plaintiff.
Michael Pritchett, Missouri Attorney General, Jefferson City, MO, for Defendants.
Opinion
ORDER
GAITAN, J.
*1 Currently pending before the Court is plaintiff’s Motion to Reconsider (Doc. # 160). Plaintiff asks the Court to reconsider the procedure which the Court proposed in its May 26, 2006 Order regarding the deposition of John Doe No. 1. Plaintiff’s arguments fall into three categories: 1) The Court should not conduct the questioning of John Doe No. 1; 2) Plaintiff should not have been required to disclose all his questions in advance because this will allow John Doe No. 1 time to consider his answers in advance and also possibly allow for coaching by counsel; and 3) The questioning should not be limited to the three areas outlined by the Court.
Before addressing plaintiff’s concerns, the Court notes that this case is not like a traditional civil case where the parties would have several months to pursue discovery. The Eighth Circuit gave the parties thirty days to conduct discovery and gave the Court thirty days to hold a hearing and issue an Order. This case was remanded in order that “some further discovery” could be conducted. However, the Eighth Circuit gave this Court discretion over what discovery would be allowed and how it would be conducted. The Court warned the parties at the outset, that discovery would be limited to only those witnesses and areas necessary to address the issues before the Court. The remand was not an open invitation for plaintiff’s counsel to conduct a full scale investigation into Missouri’s lethal injection protocol. During discovery, it has become apparent that there have been deviations in the lethal injection protocol. This development justified the propounding of limited interrogatories to John Doe No. 1. After having reviewed the interrogatory responses, the Court felt that some additional questions were justified to clarify and further develop some very limited areas, which the Court outlined in its Order. The Court never intended to allow plaintiff to conduct a comprehensive deposition of John Doe No. 1, as it would have if this case were on a normal discovery schedule. That is why the Court asked plaintiff to submit the questions to the Court in advance, so that the Court could review the questions and determine whether they were beyond the scope of what the Court would allow. Plaintiff seems to believe that this procedure has somehow prejudiced him, because John Doe. No. 1 will have an opportunity to review the questions and consult with counsel in advance of his deposition. However, the Court does not find that this procedure unnecessarily prejudices him. If plaintiff’s counsel truly believed that they were prejudiced by having to submit the questions in advance, they could have requested leave to submit the questions to the Court in camera.
The Court would like to clarify that during the deposition, plaintiff’s counsel will be able to question John Doe. No. 1 during the deposition. However, as in a trial, the Court will also question the witness as necessary.
Finally, plaintiff argues that the deposition should not be limited to only the three areas outlined in the Court’s Order.
1

Taylor v. Crawford, Not Reported in F.Supp.2d (2006) However, as discussed above, the Court feels that these are the areas which are the most significant and critical to the issues currently before the Court. Neither the Court nor the parties have the luxury of time to ask all the questions which in a normal case they might propound to the witness. Keep in mind, this case was filed almost a year ago, on June 3, 2005. Had discovery been as aggressive initially as it has been in the last thirty days, more time could have been given to these issues. *2 Accordingly, the Court hereby DENIES plaintiff’s Motion to Reconsider. (Doc. # 160). An anonymous deposition of John Doe No. 1 will take place on Monday June 5, 2006 at 1:00 p.m. in Kansas City, Missouri. John Doe No. 1 will be present at the Courthouse in Kansas City, Missouri. Each side will be permitted to have one attorney present at the deposition. The plaintiff will be given two hours to question John Doe No. 1 on the three subject areas previously discussed and covered within the list which was previously submitted to the Court by plaintiff. Counsel for the State will be given a reasonable time to question the witness, not to exceed that time allowed to plaintiff. Discovery has been extended to allow this deposition only. The deadline for the parties to submit their pre-trial briefs has been extended to Thursday June 8, 2006.
2

 
 Taylor v. Crawford, Not Reported in F.Supp.2d (2006)

Opinion

2006 WL 1616179 Only the Westlaw citation is currently available.
United States District Court, W.D. Missouri, Central Division.
Michael Anthony TAYLOR, v.
Larry CRAWFORD, et al., Defendants.
No. 05-4073-CV-C-FJG. | June 2, 2006.

ORDER
FERNANDO J. GAITAN, JR., District Judge.
*1 Currently pending before the Court is plaintiff’s Motion to Reconsider Limitations on the Deposition of John Doe No. 1 (Doc. # 168). Plaintiff asks the Court to reconsider the following limitations which the Court has placed on the deposition of John Doe No. 1: 1) two hour time limitation to depose John Doe No. 1; 2) allowing only one attorney to be present at the deposition and 3) limiting the questioning to only the three areas referenced by the Court. The Court will address each of these areas in turn.

1. Time Limitation Plaintiff states that Fed.R.Civ.P. 30(d)(2) unequivocally entitles all parties to depositions lasting seven hours. Plaintiff argues that there is no good cause for the Court to curtail the deposition of John Doe No. 1 and there is no evidence in the record that plaintiff intends to harass John Doe No. 1 or has harassed any other party in this case. Plaintiff also states that there has been no showing in this case that the parties have conducted themselves in a manner that would require the Court’s supervision. The Court disagrees. Plaintiff’s counsel has shown through its voluminous motions, letters and other correspondence to the Court that they are unable to restrain themselves. Upon review of the proposed questions, this Court has determined that the issues plaintiff wishes to cover in the deposition can reasonably be asked in two hours. If during the deposition the Court finds that more than two hours is needed, additional time may be allowed. Plaintiff’s counsel are also advised that they will only be allowed to cover on redirect examination, areas of inquiry which were raised by defendant on cross-examination.

2. Limitation on Attorneys Who May Attend Plaintiff also argues that the Court has no good cause to limit the number of attorneys who attend the deposition. Plaintiff wishes to have two attorneys present, one who will depose the witness and a second attorney who would “second chair” the deposition. The Court disagrees and finds that there is no reason to have multiple attorneys present during the deposition of this witness. Counsel for plaintiff have obviously given a great deal of thought to the questions which they wish to ask this witness, and additionally a transcript will be available for any counsel who wish to review it. In light of the security concerns present regarding this witness, the Court finds that limiting the number of people involved is a reasonable step to take.

3. Limitation on the Substantive Issues Plaintiff’s counsel also raise again their disagreement with the limitations on discovery which this Court has placed upon them. Plaintiff argues that the Eighth Circuit placed no substantive limitations on the issues which Plaintiff was entitled to explore or the evidence that he could collect. Plaintiff is correct, the Eighth Circuit did not place any limitations, but rather
1

Taylor v. Crawford, Not Reported in F.Supp.2d (2006) left the question of what discovery and how much discovery should be allowed up to the discretion of this Court. The Eighth Circuit stated: “we remand for the limited purpose of permitting a continuation of the hearing held on January 30-31, 2006, before Judge Gaitan. While we conclude that some further opportunity for discovery may be warranted, we leave all matters of what further discovery may be warranted to Judge Gaitan....” Taylor v. Crawford, No. 06-1397, 2006 WL 1098173, *4 (8th Cir. Apr. 27, 2006). Plaintiff’s counsel have continually treated this case as if it has just been filed. While the Court recognizes that the current counsel did not enter their appearance in the case until recently, the case has been on file for almost a year and this Court has already conducted a two day hearing in January of this year. Plaintiff’s counsel are not entitled to turn back the clock and start at the beginning. This Court has done what the Eighth Circuit directed, and allowed the parties an opportunity to conduct some limited discovery on the issues which are central and critical to this case in the time which was allowed by the Court’s Order. However, the Court will allow plaintiff to use his two hours to cover any of the questions previously submitted for its review, subject to appropriate objections. *2 Therefore, plaintiff’s Motion to Reconsider the Limitations On the Deposition of John Doe No. 1 is hereby GRANTED in part and DENIED in part. (Doc. # 168).
2

 
 IN THE UNITED STATES SUPREME COURT

LARRY CRAWFORD and JAMES PURKETT,
Petitioners,
v.

) ) )
) ) No. A‐_____ ) (8th Cir. No. 06‐1278WMJC) ) (Dis. Ct. No. 05‐4173‐CV‐C‐SOW)

MICHAEL ANTHONY TAYLOR, )

)

Respondent.

)

APPLICATION TO VACATE STAY OF EXECUTION

Petitioners counsel, apply to vacate the stay of execution entered by the

United States Court of Appeals for the Eighth Circuit in Michael Anthony

Taylor v. Larry Crawford, Director of Missouri Dep’t of Corrections, and James D.

Purkett, Supt. of the Eastern Reception Diagnostic and Correction Center, and John

Does 1‐666, No. 06‐1278WMJC (8th Cir. Jan. 29, 2006).

Procedural History

Respondent Taylor pled guilty to first degree murder, armed criminal

action, kidnapping and forcible rape for which he was sentenced to death,

fifty years, fifteen years, and life imprisonment, all sentences to run

consecutively. The court affirmed the convictions and sentences as well as the denial of post‐conviction relief. State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996), cert. denied, 519 U.S. 1152 (1997).
Taylor initiated a petition for writ of habeas corpus in the United States District Court for the Western District of Missouri. The district court denied the petition, and the court of appeals affirmed. Taylor v. Bowersox, 329 F.3d 963 (8th Cir. 2003), cert. denied, 541 U.S. 947 (2004).
On June 3, 2005, Taylor filed a suit asserting civil rights claims under 42 U.S.C. § 1983 that his execution by means of Missouri’s lethal injection procedure would violate his constitutional rights. On January 3, 2006, the Supreme Court of Missouri set an execution date of February 1, 2006, for Taylor. On January 19, 2006, the district court entered its order in this case to bar Taylor’s execution on February 1 and directing that no execution take place until the court holds a hearing on the merits beginning on February 21, 2006, and further order of the court.
On January 29, 2006, the Eighth Circuit entered its order vacating the order of the district court, but issuing its own stay of execution through
2

February 3, 2006, pending an immediate hearing and an order on the issues to be presented by the district court no later than 12 noon on Wednesday, February 1, 2006. Application Exhibit N.
Impact of the Stay and Accompanying Procedural Mandate In Missouri, execution warrants are issued by the Missouri Supreme Court for a particular date. See, e.g., Missouri Supreme Court order of January 3, 2006, and Warrant of Execution (Application Exhibits O and P). See Delo v. Stokes, 495U.S. 320,110 S. Ct. 1880, 1881 (1990). They thus permit the execution to take place any time between 12:01a.m. and 11:59 p.m. The Missouri Department of Corrections begins preparation for the execution days before the warrant date. Preparation accelerates during the day before the warrant day, with the object of being ready for the execution itself immediately after the execution “day” begins – i.e., by 12:01 a.m. of the date fixed by the Missouri Supreme Court. There are, of course, myriad reasons that an execution might be delayed – though the most common by far are a stay entered by a court or an executive delay resulting from pending judicial proceedings. By setting the execution
3

for 12:01am, the Department ensures that there is a full, 24‐hour day in which to resolve any such issues. But if an issue is unresolved and the execution does not take place before midnight, the executive authority is erased. The matter returns to the Missouri Supreme Court for a new execution warrant.
The state must continue, and is continuing, to prepare for the execution scheduled at 12:01 a.m. tomorrow, Wednesday, February 1, in anticipation of legal challenges to the execution being determined against respondent Taylor. The stay entered by the Eighth Circuit (or the one, now vacated, previously entered by the district court) will interfere with the completion of that process. Despite the accompanying mandate for a hearing and prompt ruling, the stay threatens to force the entire process to begin again. Although the Eighth Circuit order (Application Exhibit N) permits the state an opportunity to show again (as it has already shown before in the Johnston case, discussed below) that its lethal injection process does not violate the Constitution, it does not call for a decision by the district court on this question until 12 noon on February 1 – the middle of the execution “day” as set by the Missouri Supreme Court.
4

Pursuant to the Eighth Circuit order, the matter is proceeding apace. U.S. District Judge Fernando Gaitan was appointed on Monday morning. He held three conference calls with counsel over the course of the day. At the first he initiated work on scheduling. At the second, learned what witnesses would be available and when, and set a time to begin receiving testimony. During a lengthy third call, he received testimony from one witness for each side. He set a fourth call for 9:30 this morning, Tuesday, January 31, to receive the remaining testimony.
Judge Gaitan indicated from the outset that he intended to meet the Eighth Circuit’s Wednesday noon deadline. But by that moment, the day will already be half gone – depriving the State and the appellate courts of 12 hours that it would otherwise have to resolve any issues relating to the execution.
What makes that situation particularly problematic is not the demand for a hearing, nor the valiant efforts of Judge Gaitan to timely complete that assignment. It is the presence of the stay in place until Friday, February 3 (Application Exhibit N). When Judge Gaitan rules, no matter how he rules,
5

the process will not be over. Even if he rules in the State’s favor – as we expect him to do, for reasons further explained below – the State will be unable to act immediately. The stay will still be in place; the Eighth Circuit will have to act before the State can move. And there is little doubt that someone will bring the matter before this Court.
Litigation on the day before an execution has become, unfortunately, commonplace. But litigation on the day of an execution is a taboo that should not be broken lightly, especially by a district court or a circuit court of appeals. It is hard to imagine that such timing would not affect the ability of the State to meet the requirements of the February 1 warrant, while preserving security and order in the process, and adequately caring for victim’s family, public, and other witnesses.
Standard of Review This Court set forth the standard of review in this situation in Bowersox v. Williams, 517 U.S. 345 (1996).
A stay of execution pending disposition of the second or successive federal habeas petition should be granted only when there are ʺsubstantial grounds upon which relief might be granted. . . . . Entry of a stay on a second or third habeas petition
6

is a drastic measure, and we have held that it is particularly egregious to enter a stay absent substantial grounds for relief.
Id. at 346 (citations and quotation marks omitted). In light of this standard of
review, considering that this case is in a posture comparable to a successive
federal habeas action if not actually now such an action,1 this Court should
vacate the lower courtʹs stay of execution.
Why The Stay Should Be Vacated
Respondent Taylor makes three claims in this case, which he filed as a
§ 1983 action. He first challenges Missouri’s method of lethal injection as
violative of the Eighth Amendment’s ban of cruel and unusual punishments.
1Petitioners do not concede here that the action is properly one under § 1983. Taylor does not claim an individualized harm from the planned means of execution. Rather, his challenge is to Missouri’s method of execution (as illustrated by Taylor’s former co-plaintiff Clay joining Taylor’s case and raising the identical challenges to Missouri’s lethal injection process). Even inNelson v. Campbell, 541 U.S. 637, 644, 124 S. Ct. 2117, 2123 (2004), this Court did not hold that all method-of-execution claims could be pursued as ordinary civil litigation under § 1983. At the least, the order prohibiting respondent Taylor’s execution generally (instead of prohibiting only execution by means of the procedure under challenge) transforms this action into a successive habeas. See 541 U.S. at 647-48, 124 S. Ct. at 2125. Further, as a broad bar to execution by any means, the stay order is also inconsistent with the injunctive relief this Court contemplated as proper in a “means of execution” suit under § 1983. Id. But that issue need not be resolved today as the Court has already granted review in Hill v. Crosby. No. 05-8794 (U.S. S. Ct., Jan 25, 2006), whose effect on this case is discussed below.
7

He next claims that his due process rights under the Fourteenth Amendment will be violated because a physician will assist in preparations for the execution and such assistance by a physician is a violation of medical ethics. Then, he asserts that lethal injection, as performed in Missouri, violates the Thirteenth Amendment in that it constitutes a badge of slavery.
Respondent Taylor cannot succeed on the merits on any of these claims. Missouri’s method and means of administration of lethal injection are not cruel and unusual. The Eighth Amendment prohibits punishments that involve “‘unnecessary and wanton inflictions of pain.’” Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 290 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925 (1976)). It also prohibits those that are inconsistent with “evolving standards of decency that mark the progress of a maturing society.” Estelle, 429 U.S. at 102, 97 S. Ct. at 290 (quoting Trop v. Dulles, 356 U.S. 86, 100‐01, 78 S. Ct. 590, 598 (1958). Any punishment must be consistent with human dignity and comply with current civilized standards. Trop, 356 U.S. at 96‐102, 78 S. Ct. at 597‐98.
8

Missouri is among 37 of the 38 states with the death penalty that use lethal injection as a method of execution. See Cooper v. Rimmer, 379 F.3d 1029, 1032 (9th Cir. 2004). “There is general agreement that lethal injection is at present the most humane type of execution available and many states have abandoned other forms of execution in favor of lethal injection.” Hill v. Lockhart, 791 F. Supp. 1388, 1394 (E.D. Ark. 1992). See also LaGrand v. Lewis, 883 F. Supp. 469, 471 (D. Ariz. 1995) (citing cases that have affirmed the constitutionality of lethal injection), aff’d, 133 F.3d 1253 (9th Cir. 1998), cert. denied, 525 U.S. 971, 119 S. Ct. 422 (1998). Moreover, medical experts have urged that death by lethal injection is more humane than previously used means of execution. See People v. Stewart, 520 N.E.2d 348, 358 (Ill. 1998), cert. denied, 488 U.S. 900, 109 S. Ct. 246 (1988).
In addition to this case law generally finding lethal injection to be a humane method of execution, Missouri’s particular method of lethal injection and means of administering the drugs have recently been found to pass constitutional muster. Johnston v. Crawford, No. 4:04‐CV‐1075 CAS, slip op. at pp. 9‐10 (E.D. Mo. August 26, 2005) (Application Exhibit A; “Johnston slip
9

op.”). Although the Eighth Circuit did not need to rule on the merits of the district court’s grant of summary judgment in Johnston upholding Missouri’s method of lethal injection as a proper means of execution, the Eighth Circuit, en banc, did review the prisoner’s motion for stay of execution, denied the stay, and permitted the execution to proceed. Johnston v. Roper, No. 05‐3353, 421 F.3d 1152 (8th Cir., Sept. 1, 2005) (en banc) (Application Exhibit B); Johnston v. Roper, No. 05‐3353 (8th Cir., Aug. 30, 2005) (panel order) (Bowman, Circuit Judge, dissenting) (Application Exhibit C). In Johnston, the plaintiff raised the same two Eighth Amendment issues Taylor raises here:
(1) There is a significant risk that the sodium pentothal (also called thiopental sodium) administered first in the execution process, either through administration by untrained personnel or due to the amount administered, will not render the condemned prisoner unconscious until his death, with the result that he will be conscious and suffer pain from the administration of pancuronium bromide (also called pavulon), which is the second drug administered and which causes paralysis and suffocation, and of potassium chloride, which is the third drug administered and which causes pain as it
10

goes through the veins before it reaches the heart and stops it. (It was also asserted in Johnston, as here that the paralysis caused by the pancuronium bromide would render the inmate incapable of demonstrating that he was conscious and experiencing pain.) Johnston slip op. at p. 1.
(2) The administration of the three drugs used in the execution process into the femoral vein by means of a triple lumen catheter causes undue pain. Johnston slip op. at p. 7.
With regard to the first claim, Dr. Dershwitz, the defense expert, testified in the Johnston case that the 5 gram dose of sodium pentothal given in Missouri2 would render most people unconscious within a few seconds and that by the time all 5 grams are injected over 99.9999999% of the population would be unconscious. Johnston slip op. at p. 5; Testimony of Dr. Dershwitz (Application Exhibit D), at p. 18; Affidavit of Dr. Dershwitz (Application Exhibit E), at ¶ 8.3 (Dr. Dershwitz also testified to the same effect yesterday
2No changes in the means used in the execution of Johnston are anticipated for the execution of respondent Taylor. Application Exhibit F (Answer to Supplemental Interrogatory No. 18 (p. 2).
3Dr. Dershwitz also explained that “[b]ecause these probability calculations by definition could never be 0 percent on one end or 100 percent on the other, we
11

in the hearing in this case.) The court found that this testimony was essentially unrebutted by Dr. Heath, the plaintiff’s expert, in that he testified only that the dose of sodium pentothal would be insufficient only if it was administered incorrectly. Johnston slip op. at pp. 5‐6. The court also noted that Dr. Heath had conceded in Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005), that a 5 gram dose of sodium pentothal, if administered properly, “would likely be sufficient to cause unconsciousness and probably death prior to the administration of pancuronium bromide.” Slip op. at p. 5 (quoting Beardslee). With regard to the possibility that an error in administration of the drugs could result in a risk of suffering, the court, citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463‐65, 67 S. Ct. 375, 376‐77 (1947), ruled that such a “possibility of human error or accident is insufficient to establish a constitutional violation.” Johnston slip op. at p. 4; see also Johnston slip op. at p. 7. It should also be noted that a 5 gram dose of sodium pentothal is 12.5
end up with probabilities with a lot of nines in them because mathematically you cannot have in this type of calculation 100 percent. But this is practically speaking a dose that guarantees unconsciousness in everybody for a significant period of time.” Exhibit D, at p. 18.
12

times the normal surgical dosage and would render most people unconscious for more than 13 hours. See Beardslee, 395 F. 3d at 1075.
Additionally, the court in Johnston found the doctor and nurse involved in Missouri executions to be qualified. Johnston slip op. at p. 7. The court specifically noted the evidence that the doctor had prepared sodium pentothal (the only one of the three drugs that requires mixing on site) 1000 times and had placed IV central lines 20,000 to 30,000 times. Johnston slip op. at p. 7 n.1. This same doctor is expected to be involved in respondent Taylor’s execution. Defendant Crawford’s Answers to Plaintiffs’ Supplemental Interrogatories (Application Exhibit F), responses to Interrogatory No. 18 (p. 2), No. 22a (p. 8), and 22c (p. 10).
The Johnston court also rejected the claim that administering the drugs through the femoral vein with a triple lumen catheter was improper “because the mere possibility rather than any probability of the infliction of . . . pain, and because the possibility is dependent upon mistakes in the procedure involving accidental punctures and other complications not reasonably
13

foreseeable and not constitutionally relevant.” Johnston slip op. at p. 8.4 The
court then specifically pointed out that the doctor performing the procedure
in Missouri is a board‐certified surgeon and qualified to perform the
procedure. Johnston slip op. at p. 8. See also Application Exhibit F, response
to Supplemental Interrogatory No. 18 (p. 2) and No. 22a (p. 8) (doctor
expected to perform the procedure at Taylor’s execution, who is also doctor
that performed the procedure in the last five executions, is a board‐certified
surgeon).
The court in Johnston granted summary judgment against the prisoner
on the challenge to Missouri’s means of lethal injection, stating:
plaintiff’s proof, even if accepted as true and accurate, is insufficient to establish the Eighth Amendment will be violated by Missouri’s lethal injection protocol. Both qualitatively and quantitatively, the opinions of plaintiff’s expert are inadequate to
4Petitioners Crawford and Purkett also note that one of respondent Taylor’s own experts here, Dr. Heath, provided an affidavit inNelson v. Campbell, 541 U.S. 637, 645-647, 124 S. Ct. 2117, 2124 (2004), that appears to have supported the use of a percutaneous central line as a proper means administration of the drugs in an execution. A percutaneous central line is one inserted by “passage through the skin by needle puncture, including introduction of wires and catheters.” Stedman’s Medical Dictionary 1325 (26th ed. 1995) (definition of percutaneous). This is the type of central line challenged by respondent Taylor as described in the Amended Complaint (Doc. No. 36) in ¶ 73.
14

rationally support a conclusion that his execution as planned carries an unconstitutional risk of the unnecessary and wanton infliction of pain sufficient to violate standards of decency in the context of the purposeful and lawful extinguishment of life. Slip op. at pp. 9‐10. See also Application Exhibit D, at p. 25 (Dr. Dershwitz testified that “I think that if the protocol as described here is implemented, the likelihood that the inmate will experience any suffering is negligible”); Application Exhibit E, at ¶ 5 (Dr. Dershwitz’s opinion that “a condemned inmate who is administered five grams of thiopental sodium will be rendered unconscious, and not experience pain, for the time period necessary to complete the execution”); Application Exhibit E, at ¶¶ 9‐14 (Dr. Dershwitz’s opinions regarding the vanishingly small probabilities that a condemned inmate given a 5 gram dose of thiopental sodium could be conscious, and able to experience any pain associated with the subsequent administration of pancuronium bromide and potassium chloride). The Eighth Amendment claims of respondent Taylor here (even assuming he has a valid individualized method‐of‐execution § 1983 claim under Nelson, 541 U.S. at 644, 124 S. Ct. at 2123) are no different from those already ruled in the Johnston case. Taylor has offered no facts here different
15

than the facts that existed in Johnston, which the court concluded were
insufficient to state a claim as a matter of law.5 In this absence of any
legitimate contention by Taylor contradicting the petitioner prison officials’
demonstration that Missouri’s means of execution does not gratuitously inflict
pain, the stay of execution here should be vacated. Taylor has no chance of
success on the merits of the claim he raises here.
Further, with regard to the Eighth Amendment claims here, petitioners
Crawford and Purkett note that the drugs used in Missouri’s lethal injection
process, have also been approved, either in the context of rulings on the merits
or on requests for injunctive relief or stays, by many other courts. Beardslee,
395 F.3d at 1076
5Johnston’s general approval of Missouri’s lethal injection procedure also precludes any argument by respondent Taylor that the chance of error in his execution could render that procedure constitutionally infirm in his particular case. The Supreme Court has rejected constitutional challenges based on an “‘unforeseeable accident,’ and has presumed that state officials [will act] ‘in a careful and humane manner.’” Beardslee, 395 F.3d at 1075 (quoting Louisiana Ex rel. Francis v. Resweber, 329 U.S. 459, 461-463, 67 S. Ct. 374, 375 & 376 (1947)). “The risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.” Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994); State v. Webb, 750 A.2d 448, 455 (Conn. 2000). See also Cooper, 379 F.3d at 1033; Reid v. Johnson, 333 F. Supp. 2d 543, 551 (E.D. Va. 2004).
16

(denial of stay and injunctive relief); Cooper, 379 F.3d at 1033 (denial of stay and injunctive relief); In re Williams, 359 F.3d 811, 813‐14 (6th Cir. 2004) (denial of stay and injunctive relief); Abdur’Rahman v. Bredesen, 2004 WL 2246227, at *15‐*18 (Tenn. Ct. App., October 6, 2004) (decision on merits), aff’d, 2005 WL 2615801, at *9‐*13 (Tenn. Oct 17, 2005) (affirmed on the merits); Reid v. Johnson, 333 F. Supp. 2d 543, 552‐54 (E.D. Va. 2004) (denial of injunctive relief); Johnson v. State, 827 N.E.2d 547, 552‐53 (Ind. 2005) (denial of post‐ conviction relief); Sims v. State, 754 So. 2d 657, 666‐70 (Fla. 2000) (denial of habeas relief); State v. Webb, 750 A.2d 448, 457 (Conn. 2000) (decision on the merits).
Respondent Taylor’s past contentions that there was no full hearing on the merits in the Johnston case disregards the evidentiary hearing held in that case on August 26, 2005. See Application Exhibit D. Johnston had the opportunity to produce evidence in support of the contention that Missouri’s method of execution would result in the infliction of gratuitous pain and did so fully through documentary evidence. Id. at 5. See also Application Exhibit A (references throughout to opinions of Johnston’s expert). Johnston’s lawyer
17

also had a full and fair opportunity at the hearing to cross‐examine the state’s expert. Application Exhibit D, pp. 34‐54.
Respondent Taylor has not even hinted at any additional evidence that he can produce here to contradict the evidence that the 5 gram dose of sodium pentothal given in Missouri would render most people unconscious within a few seconds and that by the time all 5 grams are injected over 99.9999999% of the population would be unconscious. Application Exhibit A, at p. 5; Testimony of Dr. Dershwitz (Application Exhibit D), at p. 18; Affidavit of Dr. Dershwitz (Application Exhibit E), at ¶ 8.
Respondent Taylor’s past suggestion that the sufficiency of the level of sodium pentothal administered is “belied” by the use of pancuronium bromide to “mask symptoms” of an inadequate level of anesthesia is incorrect. First, in making this point Taylor does not even attempt to refute the evidence of Dr. Dershwitz that 99.9999999% of the population would be unconscious after the administration of the sodium pentothal. Second, petitioners Crawford and Purkett explained the reasons for use of pancuronium bromide in their discovery responses. This drug mitigates the seizure activity and
18

other involuntary bodily movements that will commonly result from use of sodium pentothal and potassium chloride alone and thus will result in a more peaceful, dignified, solemn, and humane death of the condemned prisoner. Application Exhibit F, at pp. 13‐14.
Respondent Taylor has also suggested that there is some contradiction between the prison officials’ own statistics that “death does not occur until after the administration of the third chemical” and “the contrary contention of their expert.” Taylor appears to be perceiving a contradiction between Dr. Dershwitz’s testimony that the administration of 5 grams of sodium pentothal will cause most persons to stop breathing within a minute of drug administration (Application Exhibit E, at ¶ 8) and a table provided in discovery showing that 2 to 5 minutes pass between the time of the injection of the first drug and the time of death (Defendant Crawford’s Supplemental Answer to Plaintiffs’ Interrogatory No. 6n; Application Exhibit J6). As can be seen by the explanation of “Time of Death” in Application Exhibit J, there is
6The initial response to Interrogatory 6n did not include the explanation of “Time of Death” included at the end of the supplemental response. The supplemental response was provided shortly after respondent Taylor raised his contention that the table contradicted Dr. Dershwitz’s testimony.
19

no discrepancy here because death is pronounced based on electrical activity of the heart, not based on when breathing stops.
Physician’s role in executions does not violate due process. Respondent Taylor asserts that his right to due process will be violated if a physician has a role in the execution process because such a role by a physician violates medical ethics and thereby his “legitimate expectation that a physician will not use his or her special skills and position of trust to kill rather than treat.” Amended Complaint, ¶ 84 (Doc. No. 36).
Respondent Taylor cites the Code of Ethics of the American Medical Association to support his claim that physician involvement in the execution process is a breach of medical ethics. Amended Complaint, ¶ 81. But, it is not the AMA Code of Ethics that governs the conduct of physicians in Missouri. See Chapter 334, RSMo (§ 334.100 sets out ethical standards). The petitioner prison officials have searched for, but been unable to find, any interpretation of medical ethics imposed upon physicians in Missouri that would prohibit the physician from having a role in the execution process. A California court, however, has examined this issue with regard to California law and
20

determined that physician involvement in executions does not constitute unprofessional conduct. Thorburn v. Department of Corrections, 78 Cal. Rptr. 2d 584, 590‐91 (Cal. Ct. App. 1998).
Respondent Taylor here fails to establish a premise of his argument – physician involvement in executions is a violation of ethics in Missouri. In fact, such involvement is quite consistent with medical ethics. Physician involvement shows the medical profession’s compassion for all, including those sentenced to death. By their involvement, physicians are promoting the basic medical tenet of easing pain and suffering by doing what they can to make executions as humane as possible.
Even if physician involvement in Missouri executions were prohibited as unethical conduct, respondent Taylor still has not stated a claim. The claim that death sentenced inmates have a “legitimate expectation that a physician will not use his or her special skills and position of trust to kill rather than treat” is incongruous in the context in which it is raised here. Logically, an inmate sentenced to death would have no legitimate expectation that anyone
21

involved in the execution would direct any of his or her skills toward
diminishing the likelihood of death.
Further, as the court in Abdur’Rahman v. Bredesen, 2004 WL 2246227, at
*8 n.45 (Tenn. Ct. App., Oct. 6, 2004), aff’d, 2005 WL 2615801 (Tenn. Oct. 17,
2005), stated:
Were [medical licensing] requirements applicable to executions by lethal injection, the Department’s ability to carry out its statutory mandates would be undermined because many licensed medical professionals would decline to participate in the procedure. It was for this reason that the Tennessee Supreme Court noted that “no public policy is violated by allowing physicians or anyone else to participate in carrying out a lawful sentence.” Coe v. Sundquist, No. M2000‐00897‐SC‐R9‐CV (Tenn. Order Apr. 19, 2000).
2004 WL 2246227, at *9. Where public policy is not violated by a physician
having a role in the execution process (even where such a role might be
inconsistent with the ethical pronouncements of a professional regulating
body), it cannot be said, as respondent Taylor contends, that there is any
legitimate expectation that a physician will not have a role in executions.
Without such a legitimate expectation, Taylor has no due process right that is
22

constitutionally protected. See Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2103‐04 (1979).
Further, at least in the prison disciplinary context, state created liberty interests giving rise to due process rights are generally limited to those that impose “atypical and significant hardship.” Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300 (1995). Respondent Taylor’s claim here that he has some sort of protected right that a physician not have a role in the execution process fails under the Sandin standard because the presence of a physician at his executions will not cause him any hardship at all, much less one that is atypical and significant. The presence of a physician may, on the contrary, be a benefit to Taylor.
Taylor fails to show how even a gross violation of medical ethics violates any legitimate expectation of his that would support a due process claim. He has no likelihood of success on the merits of this claim.
Missouri’s method of lethal execution does not violate the Thirteenth Amendment. Respondent Taylor contends that Missouri’s method of lethal injection constitutes a vestige and badge of slavery and therefore violates the
23

Thirteenth Amendment. Amended Complaint, ¶ 124. The Thirteenth Amendment provides:
Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted shall exist within the United States or any place subject to their jurisdiction. (Emphasis added.) The Thirteenth Amendment does not apply here because this case involves neither slavery nor involuntary servitude. Even if it did, the Amendment specifically makes exception for instances in which a person is being punished for a crime. Respondent Taylor here falls within this exception. See Wendt v. Lynaugh, 841 F.2d 619, 620 (5th Cir. 1988) (plaintiff who has been convicted of a crime in no position to claim a right under the Thirteenth Amendment because exempted by precise words from its application ); Jobson v. Henne, 355 F.2d 129, 131 (2d Cir. 1966) (“Thirteenth Amendment has no bearing on the legality of the imprisonment of persons duly convicted of a crime; such persons are explicitly excepted from the Amendment’s coverage”); Draper v. Rhay, 315 F.2d 193, 197 (9th Cir. 1963) (“Thirteenth Amendment has no application where a person is held to answer fo a violation of a penal statute”).
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Moreover, a difference in treatment based on race is required to establish a claim under the Thirteenth Amendment of imposition of a “badge of slavery.” See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 445, 88 S. Ct. 2186, 2206 (1968). Missouri’s method of execution is used on condemned prisoners of all races. Therefore, it cannot be considered as a “badge of slavery.”
Respondent Taylor also has no likelihood of success on this claim. Effect of Recent Capital Litigation
The recent grant of certiorari in Hill v. Crosby, No. 05‐8794 (U.S. S. Ct., Jan. 25, 2006), does not support Taylor’s argument here that his execution is properly barred. Although the Hill case does arise from claims regarding the constitutionality of Florida’s method of lethal injection, the questions on which certiorari was granted are procedural only and have no bearing on the question here of whether respondent Taylor has established a sufficient basis on which to support an order to prohibit his execution. The questions presented in the petition for certiorari in Hill were:
1. Whether a complaint brought under 42 U.S.C. § 1983 by a death‐sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for
25

carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. Sec. 2254?
2. Whether, under this Court’s decision in Nelson, a challenge to a particular protocol the State plans to use during the execution process constitutes a cognizable claim under 42 U.S.C. § 1983?
Hill v. Crosby Petition for Certiorari, p. i. These questions merely address the
proper procedural vehicle by which to challenge a specific method of
execution. The lower courts in Hill addressed only the question of
jurisdiction, found it wanting, and never considered the means of execution.
Hill v. Crosby, No. 4:06‐CV‐032‐SPM (N.D. Fla., Jan. 21, 2006) (claim denied for
lack of jurisdiction) (copy attached as Exhibit H); Hill v. Crosby, No.06‐10621
(11th Cir., Jan. 24, 2006) (denying stay of execution due to district court’s lack
of jurisdiction to hear case in first instance) (Application Exhibit I). This
Court’s interest in Hill does not appear to arise from any question as to the method of execution,7 but rather from an intent to better define the
7Even if the Court’s interest were the method of execution, it should be noted that the method of execution in Florida provides for the administration of no less than 2 grams of sodium pentothal, Hill v. State, 2006 WL 91302, at footnote 3, while Missouri’s method of execution provides for the administration of 5 grams of that drug. Exhibit D, at p. 12; Exhibit E, at ¶ 4B.
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circumstances in which method of execution claims may be pursued as claims under § 1983, an issue expressly left open in Nelson v. Campbell, 541 U.S. 637, 644, 124 S. Ct. 2117, 2123 (2004).
Here, petitioners and the lower courts have proceeded as if the Hill issue had been decided in Taylor’s favor. And with good reason: The procedural question in Hill was ruled against Crawford and Purkett in the Johnston litigation. Johnston v. Crawford, 2005 WL 1474022, at *2 (W.D. Mo. 2005). Thereafter the prison officials demonstrated at a hearing that the method was humane. Application Exhibits A and D. Petitioners do not concede that the procedural ruling in Johnston was correct. But rather than delay proceeding by arguing against it, they have presented – and now in the expedited proceedings ordered by the Eighth Circuit, recreated – the Johnston record. The conclusion in Johnston that Missouri’s execution process is lawful has not been legitimately challenged by respondent Taylor and is not called into question by the grant of review on the procedural question in Hill.
Even if Taylor is correct that this case properly remains a § 1983 action, the order barring his execution was still an abuse of the court’s discretion. It
27

is an abuse of discretion because the underlying claims here are meritless. Whichever form of action is proper, the stay of Taylor’s execution should be vacated and that execution allowed to proceed.
This view of Hill seems confirmed by this Court’s recent denial of certiorari in Bieghler v. Indiana, No. 05‐8824 (Jan. 26, 2006). Mr. Bieghler raised a claim against the same three‐drug sequence used in executions as does respondent Taylor in this case. Indiana, like Missouri petitioners here, did not rest on a challenge Mr. Bieghler’s use of the § 1983 as a remedial vehicle (Application Exhibit K). The district court declined to enjoin Mr. Bieghler’s execution (Application Exhibit K). The Seventh Circuit, voting 2‐1, ordered a delay in the execution (Application Exhibit L), but this Court overturned that order (Application Exhibit M) and the execution proceeded.
Given where it has led, respondent Taylor’s claim here should have been pursued in a habeas action. But that is not an issue petitioners raise in seeking for vacation of the stay order, because even if this case is properly pursued under § 1983, the order prohibiting Taylor’s execution still constitutes an abuse of discretion. Again, as shown in the Johnston proceedings,
28

discussed above, Missouri provides a humane method of execution that does not inflict any gratuitous pain on the condemned. The showing made by petitioners here goes beyond that shown in the Bieghler proceedings.
This Court’s vacation of the stay entered in Bieghler seems to demonstrate that its grant of certiorari in Hill case was based on a view that there was a need to resolve the question left open in Nelson v. Campbell, 541 U.S. 637, 644, 124 S. Ct. 2117, 2123 (2004), of when a method‐of‐execution claim should be brought in a habeas or civil rights suit. While that issue has been raised here, petitioners have also gone past that issue and established that Missouri’s execution process does not constitute cruel and unusual punishment. Resolution of the questions in Hill will not have any ultimate impact on Taylor’s claims here.
Interests of the Parties and the Public To the extent that the Court considers an assessment of the interests of the parties and the public appropriate here, the balance of those interests favors vacation of the stay of execution. The potential harm to respondent Taylor to be assessed is not whether his death will be the result of his
29

execution, for he asserts that he is not challenging the fact of his death sentence. He is challenging the means of his execution. Thus, the harm to Taylor for the Court to consider here is the harm to him from execution by means of Missouri’s three‐drug process. In other words, will Taylor’s execution as planned cause him significant pain that is unnecessary? See Reid, 333 F. Supp. 2d at 551. As shown above by the decision in Johnston v. Crawford and the testimony of Dr. Dershwitz, respondent Taylor’s execution by Missouri’s three‐drug process is humane and will not result in any significant discomfort.
The harm to others and the public interest that results from an order barring Taylor’s execution on February 1, 2006, is the harm to the family of the victim and the harm to Missouri’s public policy that would result in an interference with the imposition of the just punishment of Taylor. The state of Missouri has determined that the death penalty is appropriate in certain circumstances. Those circumstances were found to exist in this case8 and
8Respondent Taylor and an accomplice kidnapped a 15-year old girl while she was waiting for a school bus, bound and blindfolded the girl, threatened her with death, raped her, put her in the trunk of their car, and then stabbed her repeatedly with kitchen knives. The girl probably lived for 30 minutes after she was stabbed.
30

respondent Taylor was sentenced to death. State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996), cert. denied, 519 U.S. 1152, 117 S. Ct. 1088 (1997). He has now pursued his post‐conviction remedies and his conviction and sentence of death have been approved. States have “a significant interest in meting out a sentence of death in a timely fashion.” Nelson,541 U.S. at 644, 124 S. Ct. at 2123. See also Gomez, 503 U.S. at 654, 112 S. Ct. at 1653; In re Blodgett, 502 U.S. 236, 239, 112 S. Ct. 674, 676 (1992). Stopping Taylor’s execution now, based on unfounded assertions of inhumanity in Missouri’s execution process, would interfere with the victim’s family’s ability to obtain closure and with the state’s policy that crimes such as Taylor’s call for the ultimate punishment.
Conclusion For the foregoing reasons, petitioners pray that this court vacate the court of appealsʹ order granting a stay of execution in Taylor v. Crawford, No. 06‐1278WMJC (8th Cir. Jan. 29, 2006) (Application Exhibit N). By doing so, the Court would not, of course, preclude the entry of a stay by the judge today hearing evidence pursuant to the expedited proceeding ordered by the Eighth State v. Taylor, 929 S.W.2d 209, 214 (Mo. banc 1996), cert. denied, 117 S. Ct. 1088 (1997).
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Circuit, if the record now being developed justified a result different from the ones in Johnston and Bieghler. But it would eliminate the probability that the Missouri Supreme Court’s execution warrant will be effectively erased despite the absence a legitimate, persuasive argument, based on the record, that the choice of execution methods made by Missouri and 37 other states violates constitutional strictures.
Respectfully submitted,
JEREMIAH W. (JAY) NIXON Attorney General
MICHAEL PRITCHETT Assistant Attorney General Missouri Bar No. 33848
STEPHEN HAWKE Assistant Attorney General Missouri Bar No. 35242 P. O. Box 899 Jefferson City, Missouri 65102 Telephone No. (573) 751‐3321 Fax No. (573) 751‐9456
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ATTORNEYS FOR PETITIONERS CRAWFORD AND PURKETT
33

CERTIFICATE OF SERVICE I hereby certify that on this ____ day of January, 2006, I mailed, by United States Mail, and a copy of the foregoing to the following: John W. Simon, Attorney at Law 2683 South Big Bend Boulevard, # 12 St. Louis, MO 63143‐2100
Assistant Attorney General
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 No. 05A695 __________________________
In The SUPREME COURT OF THE UNITED STATES
__________________________
LARRY CRAWFORD, et al.,
Petitioners,
v.
MICHAEL ANTHONY TAYLOR,
Respondent.
__________________________
SUPPLEMENTAL SUGGESTIONS IN OPPOSITION TO APPLICATION TO VACATE STAY OF EXECUTION
__________________________
As set forth in his preliminary suggestions, the respondent, Michael Anthony Taylor, opposes the state petitioners’ application to vacate the stay of execution which the United States Court of Appeals for the Eighth Circuit entered in its Appeal No. 06‐ 1278‐WMJC on Sunday, January 29, 2006. He prays the Court for its order that the pending application to vacate be denied.
At various points the state officials who are petitioners here will be referred to by their procedural posture in the district court, i.e., defendants. Michael Taylor, plaintiff below, is the respondent in this Court as to the state officials’ application to vacate the Eighth Circuit’s stay of execution.

Petitioners would rather hurry along the execution because it is administratively convenient for them rather than to ensure that justice is served. Here, the United States Court of Appeals for the Eighth Circuit has already cut back radically on the preliminary injunction an experienced district judge granted after he had denied the petitioners’ motion to dismiss. It has exercised its discretion to set a schedule that seeks to balance the interests of the parties as it sees them. Without a stay at least through February 3, 2006, the courts would effectively be divested of jurisdiction to resolve the claims. The district court held the claims have legal merit pending development of a record. The Eighth Circuit panel exceeded its discretion in ousting the district judge and committing the cause to a district judge to whom the case was new and ordering him to conduct a hearing immediately and render judgment by noon on February 1, 2006. The least Taylor is entitled to is the opportunity to seek relief should the new district judge deny relief—as the circumstances made virtually certain.
Statement of the Case Since Timothy Johnston filed an action under 42 U.S.C. § 1983 in August 2004, Missouri prisoners under sentence of death have been attempting to litigate claims that the state’s method of conducting lethal injections violates the Eighth Amendment and other federal constitutional provisions. Agents of the State of Missouri have manipulated the judicial process to avoid any resolution on the merits by delaying discovery and other information until the Missouri Supreme Court had set an execution date. These state agents have then gotten the plaintiffs’ claims denied on the basis of defenses other than the merits of their case or in a hearing for which the plaintiff’s

counsel was unable to marshal their evidence because of the late disclosure of the state’s position.
Plaintiff Taylor filed this action on June 3, 2005. At that time, he was within the ninety days in which he could seek certiorari after the Missouri Supreme Court denied his motion to recall the mandate touching his conviction and sentence. He filed a timely petition for writ of certiorari, which was not denied until November 28, 2005.
In this case, the parties have litigated for months over discovery issues. When the defendants sprang radically new information about their execution practices on Timothy Johnson’s counsel a week after the Missouri Supreme Court had set an execution date, counsel in this case incorporated this information into an amended complaint (Attachment 1): in order to attempt to avoid some of the constitutional infirmities in the way everyone had thought Missouri lethal injections had proceeded, the defendants introduced new constitutional violations including a central‐line access when it is not medically indicated and a violation of the Hippocratic Oath and AMA Code of Ethics when the state is supposed to be enforcing rather than violating medical ethics. Defendants’ counsel filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). (Attachment 2) Plaintiffs filed a response, and the defendants filed a reply.
On December 28, 2005, the district court issued an order rejecting the defenses the defendants had raised in their motion to dismiss, and holding that the case presented factual issues which had to be resolved in a hearing or, at least, on summary judgment. (Attachment 3.) The undersigned counsel for Michael Taylor was out‐of‐ state for Christmas with his family on the day the district court issued this order. The

very next day, he faxed a copy of the order, with a cover letter, to Bill Thompson, Staff Attorney (a/k/a Death Clerk), at the Missouri Supreme Court. (Attachment 4.)
On January 3, 2006—the second business day after the undersigned counsel for Michael Taylor faxed the Missouri Supreme Court a copy of this district court’s order holding that the action needed to go forward—the Missouri Supreme Court set a February 1, 2006, execution date.
The next day, counsel filed an application for stay of execution with the Missouri Supreme Court, attaching a copy of the district court’s order. (Attachment 5.) Several days later, counsel received a response from the defendants’ co‐counsel. (Attachment 6.) The next day, January 13, 2005, the undersigned counsel for Michael Taylor filed a reply. (Attachment 7.)
In a telephone conference beginning at 9:51 a.m. on Wednesday, January 18, 2006, the district court informed counsel for all parties that it would set an evidentiary hearing in this matter for February 21, 2006, with the hearing to extend to February 22, 2006, should the district court need a second day to complete taking the evidence in the matter. Counsel were informed that the district court had attempted to schedule the hearing in time to decide the case before February 1, 2006, but that it would have been impossible to do so. Counsel for the defendants presented neither argument or evidence against the district court’s entering the order under discussion, but instead informed the district court that they would seek to overturn any order that their clients’ execution of plaintiff Taylor not proceed according to their schedule.
At 10:34 on January 18, the undersigned counsel for Michael Taylor faxed to the Missouri Supreme Court a supplemental notice in support of his pending application

for a stay from that court. (Attachment 8.) In a subsequent fax to that court, he requested a call on his cellular phone if the clerk had any information to convey in the matter. (Attachment 9.) By the end of the afternoon, he had received no response. Only after giving the Missouri Supreme Court an opportunity to stay its ordered execution or to vacate its execution warrant without prejudice to setting another execution date if the district court ruled against the plaintiffs.
Throughout this litigation and the previous litigation over the Missouri lethal injection procedure, the defendants have asserted in pleadings and affidavits or declarations, and admitted in the discovery they have chosen to respond to, that they use the three‐chemical sequence to which the original complaint was directed and that they also use a central‐line access and a licensed physician, to which the amended complaint was also directed. (E.g., Application to Vacate [filed by defendants in this Court January 20, 2006] Exhibit F at 1‐2 (no change from procedure and practices used to execute Timothy Johnston planned for executions of these plaintiffs) & 6‐7 (use of central‐line access and licensed physician).)
The same day that the district court entered its order requiring the defendants not to execute plaintiff Taylor until further order of the court, with any such order to be issued within a reasonable time after the hearing on February 21 or February 21‐22, the defendants filed a notice of appeal to this Court. (Attachment 10.) On Friday, January 20, 2006, they faxed the Eighth Circuit an “application” to vacate the district court’s preliminary injunction.
On Sunday, January 29, 2006, a panel of the Eighth Circuit issued an order vacating the district judge’s preliminary injunction, a panel of the Eighth Circuit

ordered that the Chief Judge of the district court reassign the section 1983 action to another district judge, and that the latter district judge conduct a hearing immediately and render judgment by noon on Wednesday, February 1, 2006. It issued a stay of execution through 11:59 p.m. on Friday, February 3, 2006.
Respondents, represented by the hundreds of attorneys in the Office of the Attorney General, have both conducted their end of the immediate “hearing,” which was entirely by telephone and excluded over objection several witnesses that the petitioner’s counsel sought to present, and filed an application to vacate the three‐day stay by the Eighth Circuit. Because the Eighth Circuit truncated the section 1983 action beyond recognition, the plaintiff‐intervenor dismissed without prejudice and the intervenor‐application withdrew his application to intervene, leaving the undersigned sole practitioner to handle the immediate hearing in the truncated section 1983 action alone. He has been unable to seek relief from the Eighth Circuit’s defenestration of the experienced district judge who had denied the motion to dismiss and had scheduled a hearing for February 21.
Discussion I. Under the applicable standard of review, Taylor was entitled to have the
Eighth Circuit uphold the preliminary injunction which the district court entered in order to allow it to hear the case adequately. In reliance on the defense which is before this Court on certiorari in Hill v. Crosby, No. 05‐8794, the state petitioners here argue that the standard of review is the same as it would be if Taylor had filed a second or successive federal habeas corpus petition. Application at 5‐6. Nothing could be further from the truth.

A district court’s decision to order parties to maintain the status quo in order to
give it a chance to decide a matter within its jurisdiction is reviewable only for abuse of
discretion. Bell v. Sellevold, 713 F.2d 1396, 1399 (8th Cir. 1983), cert. denied, 464 U.S. 1070
(1984). The standard of review of a district court’s entry of a preliminary injunction is
abuse of discretion. Ashcroft v. Amer. Civil Liberties Union, 542 U.S. 656, 664 (2004). In
Emerson Elec. Co. v. Rogers, 418 F.3d 841, 844 (8th Cir. 2005), the Eighth Circuit
explained: “A district court has broad discretion when ruling on preliminary injunction
requests, and we will reverse only for clearly erroneous factual determinations, an error
of law, or an abuse of discretion. United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179
(8th Cir.1998).” It has amplified on this standard of review, collecting cases, in Aaron v.
Target Corp., 357 F.3d 768, 773‐74 (8th Cir. 2004):
A district court has broad discretion when ruling on a request for preliminary injunction, and it will be reversed only for clearly erroneous factual determinations, an error of law, or an abuse of its discretion. United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir.1998). . . . The abuse of discretion standard means that a court has a “range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Verizon Communications, Inc. v. Inverizon Intʹl, Inc., 295 F.3d 870, 873 (8th Cir.2002) (citing Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir.1984)). An abuse of discretion occurs if a relevant factor that should have been given significant weight is not considered, if an irrelevant or improper factor is considered and given significant weight, or if a court commits a clear error of judgment in the course of weighing proper factors. Id.
Because appellate review of a district court’s issuance of a preliminary injunction
is only for abuse of discretion, an appellate could which might have handled the matter
differently in the first instance “should uphold the injunction” and remand for a
hearing on the merits even ‘[i]f the underlying constitutional question is close.’”
Reproductive Health Services of Planned Parenthood of St. Louis Region, Inc. v. Nixon, 428

F.3d 1139, 1145 (8th Cir. 2004), quoting Ashcroft v. Amer. Civil Liberties Union, 542 U.S. at 664‐65.
II. The district courts’ order—which the defendants and their privies made necessary by seeking and setting an execution date while the case was pending—did not turn this section 1983 complaint into a successive section 2254 petition.
Defendants attempt to shoehorn the district court’s preliminary injunction into 28 U.S.C. § 2254 by arguing that the district court did not specify by what means the defendants could not execute plaintiff Taylor. (AVDCOPE:4‐5.)1 They argue that because the district court forbade them to execute plaintiff Taylor until after its hearing in the case without specifying that the execution would be the kind of execution which they have pleaded and given affidavits that they would use, the whole action ceased to be a civil case under 42 U.S.C. § 1983 and became, instead, a petition under 28 U.S.C. § 2254. That makes no sense, but if it were accepted, the plaintiff could not have brought the action in the first place based on the district court’s response, seven months later, to the defendants’ privy’s setting an execution date immediately after the district court denied a motion to dismiss.
Defendants could have raised this objection in the district court, either in the telephone conference in which all counsel were informed of the district court’s hearing on February 21, or in response to the district court’s solicitation the defendants’ counsel’s review of the order the district court intended to issue. The court’s
1The state officials (petitioners here, defendants in the district court) make mostly the same arguments in this Court for vacating the Eighth Circuit’s stay that they made for vacating the district court’s preliminary injunction. Taylor cites to their pleading in the Eighth Circuit by its initials, “AVDCOPE.”

information was clear that it was not attempting to fine‐tune the state’s execution plans without the benefit of a hearing, and the court indicated that the defendants’ counsel should advise it of any problem they had with the order it directed plaintiff Taylor’s counsel to draft. He, in turn, e‐mailed the draft to counsel for the defendants hours before the district court entered its order. If the defendants thought the order swept beyond the section 1983 action in which the district court issued it, they should have brought this to the attention of the district court rather than sandbagging in the hope that some other body would buy their theory that a court’s action in response to the action by their privy, the Missouri Supreme Court, would recast the entire litigation in order to bring about its dismissal.
The district court’s order makes clear that the order became necessary to resolve the merits of the “pending” litigation, not some other litigation that it was creating in spite of the plaintiffs’ care in pleading their case under section 1983 rather than under section 2254. Plaintiffs are the masters of the action at this level, and have never sought, in this action, relief from their convictions and sentences—or even from execution by lethal injection per se—but only from a form of lethal injection which violates the Constitution of the United States. Not only did the district court make its decision within the context of the action the plaintiffs filed—not the action the defendants wish the plaintiffs had filed—but it could not denature that action if it had tried.
In the context of this case and of the need for preliminary injunctive relief to hold a hearing on the merits, it would have made no sense to have requested, or ordered, preliminary injunctive relief other than the defendants’ simply refraining from executing plaintiff Taylor until after the hearing, scheduled for only a few weeks after

the district court’s denial of the motion to dismiss and only three weeks after the execution date the Missouri Supreme Court set after it had been notified of the dismissal. The alternative would have been for the district court to have ordered the defendants not to execute him using the three‐chemical sequence, the central‐line access, and the licensed physician. Defendants have repeatedly filed pleadings and affidavits and—when they got around to it—discovery responses, indicating that they intend to perform all executions in this manner. (E.g., Exhibit F at 1‐2 & 6‐7, supra.) It would require a hearing to establish that any new form of lethal injection the district court might have ordered rather than simply telling them to hold off on the execution until it could conduct a hearing. If the district court could have held a hearing by February 1, 2006, it would have held the one it has scheduled for February 21. Given the defendants’ unconstitutional response to critiques of their former botched executions, they would most likely have come up with some other alternative to the three‐chemical sequence, central‐line access, and licensed physician which would have been even worse that the status quo from a constitutional and treaty point of view. A federal court order to come up with a new form of lethal injection would actually have been intrusive into the defendants’ activities—whereas corrections personnel in death‐ penalty states know, going in, that there will be times when courts or executives tell them to keep an execution on hold: obeying such orders is part of their expected duties, whereas changing execution protocols and procedures and the substance of the lethal acts themselves at the last minute would be highly unusual. Such an order would not have respected the rights and responsibilities of either the plaintiffs or the defendants,

and no one should be criticized for the fact that the district court’s order proceeded on the more parsimonious path.
In this respect, the defendants are attempting to relitigate the denial of their motion to dismiss about the nature of the action ab initio. It would stand the judicial process on its head to hold that after they have lost on a motion in which they argued that this litigation was “really” a federal habeas corpus action, any court would agree with them because the district court took a modest, limited action which it found necessary to resolve the case on the merits.
Although the plaintiffs do not regard the district court’s order as overbroad, if this Court were to disagree, the remedy would be to remand with instructions rather than to reach back in time and grant, at the appellate level, the motion to dismiss insofar as it pleaded the case was “really” a successive federal habeas corpus action. See, e.g., Reproductive Health Services of Planned Parenthood of St. Louis Region, Inc. v. Nixon, 428 F.3d at 1145‐46. Defendants and their privies should not be allowed to take an interlocutory appeal on the motion to dismiss by setting an execution date in order to force the district court to issue preliminary relief. They do not like the fact that they are losing in the district court, and by setting an execution date after it denied the defendants’ motion to dismiss but before the district court can adjudicate the case on its merits, they are attempting an illegitimate end run.
Although the Court should reject the defendants’ attempt to denature this 1983 action on grounds common to all litigation, in this special area it bears remarking that the plaintiffs could not have raised lethal injection claims in their habeas corpus petitions. Defendants have not disclosed their modus operandi until the discovery in

the Timothy Johnston case—even then, only weeks after the district court issued an order compelling discovery and, to a large extent, after their privies in the Missouri Supreme Court had set an execution date. That court has held a Missouri prisoner cannot litigate claims regarding lethal injection methods and personnel in the forms of state‐court litigation which would be a prerequisite for raising such claims under section 2254. In Worthington v. State, 166 S.W.3d 566, 583 n.3 (Mo. 2005) (en banc), a Missouri condemned person attempted to raise such a claim in his state post‐conviction relief appeal; the state court which sets execution dates held the challenge premature:
As it is unknown what method, if any, of lethal injection may be utilized by the State of Missouri at such future time, if any, as Mr. Worthingtonʹs right to seek relief in state and federal courts is concluded and his execution date and method are set, it is premature for this Court to consider whether a particular method of lethal injection violates the Eighth Amendment because it causes lingering, conscious infliction of unnecessary pain. Not only would the plaintiffs have had no opportunity to raise these claims in the state courts, but at the time they filed their habeas corpus petitions there would be no way of saying what the state’s practices for lethal injection would be. Defendants and their privies have shown time and again that they will not disclose a syllable that would support even a doubt about the efficacy of their procedures and personnel for bringing about a speedy, painless death unless they are under the gun of a federal court and opposing counsel is laboring under an execution warrant, and only then, when broad areas of their belated responses are subject to gag orders which hobble the plaintiffs’ counsel in preparation for hearings. Only through offensive affidavits which the defendants submitted in the Timothy Johnston case did these plaintiffs’ counsel learn that the state uses central‐line access via the femoral vein, and a licensed physician. These facts are key elements of two of the plaintiffs’s causes of action. They

appear to be reactions to botched executions which occurred after or at about the same time that the plaintiffs’ habeas corpus petitions were due; they did not exist within the limitations period for a section 2254 petition, yet the defendants say they are the relevant facts for these plaintiffs’ projected executions.
Unless this Court wishes to make the novel holding that there is no legal or equitable remedy of any kind for a specific execution procedure which violates the Eighth Amendment and other constitutional guaranties, therefore, it follows that because habeas corpus cannot provide a remedy, section 1983 does.
III. Plaintiffs do not challenge lethal injection broadly, but only a narrow band of behavior analogous to the “cut‐down” procedure at issue in Nelson v. Campbell and authoritatively held to sound in section 1983.
What the defendants say they are going to do to the plaintiffs subjects the condemned person to a femoral central line access—an invasive and painful and complicated precursor to execution that is not medically accepted as the first form of IV access. What Missouri does is as invasive as what the Alabama defendants wanted to do to Mr. Nelson—but with less justification, as Mr. Nelson had a bona fide venous‐ access issue, whereas these Missouri defendants have decided that all condemned persons, regardless of their health, will be subjected to the femoral central‐line surgical procedure as a precursor to execution.

IV. The district court’s order acted within its discretion in holding that the Dataphase standard supported the limited preliminary relief which it granted.
A. Defendants’ assertion that the plaintiffs are unlikely to prevail on the merits is an attempt to circumvent the district court’s denial of their motion to dismiss, which pleaded the same premises, and on which the district court found it necessary to set a hearing.
1. Defendants are estopped to argue unlikelihood of prevailing on the merits in light of the fact that they have litigated and lost on their motion to dismiss for failure to state a claim.
From the defendants’ motion to dismiss, the district court was well aware of the history of their treatment of Timothy Johnston’s constitutional grievances. That is undoubtedly one reason it denied the motion to dismiss, scheduled a hearing, and issued a preliminary injunction to permit the hearing to proceed.
Defendants’ reliance on the courts’ actions in the Timothy Johnston case is unsound because this Court did not reach the merits of that plaintiff’s claims and the stay was issued over the district court’s refusal to grant such relief rather than at the district court’s instance. Defendants rely, as well, on a grant of summary judgment against plaintiff Timothy Johnston for their assertion that their method of lethal injections is constitutional. (AVDCOPE:8.) In that case, their counsel withheld discovery in the face of an order compelling it until the Missouri Supreme Court had set an execution date, then sprang new data on Mr. Johnston’s counsel and filed motions for summary judgment and for an expedited hearing. Defendants did not complete their responses to discovery until this Court denied rehearing on the denial of their

petition for a writ of prohibition to keep the district court from requiring them to provide the discovery they had agreed to provide subject to a protective order before the Missouri Supreme Court set an execution date. Mr. Johnston’s counsel was forced to litigate the case with one and a half hands tied behind their backs. It should come as no surprise that they received an adverse holding.
There is no reason why the district court in this case should have deferred to another district court holding rendered under the circumstances of the Johnston holding, instead of setting the case for a hearing at which the defendants would not enjoy the element of surprise which they created by defying a sister court’s order until their privies in the Missouri Supreme Court had set an execution date.
Defendants protestations that the sodium pentothal couldn’t possibly fail to anesthetize the condemned person throughout the execution are belied by their insistence on using pancuronium bromide to mask the symptoms of inadequate or inefficient administration of sodium pentothal.
2. Defendants have failed to show that the state’s use of a licensed physician in violation of medical ethics is constitutionally permissible when the state has undertaken to enforce medical ethics.
In an attempt to obviate the constitutional deficiencies in their lethal‐injection procedure, the defendants have committed yet another constitutional violation. In their application to proceed with an execution before the district court can take evidence on this issue, they make various legal arguments and some amateur medical‐ethics arguments. Far from making it appear that the plaintiff has no likelihood of succeeding on the merits, the defendants’ arguments are practically contradictory in typical “guilty

client” fashion—for example, that a physician can care for a person and kill them at the same time (AVDCOPE:14), and that if this were a prison disciplinary proceeding, the plaintiff would have to show “atypical and significant hardship,” whereas being executed by a physician is neither atypical nor a hardship (AVDCOPE:15‐16). Stating what one does not know (AVDCOPE:14) about medical ethics does not demonstrate that one’s opponent is unlikely to succeed on the merits if one can’t kill the opponent before he gets a hearing.
3. Defendants attempt to recycle the same arguments they used, without effect, in their motion to dismiss to the effect that the use of an unnecessarily painful form of execution is not a badge of slavery.
Once more, the defendants attempt to use the pending “application” as an end run around the district court’s denial of their motion to dismiss.
In this action, the plaintiffs do not claim that the death penalty is a badge of slavery—only that the use of a form of execution which causes unnecessary pain and suffering is a badge of slavery. Defendants to not question the historical evidence the defendants submitted with their original and amended complaints, but argue that if a practice isn’t a carbon copy of chattel slavery, the plaintiffs have no likelihood of prevailing on the merits. That is why we have hearings. The only question is whether this one will go on when the lead plaintiff is six feet under.

B. Defendants beg the question of irreparable harm to plaintiff Taylor by asserting the very propositions of fact and law on which they have lost in the denial of their motion to dismiss and on which the district court has set a hearing for February 21.
Defendants cannot seriously contend that being put to death by a means society does not tolerate for euthanizing animals would be an “irreparable injury.” Because they cannot bring themselves to acknowledge any claim that would cast doubt on their actions, they attempt to meet this point in the Dataphase analysis by asserting that their case is so strong on the merits that an execution by their chosen means couldn’t possibly work an irreparable harm on anyone. That would have been a good argument if the district court had agreed with their motion to dismiss; it is another attempt at an end run in light of the district court’s rejection of it.
Our law is repelled by the notion of hanging in the morning and trying in the afternoon. In light of the fact that the plaintiffs have prevailed on the motion to dismiss, the district court did not abuse its discretion in issuing an order that they may present their case before one of them is rendered unable to proceed with the case because the very means he challenged in it have been used to kill him.
C. Defendants fail to establish that “the harm to other interested parties if the relief is granted” rises to the level to make the district court’s decision an abuse of discretion.
Defendants assert that the decedent’s family will suffer harm if plaintiff Taylor is executed on February 22 or March 1 rather than February 1. (AVDCOPE:18 (talismanic invocation of “closure”).) Assuming the defendant’s suppressed and dubious premise

that the decedent’s want plaintiff Taylor executed at all, the defendants do not suggest that the decedent’s family wants him executed in a manner that will create unnecessary pain and suffering. There is no difference in principle between allowing the district court the minimal amount of time it found that it needs to conduct a hearing on the action filed June 3, 2006, and forbidding the defendants to execute plaintiff Taylor in a way the district court had already found to be unconstitutional. If denying condemned persons a day in court were an acceptable price for “closure,” then no constitutional rights of persons convicted of capital offenses (including those implicating their guilt of the underlying offense) would be safe from the political branches.
D. Defendants’ vague allegations of “the effect on the public interest” of holding a hearing on their method of lethal injection before using in on a litigant who filed his action months before they and their privies set an execution date less than a week after the district denied their motion to dismiss do not rise to the level to make the district court’s decision an abuse of discretion.
Defendants attempt to inject the facts of the underlying offenses as if that justified their infliction of gratuitous pain and suffering on plaintiff Taylor. (AVDCOPE:18 n.8.) They would thereby have this Court sanction a reversal of thousands of years of progress in the criminal law. Although the Supreme Court has allowed the states and the federal government to extract the “mere extinguishment of life,” the presence of unsavory facts in the underlying case is no more a defense to using unnecessarily painful forms of execution than it would be to denying trials altogether because the condemned person did not give the decedent a fair trial.

Boilerplate about the state’s interest in seeing that sentenced be carried out proves too much, in that this Court sees them even when there is absolutely no doubt that an execution cannot go forward according to the executioners’ timetable. In this procedural context, the question is not whether there is absolutely no doubt, but only whether the district court abused its discretion in granting the limited relief it granted.
Recent months have seen a heightened awareness of the issue of torture. In the amended complaint, the plaintiffs invoke the jurisdiction of the district court in part on the basis of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, or Punishment—art. I, ¶ 1, of which defines “torture” as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing him for an act he or a third person has committed or is suspected of having committed . . . or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” (Attachment 1 at 15‐16.) Because the defendants’ use of a form of lethal injection which causes the certainty (at least in respect to the central‐line procedure) or known risk of unnecessary pain and suffering is an official act done for the purpose of punishment, it falls within the definition of “torture” which is most relevant to assessing the harm to the public interest of denying plaintiff Taylor a day in court on his constitutional claims.
In the district court, the plaintiffs pleaded that the public interest militates heavily in favor of an adjudication on the merits of this claim, rather than on letting the defendants avoid it by torturing the plaintiff to death under a chemical veil. Plaintiffs’

action is absolutely neutral about the death penalty, and if the country wants to keep it for the time being, it is most likely to do so if the boil with the habitual three‐chemical sequence is lanced in this action. At the same time, it is not in the public interest for the citizens of all but two lethal‐injection jurisdictions to be implicated in torture when the ostensible purpose of lethal injection is to bring about the “mere extinguishment of life.” The place of the United States in an increasingly interdependent world—in which its mere practice of the death penalty has pro tanto alienated it from all but a few mostly repressive, backward countries including two which our fathers (including the district judge who entered the order here challenged) have fought seriatim throughout the Pacific and then in Korea. It is reasonable to anticipate that when the LANCET article (Lubarsky Exhibit 2 to Plaintiff’s Exhibit 2) has had the effect in Western Europe that it ought to have here, the United States will be substantially impaired in its ability to obtain extradition of those charged with crimes against the United States. That, and not respecting the prerogative of the district court to hold a hearing before signing off on yet another execution, is the appropriate focus of the public interest inquiry.

WHEREFORE, for the foregoing reasons, respondent Taylor prays the Court for its order that the pending application to vacate stay of execution be denied.
Respectfully submitted,

Of Counsel Sindel, Sindel & Noble, P.C.

JOHN WILLIAM SIMON
2683 South Big Bend Blvd. # 12 Saint Louis, Missouri 63143‐2100
(314) 645‐1776 — FAX (314) 645‐2125 simonj@sbcglobal.net
Attorney for Petitioner

 
 No. _________ __________________________
In The SUPREME COURT OF THE UNITED STATES
__________________________ LARRY CRAWFORD, et al.,
Petitioners, v.
MICHAEL ANTHONY TAYLOR, Respondent.
__________________________ SUGGESTIONS IN OPPOSITION TO APPLICATION TO VACATE MODIFIED STAY OF EXECUTION
__________________________ Petitioner state officials seek to have this Court vacate what remains of the stay the court below issued when it forced Taylor to litigate the “hearing” of an action filed June 3, 2005, about how they plan to execute him in roughly two days. This would have the effect that he would have no appellate review of the denial of his action under circumstances in which no plaintiff could possibly have prevailed. See Declaration in Support of Supplemental Suggestions in Opposition to Application to Vacate Stay of Execution (e‐mailed to this Court yesterday at 6:25 p.m. EST). They do so in order to avoid filing a motion for the Missouri Supreme Court to set a new execution date. In light of the ease of performing this task and the certainly of its success, it is more likely that the reason for filing the present application was to

divert Taylor’s counsel from litigating the appeal in the court below when the avowed purpose of the pending application is to deny Taylor any appeal. As they did in their previous application to vacate the stay the court below issued—which had radically cut back on the relief the district judge regularly assigned the case had granted—the petitioner state officials would have this Court apply the standard of review for second or successive habeas corpus petitions. Then, as now, their assertion depends on their argument that the underlying action sounds in 28 U.S.C. § 2254 rather than 42 U.S.C. § 1983, which Taylor has refuted in the district court and refutes again here. This Court has granted a stay and certiorari to consider this question in Hill v. Crosby, No. 05‐8794. As best Taylor’s counsel can tell, that question and another question about federal judicial remedies for lethal injection claims also arise in the Arthur Rutherford matter in which this Court granted at stay of execution at or about 6:00 p.m. EST yesterday.
Petitioner state officials and their privies seek to sweep all such claims under the rug by a combination of arguments that Taylor’s claim is “really” a successive federal habeas corpus claim, or that this Court should not allow him even a few hours to appeal from the district court’s denial of a section 1983 action raising it, when the court below shifted district judges on him and required the new district judge to hold in “immediate” hearing and render judgment by noon on the date set for Taylor’s execution.
Petitioner state officials and their privies have created the supposed time bind on the basis of which they would have now have this Court deny Taylor an opportunity

for any appellate review of the district court’s drumhead denial of relief. As privies of
the State of Missouri, the petitioners here are estopped to complain of any “delay” on
the part of Taylor in bringing his section 1983 action, as their state supreme court
(which sets Missouri execution dates) has held that a Missouri condemned person
cannot seek relief from a method of execution until its specific modalities are
ascertained, which cannot be until shortly before or after the execution. See Worthington
v. State, 166 S.W.3d 566, 583 n.3 (Mo. 2005) (en banc), in which the Missouri Supreme
Court rejected a Missouri condemned person’s challenge to the state’s lethal‐injection
procedure by holding it premature:
As it is unknown what method, if any, of lethal injection may be utilized by the State of Missouri at such future time, if any, as Mr. Worthington’s right to seek relief in state and federal courts is concluded and his execution date and method are set, it is premature for this Court to consider whether a particular method of lethal injection violates the Eighth Amendment because it causes lingering, conscious infliction of unnecessary pain. It is the strategy they have used in the Timothy Johnston case and here: if
someone has a good challenge to their lethal‐injection practices going in federal court,
they set an execution date once the district court denies the motion to dismiss. Someone
should be able to litigate these claims fairly: it should now be Michael Taylor after the
Eighth Circuit or this Court reverses the judgment which the district court entered after
a mere simulacrum of a “hearing.”

In arguing that the action of the district court in conducting a truncated hearing
on the merits of this case should affect the court’s order staying Mr. Taylor’s execution,
the defendants omit significant facts relevant to that hearing.
Pursuant to this court’s order of Sunday, January 29, 2006, the district court
attempted to conduct a hearing on the merits of this matter on Monday, January 30,
2006 and Tuesday, January 31, 2006. The court began proceedings with a telephone
conference at 10:00 a.m. This was approximately two hours after counsel for plaintiff
learned of the order; he had been traveling on January 29, 2006 and did not check his e‐
mail until that morning. During the conference, the court expressed some concern
about the logistics of such a rapid hearing. While the court concluded that it could
conduct a fair hearing within the confines of the time provided by this court, the court
allowed with the defendants’ acquiescence, the intervenor to withdraw. The
intervenor’s motion to dismiss stated, as cause for the dismissal:
Based on their evaluation of their ability to present adequately Mr. Clay’s claims in the hearing contemplated by the court, Mr. Clay’s counsel do not believe that his interests will be served by further participation in this case. He cannot fairly present his claims and evidence to the court in the limited time allowed for the hearing in this matter. Since he is not under execution warrant, he has no need to limit his presentation based on the constraints on Mr. Taylor. His interests are now divergent from those of Mr. Taylor, and he will be prejudiced if he is required to continue as a party to this action. Motion To Dismiss Action Without Prejudice As To Intervenor, Dist. Ct. Doc. 71.

By granting this motion, both the court and the defendants implicitly conceded that a fair hearing was impossible. Further developments made that even clearer. At the initial telephone conference, the district court denied the plaintiffs the right to call the doctor and nurse who have participated in multiple executions pursuant to the protocol proposed by the state in this case. At issue in this case is whether this protocol results in unnecessary and excessive pain and suffering. While not dispositive, it is at least relevant to this issue whether the medical professionals who conduct the execution are alert to the possibility of such pain and suffering during the procedure. It is also relevant whether they have observed symptoms in executed persons which indicate that these persons are suffering discomfort during the procedure. Plaintiff was unable to present this evidence because of the court’s peremptory ruling excluding it. Nor was the plaintiff able to determine whether the qualifications of the medical professionals involved were in fact as the defendant Crawford said they were, because the court refused to provide the plaintiff with the identity of the medical professionals. The court below, in the case of Timothy Johnston v. Larry Crawford et al., denied a writ of prohibition sought by the state and required that the identities be provided to Johnston’s counsel pursuant to a protective order. Mr. Taylor did not even have the benefit of that limited discovery before a final hearing on the merits of his case.
In addition to the inability to present evidence in support of his claim from crucial fact witnesses, the short period provided by the court below and its specially assigned judge prevented Mr. Taylor from presenting evidence from Dr. Sri Melethil,

Ph.D., J.D., a pharmacokineticist. Dr. Melethil had previously consulted with counsel for the plaintiffs’ team and expressed concern about the data on which the opinions of Dr. Mark Dershwitz, the state’s expert, were based. In particular, Dr. Melethil is aware that the rate at which sodium thiopental leaves the brain is greater than that at which it leaves the blood. Dr. Dershwitz’s conclusions were based on blood levels, but it is the brain level which determines whether anesthesia has occurred. Dr. Melethil was out of town and out of touch until the morning of January 31, 2006. Because complete discovery had not been obtained from Dr. Dershwitz, and because of Dr. Melethil’s previous commitments, counsel for Mr. Taylor were unable to provide him with the data he needed to form an expert opinion in this matter.
Taylor’s counsel filed a notice of appeal promptly on receipt of the judgment of the district court. On appeal, the foregoing issues will be presented, as well as the sufficiency of the evidence to support the trial court’s judgment and the propriety of conducting a hearing on the merits of a claim on substantially less than twenty‐four hours notice. The state petitioners make much of the fact that the action has been on file since June 2005. Much of that time has been consumed with discovery disputes and the litigation of a motion to dismiss, which the district judge whom the court below chose to replace had denied on December 28, 2005. These state officials created all of the latter delay; the undersigned is unaware of a day of delay attributable to the plaintiff.
Two business days after the regularly assigned district judge denied the state defendants’ motion to dismiss, the Missouri Supreme Court issued its execution

warrant, before the state had even filed its answer in the district court case. But even if full discovery had been granted, it is highly irregular to set the final trial of a matter without even allowing a full working day for plaintiff’s counsel to prepare.
Petitioner‐defendants present the idea of an appeal in this case as some form of abomination, when in fact it is the expectation of the legal system. The court below has never reached the merits of a lethal‐injection claim. Petitioner‐defendants intend to keep it that way by manipulating the judicial system to deny the most vulnerable of their citizens a day in court. This Court has made clear in Nelson and in its disposition of stay applications over the past several days that that is not its position, especially where, as here, there is a precursor medical procedure involved which is unnecessary to bring about the “mere extinguishment of life,” and the only question is how much unnecessary pain it causes rather than whether it causes any at all.
On appeal, it is likely that the judgment of the district court will be overturned. First, the exclusion of testimony from medical personnel who actually witness executions clearly violated Fed. R. Evid. 401. While a district court’s rulings on exclusion of evidence are reviewed for abuse of discretion, such abuse occurs when the court bases “its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990), cited in Beck v. Haik, 377 F.3d 624 (6th Cir. 2004). Under Fed. R. Evid. 401, “’relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Here, the issue is whether the mode of execution employed by the State of Missouri causes unconstitutional pain and suffering. To hold that testimony by medical personnel (trained observers of symptoms) who actually participate in the execution is irrelevant to this determination flies in the face of the expansive language of Rule 401. In Beck v. Haik, 377 F.3d 624 (6th Cir. 2004), the court reversed the judgment on the grounds that the trial court improperly excluded both expert evidence bearing on a contested issue, and a letter which the court held “would clearly support one of the plaintiffsʹ main theories of the case.” Beck v. Haik, 377 F.3d at 637‐38. The court held that the cumulative effect of these errors was prejudicial, and reversed the judgment.
This case is also similar to Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1987), where the judgment was reversed after the trial court sustained the defendants’ motions in limine and excluded much of the plaintiff’s evidence. The court noted, “[A]s the judge’s discretion was exercised on a wholesale basis before trial began, rather than in response to the developing course of the trial, careful appellate review is necessary to make sure the judge did not truncate the trial prematurely.” Since the state in this case presented no evidence as to the lack of pain and suffering during the execution process, and presented no witnesses who had personally observed the process in Missouri, the plaintiff’s lack of opportunity to explore this area is even more serious.
Second, the lack of notice of the hearing also deprived the plaintiff of the ability to prove his claim. The situation, while somewhat unique, is similar to the denial of a

continuance, and can be examined using the same standards. At the close of the hearing, plaintiff’s counsel attempted to make an offer of proof to the court of the information he was seeking from his expert, Dr. Melethil, but could not do so because of the time‐pressure created by the January 29, 2006, order of the court below and Dr. Melethil’s absence from the state. Because this expert has not yet been able to obtain this data, he is unable to be more specific about his opinion. It should be noted, however, that Dr. Dershwitz did not testify concerning this data, although his testimony was presented in support of the defendants’ case.
History of the Case Since Timothy Johnston filed an action under 42 U.S.C. § 1983 in August 2004, Missouri prisoners under sentence of death have been attempting to litigate claims that the state’s method of conducting lethal injections violates the Eighth Amendment and other federal constitutional provisions. Agents of the State of Missouri have manipulated the judicial process to avoid any resolution on the merits by delaying discovery and other information until the Missouri Supreme Court had set an execution date. These state agents have then gotten the plaintiffs’ claims denied on the basis of defenses other than the merits of their case or in a hearing for which the plaintiff’s counsel was unable to marshal their evidence because of the late disclosure of the state’s position. Plaintiff Taylor filed this action on June 3, 2005. At that time, he was within the ninety days in which he could seek certiorari after the Missouri Supreme Court denied

his motion to recall the mandate touching his conviction and sentence. He filed a timely petition for writ of certiorari, which was not denied until November 28, 2005.
In this case, the parties have litigated for months over discovery issues. When the defendants sprang radically new information about their execution practices on Timothy Johnson’s counsel a week after the Missouri Supreme Court had set an execution date, counsel in this case incorporated this information into an amended complaint (Attachment 1): in order to attempt to avoid some of the constitutional infirmities in the way everyone had thought Missouri lethal injections had proceeded, the defendants introduced new constitutional violations including a central‐line access when it is not medically indicated and a violation of the Hippocratic Oath and AMA Code of Ethics when the state is supposed to be enforcing rather than violating medical ethics. Defendants’ counsel filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). (Attachment 2) Plaintiffs filed a response, and the defendants filed a reply.
On December 28, 2005, the district court issued an order rejecting the defenses the defendants had raised in their motion to dismiss, and holding that the case presented factual issues which had to be resolved in a hearing or, at least, on summary judgment. (Attachment 3.) The undersigned counsel for Michael Taylor was out‐of‐ state for Christmas with his family on the day the district court issued this order. The very next day, he faxed a copy of the order, with a cover letter, to Bill Thompson, Staff Attorney (a/k/a Death Clerk), at the Missouri Supreme Court. (Attachment 4.)
On January 3, 2006—the second business day after the undersigned counsel for Michael Taylor faxed the Missouri Supreme Court a copy of this district court’s order

holding that the action needed to go forward—the Missouri Supreme Court set a February 1, 2006, execution date.
The next day, counsel filed an application for stay of execution with the Missouri Supreme Court, attaching a copy of the district court’s order. (Attachment 5.) Several days later, counsel received a response from the defendants’ co‐counsel. (Attachment 6.) The next day, January 13, 2005, the undersigned counsel for Michael Taylor filed a reply. (Attachment 7.)
In a telephone conference beginning at 9:51 a.m. on Wednesday, January 18, 2006, the district court informed counsel for all parties that it would set an evidentiary hearing in this matter for February 21, 2006, with the hearing to extend to February 22, 2006, should the district court need a second day to complete taking the evidence in the matter. Counsel were informed that the district court had attempted to schedule the hearing in time to decide the case before February 1, 2006, but that it would have been impossible to do so. Counsel for the defendants presented neither argument or evidence against the district court’s entering the order under discussion, but instead informed the district court that they would seek to overturn any order that their clients’ execution of plaintiff Taylor not proceed according to their schedule.
At 10:34 on January 18, the undersigned counsel for Michael Taylor faxed to the Missouri Supreme Court a supplemental notice in support of his pending application for a stay from that court. (Attachment 8.) In a subsequent fax to that court, he requested a call on his cellular phone if the clerk had any information to convey in the matter. (Attachment 9.) By the end of the afternoon, he had received no response. Only after giving the Missouri Supreme Court an opportunity to stay its ordered

execution or to vacate its execution warrant without prejudice to setting another execution date if the district court ruled against the plaintiffs.
Throughout this litigation and the previous litigation over the Missouri lethal injection procedure, the defendants have asserted in pleadings and affidavits or declarations, and admitted in the discovery they have chosen to respond to, that they use the three‐chemical sequence to which the original complaint was directed and that they also use a central‐line access and a licensed physician, to which the amended complaint was also directed. (E.g., Application to Vacate [filed by defendants in this Court January 20, 2006] Exhibit F at 1‐2 (no change from procedure and practices used to execute Timothy Johnston planned for executions of these plaintiffs) & 6‐7 (use of central‐line access and licensed physician).)
The same day that the district court entered its order requiring the defendants not to execute plaintiff Taylor until further order of the court, with any such order to be issued within a reasonable time after the hearing on February 21 or February 21‐22, the defendants filed a notice of appeal to this Court. (Attachment 10.) On Friday, January 20, 2006, they faxed the Eighth Circuit an “application” to vacate the district court’s preliminary injunction.
On Sunday, January 29, 2006, a panel of the Eighth Circuit issued an order vacating the district judge’s preliminary injunction, a panel of the Eighth Circuit ordered that the Chief Judge of the district court reassign the section 1983 action to another district judge, and that the latter district judge conduct a hearing immediately and render judgment by noon on Wednesday, February 1, 2006. It issued a stay of execution through 11:59 p.m. on Friday, February 3, 2006.

Respondents, represented by the hundreds of attorneys in the Office of the Attorney General, have both conducted their end of the immediate “hearing,” which was entirely by telephone and excluded over objection several witnesses that the petitioner’s counsel sought to present, and filed an application to vacate the three‐day stay by the Eighth Circuit. Because the Eighth Circuit truncated the section 1983 action beyond recognition, the plaintiff‐intervenor dismissed without prejudice and the intervenor‐application withdrew his application to intervene, leaving the undersigned sole practitioner to handle the immediate hearing in the truncated section 1983 action alone. He has been unable to seek relief from the Eighth Circuit’s defenestration of the experienced district judge who had denied the motion to dismiss and had scheduled a hearing for February 21. See Declaration in Support of Supplemental Suggestions in Opposition to Motion to Vacate Stay of Execution filed yesterday at 6:25 p.m. EST.
Discussion I. Under the applicable standard of review, Taylor was entitled to have the
Eighth Circuit uphold the preliminary injunction which the district court entered in order to allow it to hear the case adequately; a fortiori, the pending application to vacate any stay at all should be denied. In reliance on the defense which is before this Court on certiorari in Hill v. Crosby, No. 05‐8794, the state petitioners here argue that the standard of review is the same as it would be if Taylor had filed a second or successive federal habeas corpus petition. Application at 5‐6. Nothing could be further from the truth. A district court’s decision to order parties to maintain the status quo in order to give it a chance to decide a matter within its jurisdiction is reviewable only for abuse of discretion. Bell v. Sellevold, 713 F.2d 1396, 1399 (8th Cir. 1983), cert. denied, 464 U.S. 1070 (1984). The standard of review of a district court’s entry of a preliminary injunction is

abuse of discretion. Ashcroft v. Amer. Civil Liberties Union, 542 U.S. 656, 664 (2004). In
Emerson Elec. Co. v. Rogers, 418 F.3d 841, 844 (8th Cir. 2005), the Eighth Circuit
explained: “A district court has broad discretion when ruling on preliminary injunction
requests, and we will reverse only for clearly erroneous factual determinations, an error
of law, or an abuse of discretion. United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179
(8th Cir.1998).” It has amplified on this standard of review, collecting cases, in Aaron v.
Target Corp., 357 F.3d 768, 773‐74 (8th Cir. 2004):
A district court has broad discretion when ruling on a request for preliminary injunction, and it will be reversed only for clearly erroneous factual determinations, an error of law, or an abuse of its discretion. United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir.1998). . . . The abuse of discretion standard means that a court has a “range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Verizon Communications, Inc. v. Inverizon Intʹl, Inc., 295 F.3d 870, 873 (8th Cir.2002) (citing Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir.1984)). An abuse of discretion occurs if a relevant factor that should have been given significant weight is not considered, if an irrelevant or improper factor is considered and given significant weight, or if a court commits a clear error of judgment in the course of weighing proper factors. Id.
Because appellate review of a district court’s issuance of a preliminary injunction
is only for abuse of discretion, an appellate could which might have handled the matter
differently in the first instance “should uphold the injunction” and remand for a
hearing on the merits even ‘[i]f the underlying constitutional question is close.’”
Reproductive Health Services of Planned Parenthood of St. Louis Region, Inc. v. Nixon, 428
F.3d 1139, 1145 (8th Cir. 2004), quoting Ashcroft v. Amer. Civil Liberties Union, 542 U.S. at
664‐65.
The only way the petitioner state officials could possibly justify the use of the
standard of review they advocate is by persuading the Court of their longstanding
argument that this action is “really” a petition under 28 U.S.C. § 2254 rather an action

under 42 U.S.C. § 1983. But the district courts’ order—which the defendants and their privies made necessary by seeking and setting an execution date while the case was pending—did not turn this section 1983 complaint into a successive section 2254 petition.
Defendants attempt to shoehorn the district court’s preliminary injunction into 28 U.S.C. § 2254 by arguing that the district court did not specify by what means the defendants could not execute plaintiff Taylor. (AVDCOPE:4‐5.)1 They argue that because the district court forbade them to execute plaintiff Taylor until after its hearing in the case without specifying that the execution would be the kind of execution which they have pleaded and given affidavits that they would use, the whole action ceased to be a civil case under 42 U.S.C. § 1983 and became, instead, a petition under 28 U.S.C. § 2254. That makes no sense, but if it were accepted, the plaintiff could not have brought the action in the first place based on the district court’s response, seven months later, to the defendants’ privy’s setting an execution date immediately after the district court denied a motion to dismiss.
Defendants could have raised this objection in the district court, either in the telephone conference in which all counsel were informed of the district court’s hearing on February 21, or in response to the district court’s solicitation the defendants’ counsel’s review of the order the district court intended to issue. The court’s information was clear that it was not attempting to fine‐tune the state’s execution plans
1The state officials (petitioners here, defendants in the district court) make mostly the same arguments in this Court for vacating the Eighth Circuit’s stay that they made for vacating the district court’s preliminary injunction. Taylor cites to their pleading in the Eighth Circuit by its initials, “AVDCOPE.”

without the benefit of a hearing, and the court indicated that the defendants’ counsel should advise it of any problem they had with the order it directed plaintiff Taylor’s counsel to draft. He, in turn, e‐mailed the draft to counsel for the defendants hours before the district court entered its order. If the defendants thought the order swept beyond the section 1983 action in which the district court issued it, they should have brought this to the attention of the district court rather than sandbagging in the hope that some other body would buy their theory that a court’s action in response to the action by their privy, the Missouri Supreme Court, would recast the entire litigation in order to bring about its dismissal.
The district court’s order makes clear that the order became necessary to resolve the merits of the “pending” litigation, not some other litigation that it was creating in spite of the plaintiffs’ care in pleading their case under section 1983 rather than under section 2254. Plaintiffs are the masters of the action at this level, and have never sought, in this action, relief from their convictions and sentences—or even from execution by lethal injection per se—but only from a form of lethal injection which violates the Constitution of the United States. Not only did the district court make its decision within the context of the action the plaintiffs filed—not the action the defendants wish the plaintiffs had filed—but it could not denature that action if it had tried.
In the context of this case and of the need for preliminary injunctive relief to hold a hearing on the merits, it would have made no sense to have requested, or ordered, preliminary injunctive relief other than the defendants’ simply refraining from executing plaintiff Taylor until after the hearing, scheduled for only a few weeks after the district court’s denial of the motion to dismiss and only three weeks after the

execution date the Missouri Supreme Court set after it had been notified of the dismissal. The alternative would have been for the district court to have ordered the defendants not to execute him using the three‐chemical sequence, the central‐line access, and the licensed physician. Defendants have repeatedly filed pleadings and affidavits and—when they got around to it—discovery responses, indicating that they intend to perform all executions in this manner. (E.g., Exhibit F at 1‐2 & 6‐7, supra.) It would require a hearing to establish that any new form of lethal injection the district court might have ordered rather than simply telling them to hold off on the execution until it could conduct a hearing. If the district court could have held a hearing by February 1, 2006, it would have held the one it has scheduled for February 21. Given the defendants’ unconstitutional response to critiques of their former botched executions, they would most likely have come up with some other alternative to the three‐chemical sequence, central‐line access, and licensed physician which would have been even worse that the status quo from a constitutional and treaty point of view. A federal court order to come up with a new form of lethal injection would actually have been intrusive into the defendants’ activities—whereas corrections personnel in death‐ penalty states know, going in, that there will be times when courts or executives tell them to keep an execution on hold: obeying such orders is part of their expected duties, whereas changing execution protocols and procedures and the substance of the lethal acts themselves at the last minute would be highly unusual. Such an order would not have respected the rights and responsibilities of either the plaintiffs or the defendants, and no one should be criticized for the fact that the district court’s order proceeded on the more parsimonious path.

In this respect, the defendants are attempting to relitigate the denial of their motion to dismiss about the nature of the action ab initio. It would stand the judicial process on its head to hold that after they have lost on a motion in which they argued that this litigation was “really” a federal habeas corpus action, any court would agree with them because the district court took a modest, limited action which it found necessary to resolve the case on the merits.
Although the plaintiffs do not regard the district court’s order as overbroad, if this Court were to disagree, the remedy would be to remand with instructions rather than to reach back in time and grant, at the appellate level, the motion to dismiss insofar as it pleaded the case was “really” a successive federal habeas corpus action. See, e.g., Reproductive Health Services of Planned Parenthood of St. Louis Region, Inc. v. Nixon, 428 F.3d at 1145‐46. Defendants and their privies should not be allowed to take an interlocutory appeal on the motion to dismiss by setting an execution date in order to force the district court to issue preliminary relief. They do not like the fact that they are losing in the district court, and by setting an execution date after it denied the defendants’ motion to dismiss but before the district court can adjudicate the case on its merits, they are attempting an illegitimate end run.
Although the Court should reject the defendants’ attempt to denature this 1983 action on grounds common to all litigation, in this special area it bears remarking that the plaintiffs could not have raised lethal injection claims in their habeas corpus petitions. Defendants have not disclosed their modus operandi until the discovery in the Timothy Johnston case—even then, only weeks after the district court issued an order compelling discovery and, to a large extent, after their privies in the Missouri

Supreme Court had set an execution date. That court has held a Missouri prisoner cannot litigate claims regarding lethal injection methods and personnel in the forms of state‐court litigation which would be a prerequisite for raising such claims under section 2254. In Worthington v. State, 166 S.W.3d 566, 583 n.3 (Mo. 2005) (en banc), a Missouri condemned person attempted to raise such a claim in his state post‐conviction relief appeal; the state court which sets execution dates held the challenge premature:
As it is unknown what method, if any, of lethal injection may be utilized by the State of Missouri at such future time, if any, as Mr. Worthingtonʹs right to seek relief in state and federal courts is concluded and his execution date and method are set, it is premature for this Court to consider whether a particular method of lethal injection violates the Eighth Amendment because it causes lingering, conscious infliction of unnecessary pain. Not only would the plaintiffs have had no opportunity to raise these claims in the state courts, but at the time they filed their habeas corpus petitions there would be no way of saying what the state’s practices for lethal injection would be. Defendants and their privies have shown time and again that they will not disclose a syllable that would support even a doubt about the efficacy of their procedures and personnel for bringing about a speedy, painless death unless they are under the gun of a federal court and opposing counsel is laboring under an execution warrant, and only then, when broad areas of their belated responses are subject to gag orders which hobble the plaintiffs’ counsel in preparation for hearings. Only through offensive affidavits which the defendants submitted in the Timothy Johnston case did these plaintiffs’ counsel learn that the state uses central‐line access via the femoral vein, and a licensed physician. These facts are key elements of two of the plaintiffs’s causes of action. They appear to be reactions to botched executions which occurred after or at about the same time that the plaintiffs’ habeas corpus petitions were due; they did not exist within the

limitations period for a section 2254 petition, yet the defendants say they are the relevant facts for these plaintiffs’ projected executions.
Unless this Court wishes to make the novel holding that there is no legal or equitable remedy of any kind for a specific execution procedure which violates the Eighth Amendment and other constitutional guaranties, therefore, it follows that because habeas corpus cannot provide a remedy, section 1983 does.
II. Plaintiffs do not challenge lethal injection broadly, but only a narrow band of behavior analogous to the “cut‐down” procedure at issue in Nelson v. Campbell and authoritatively held to sound in section 1983.
What the defendants say they are going to do to the plaintiffs subjects the condemned person to a femoral central line access—an invasive and painful and complicated precursor to execution that is not medically accepted as the first form of IV access. What Missouri does is as invasive as what the Alabama defendants wanted to do to Mr. Nelson—but with less justification, as Mr. Nelson had a bona fide venous‐ access issue, whereas these Missouri defendants have decided that all condemned persons, regardless of their health, will be subjected to the femoral central‐line surgical procedure as a precursor to execution.

III. The district court’s order acted within its discretion in holding that the Dataphase standard supported the limited preliminary relief which it granted.
A. Defendants’ assertion that the plaintiffs are unlikely to prevail on the merits is an attempt to circumvent the district court’s denial of their motion to dismiss, which pleaded the same premises, and on which the district court found it necessary to set a hearing.
1. Defendants are estopped to argue unlikelihood of prevailing on the merits in light of the fact that they have litigated and lost on their motion to dismiss for failure to state a claim.
State official petitioners (defendants in the district court) cite numerous cases upholding lethal injection generally or the three‐chemical sequence on a variety of factual arrays as if they somehow doom Taylor’s claim as a matter of law. Nothing could be further from the truth, as the district court’s denial of the motion to dismiss and the grudging admission by the court below that some semblance of a hearing was necessary. Petitioner‐defendants cite no case involving a femoral line access. That is a precursor operation, without medical necessity except in the case of lifelong intravenous drug abusers without an adequate venous system, which makes this case like Nelson v. Campbell and unlike the plain‐vanilla three‐chemical cases on which the state relies for its headnote law.
From the defendants’ motion to dismiss, the district court was well aware of the history of their treatment of Timothy Johnston’s constitutional grievances. That is undoubtedly one reason it denied the motion to dismiss, scheduled a hearing, and issued a preliminary injunction to permit the hearing to proceed.

Defendants’ reliance on the courts’ actions in the Timothy Johnston case is unsound because this Court did not reach the merits of that plaintiff’s claims and the stay was issued over the district court’s refusal to grant such relief rather than at the district court’s instance. Defendants rely, as well, on a grant of summary judgment against plaintiff Timothy Johnston for their assertion that their method of lethal injections is constitutional. (AVDCOPE:8.) In that case, their counsel withheld discovery in the face of an order compelling it until the Missouri Supreme Court had set an execution date, then sprang new data on Mr. Johnston’s counsel and filed motions for summary judgment and for an expedited hearing. Defendants did not complete their responses to discovery until this Court denied rehearing on the denial of their petition for a writ of prohibition to keep the district court from requiring them to provide the discovery they had agreed to provide subject to a protective order before the Missouri Supreme Court set an execution date. Mr. Johnston’s counsel was forced to litigate the case with one and a half hands tied behind their backs. It should come as no surprise that they received an adverse holding.
There is no reason why the district court in this case should have deferred to another district court holding rendered under the circumstances of the Johnston holding, instead of setting the case for a hearing at which the defendants would not enjoy the element of surprise which they created by defying a sister court’s order until their privies in the Missouri Supreme Court had set an execution date.
Defendants protestations that the sodium pentothal couldn’t possibly fail to anesthetize the condemned person throughout the execution are belied by their

insistence on using pancuronium bromide to mask the symptoms of inadequate or inefficient administration of sodium pentothal.
2. Defendants have failed to show that the state’s use of a licensed physician in violation of medical ethics is constitutionally permissible when the state has undertaken to enforce medical ethics.
In an attempt to obviate the constitutional deficiencies in their lethal‐injection procedure, the defendants have committed yet another constitutional violation. In their application to proceed with an execution before the district court can take evidence on this issue, they make various legal arguments and some amateur medical‐ethics arguments. Far from making it appear that the plaintiff has no likelihood of succeeding on the merits, the defendants’ arguments are practically contradictory in typical “guilty client” fashion—for example, that a physician can care for a person and kill them at the same time (AVDCOPE:14), and that if this were a prison disciplinary proceeding, the plaintiff would have to show “atypical and significant hardship,” whereas being executed by a physician is neither atypical nor a hardship (AVDCOPE:15‐16). Stating what one does not know (AVDCOPE:14) about medical ethics does not demonstrate that one’s opponent is unlikely to succeed on the merits if one can’t kill the opponent before he gets a hearing.
3. Defendants attempt to recycle the same arguments they used, without effect, in their motion to dismiss to the effect that the use of an unnecessarily painful form of execution is not a badge of slavery.
Once more, the defendants attempt to use the pending “application” as an end run around the district court’s denial of their motion to dismiss.

In this action, the plaintiffs do not claim that the death penalty is a badge of slavery—only that the use of a form of execution which causes unnecessary pain and suffering is a badge of slavery. Defendants to not question the historical evidence the defendants submitted with their original and amended complaints, but argue that if a practice isn’t a carbon copy of chattel slavery, the plaintiffs have no likelihood of prevailing on the merits. That is why we have hearings. The only question is whether this one will go on when the lead plaintiff is six feet under.
B. Defendants beg the question of irreparable harm to plaintiff Taylor by asserting the very propositions of fact and law on which they have lost in the denial of their motion to dismiss and on which the district court has set a hearing for February 21.
Defendants cannot seriously contend that being put to death by a means society does not tolerate for euthanizing animals would be an “irreparable injury.” Because they cannot bring themselves to acknowledge any claim that would cast doubt on their actions, they attempt to meet this point in the Dataphase analysis by asserting that their case is so strong on the merits that an execution by their chosen means couldn’t possibly work an irreparable harm on anyone. That would have been a good argument if the district court had agreed with their motion to dismiss; it is another attempt at an end run in light of the district court’s rejection of it.
Our law is repelled by the notion of hanging in the morning and trying in the afternoon. In light of the fact that the plaintiffs have prevailed on the motion to dismiss, the district court did not abuse its discretion in issuing an order that they may present

their case before one of them is rendered unable to proceed with the case because the very means he challenged in it have been used to kill him.
C. Defendants fail to establish that “the harm to other interested parties if the relief is granted” rises to the level to make the district court’s decision an abuse of discretion.
Defendants assert that the decedent’s family will suffer harm if plaintiff Taylor is executed on February 22 or March 1 rather than February 1. (AVDCOPE:18 (talismanic invocation of “closure”).) Assuming the defendant’s suppressed and dubious premise that the decedent’s want plaintiff Taylor executed at all, the defendants do not suggest that the decedent’s family wants him executed in a manner that will create unnecessary pain and suffering. There is no difference in principle between allowing the district court the minimal amount of time it found that it needs to conduct a hearing on the action filed June 3, 2006, and forbidding the defendants to execute plaintiff Taylor in a way the district court had already found to be unconstitutional. If denying condemned persons a day in court were an acceptable price for “closure,” then no constitutional rights of persons convicted of capital offenses (including those implicating their guilt of the underlying offense) would be safe from the political branches.

D. Defendants’ vague allegations of “the effect on the public interest” of holding a hearing on their method of lethal injection before using in on a litigant who filed his action months before they and their privies set an execution date less than a week after the district denied their motion to dismiss do not rise to the level to make the district court’s decision an abuse of discretion.
Defendants attempt to inject the facts of the underlying offenses as if that justified their infliction of gratuitous pain and suffering on plaintiff Taylor. (AVDCOPE:18 n.8.) They would thereby have this Court sanction a reversal of thousands of years of progress in the criminal law. Although the Supreme Court has allowed the states and the federal government to extract the “mere extinguishment of life,” the presence of unsavory facts in the underlying case is no more a defense to using unnecessarily painful forms of execution than it would be to denying trials altogether because the condemned person did not give the decedent a fair trial.
Boilerplate about the state’s interest in seeing that sentenced be carried out proves too much, in that this Court sees them even when there is absolutely no doubt that an execution cannot go forward according to the executioners’ timetable. In this procedural context, the question is not whether there is absolutely no doubt, but only whether the district court abused its discretion in granting the limited relief it granted.
Recent months have seen a heightened awareness of the issue of torture. In the amended complaint, the plaintiffs invoke the jurisdiction of the district court in part on the basis of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, or Punishment—art. I, ¶ 1, of which defines “torture” as “any act by which severe pain or suffering, whether physical or mental, is intentionally

inflicted on a person for such purposes as . . . punishing him for an act he or a third person has committed or is suspected of having committed . . . or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” (Attachment 1 at 15‐16.) Because the defendants’ use of a form of lethal injection which causes the certainty (at least in respect to the central‐line procedure) or known risk of unnecessary pain and suffering is an official act done for the purpose of punishment, it falls within the definition of “torture” which is most relevant to assessing the harm to the public interest of denying plaintiff Taylor a day in court on his constitutional claims.
In the district court, the plaintiffs pleaded that the public interest militates heavily in favor of an adjudication on the merits of this claim, rather than on letting the defendants avoid it by torturing the plaintiff to death under a chemical veil. Plaintiffs’ action is absolutely neutral about the death penalty, and if the country wants to keep it for the time being, it is most likely to do so if the boil with the habitual three‐chemical sequence is lanced in this action. At the same time, it is not in the public interest for the citizens of all but two lethal‐injection jurisdictions to be implicated in torture when the ostensible purpose of lethal injection is to bring about the “mere extinguishment of life.” The place of the United States in an increasingly interdependent world—in which its mere practice of the death penalty has pro tanto alienated it from all but a few mostly repressive, backward countries including two which our fathers (including the district judge who entered the order here challenged) have fought seriatim throughout the Pacific and then in Korea. It is reasonable to anticipate that when the LANCET article

(Lubarsky Exhibit 2 to Plaintiff’s Exhibit 2) has had the effect in Western Europe that it ought to have here, the United States will be substantially impaired in its ability to obtain extradition of those charged with crimes against the United States. That, and not respecting the prerogative of the district court to hold a hearing before signing off on yet another execution, is the appropriate focus of the public interest inquiry.

WHEREFORE, for the foregoing reasons, respondent Taylor prays the Court for its order that the pending application to vacate stay of execution be denied.
Respectfully submitted,

Of Counsel Sindel, Sindel & Noble, P.C.

JOHN WILLIAM SIMON
2683 South Big Bend Blvd. # 12 Saint Louis, Missouri 63143‐2100
(314) 645‐1776 — FAX (314) 645‐2125 simonj@sbcglobal.net
Attorney for Petitioner

I. GENERAL PRINCIPLES

A. Extent of Distribution B. Rate of Distribution

Tissue Amt (mcg/g)

30 25 20 15 10
5 0
0

Thiope ntal Pe ntobar bital

5

10

15

Time, min

Brain concentrations of thiopental and pentobarbital after iv administration in the rat. Adapted from: Principles of Drug Action - The Basis of Pharmacology, p. 264,
1990.

 
 DECLARATION OF SRIKUMARAN (SRI) K. MELETHIL, PH.D., J.D. Srikumaran (Sri) K. Melethil, Ph.D., J.D., declares under penalty of
perjury as follows: 1. My name is Srikumaran (Sri) K. Melethil, Ph.D., J.D. I am a
pharmacokineticist. My curriculum vitae is attached to this declaration. Pharmacokinetics is the science of how drugs act in the body over time.
2. On September 19, 2005, I was contacted by Elizabeth Unger Carlyle, an attorney in Lee’s Summit, Missouri. She explained to me that she represented an intervenor plaintiff, Richard Clay, in a U.S. District Court case involving Missouri’s lethal injection procedure. She sought my expert testimony in connection with that case. I agreed to help.
3. Over the past several months, Ms. Carlyle and I have conferred several times about the issues in the case and the need for discovery as to the conclusions of the state’s expert.
4. On January 18, 2006, Ms. Carlyle contacted me by e‐mail and told me that a hearing date on the case might be imminent; she asked for and was given my conflict dates.
1

5. On January 26, 2006,, Ms. Carlyle contacted me again. She informed me that a merits hearing was scheduled for February 21‐22, and that my testimony likely would be needed on February 21.
6. On January 30, 2006, Ms. Carlyle attempted to contact me by telephone and e‐mail to inform me of the immediate hearing in the case. Because I was traveling, I did not receive these communications until Tuesday, January 31, 2006. I spoke with her that day.
7. I have reviewed the testimony and affidavits of Dr. Mark Dershwitz, the state’s expert in this case, which was presented in the case of Timothy Johnston. For the purposes of this declaration, I am assuming that his testimony in Mr. Taylor’s case was similar.
8. Dr. Dershwitz has indicated, based in part on a graph which he presented, that the blood level of sodium thiopental which would be present in the executed prisoner’s blood at the time of death was sufficiently high that the prisoner would become unconscious shortly after the administration of sodium thiopental and would remain unconscious until death. Dr. Dershwitz has not, to my knowledge, provided the data on
2

which he bases this conclusion. My own study of the area reveals no data supporting this conclusion.
9. The level of the drug in the brain, rather than that in the blood, determines whether a person will be unconscious. Dr. Dershwitz presents no data about measured brain levels of thiopental, either in humans or in laboratory animals. (For obvious reasons, it is impossible to determine the brain level of thiopental in a living human.)
10. Attached to this declaration is a graph showing the decline in the level of sodium thiopental in laboratory rats over time. The graph indicates that the decline is quite rapid. This is no surprise, because one of the reasons sodium thiopental is used clinically is that it wears off quickly. This characteristic decline in brain levels makes me suspicious that Dr. Dershwitz’s conclusions about consciousness and blood levels may be inaccurate.
11. Because I still do not know what data Dr. Dershwitz used, I cannot now express an opinion to a reasonable degree of scientific certainty
3

about his conclusions. However, if I had access to his data, I would be able to do so.
12. Goodman & Gilman’s, The Pharmacological Basis of Therepeutics, 9th Ed., a standard reference in pharmacology, notes that in surgical situations, the dosage of sodium thiopental needed for sedation varies with the person. Some people need larger doses than others. At p. 323, the reference notes, “Patients who require a large initial dose of thiopental will awaken despite plasma concentrations that normally would cause sleep.” Based on this reference, it is my opinion that blood levels of thiopental are not necessarily determinative of whether a particular person will actually be asleep during a procedure. Thus, I believe that the issue of whether persons subjected to the Missouri protocol will suffer unnecessarily due to the failure of anesthesia deserves further study.
Signed under penalty of perjury this 1st day of February, 2006.
____________________________________ Srikumaran (Sri) K. Melethil, Ph.D., J.D.
4

 
 IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT ____________________________________
No. 06‐1397 _____________________________________________
MICHAEL ANTHONY TAYLOR,
Plaintiff‐Appellant,
v.
LARRY CALDWELL et al.,
Defendants‐Appellees. ____________________________________
On Appeal from the United States District Court for the Western District of Missouri, Central Division The Hon. Fernando J. Gaitan, District Judge ____________________________________
BRIEF OF APPELLANT _____________________________________________
Respectfully submitted,
JOHN WILLIAM SIMON 2683 South Big Bend Blvd., Suite 12 St. Louis, Missouri 63143‐2100
(314) 645‐1776 FAX (314) 645‐2125
Attorney for Appellant

Summary of the Case and Statement Concerning Oral Argument Plaintiff filed this action in plenty of time to litigate it fully, but the
state and the defendants set up a situation where a panel of this Court felt obliged to require the reassignment of the case to a district judge new to the case and a “hearing” consisting of a few hours of phone conferences among several individuals in which the only people who could see each other were as many of the 200 plus lawyers in the Attorney General’s Office as it chose to deploy after decimating the plaintiffs’ team by incenting the plaintiff‐intervenor and intevenor‐applicant to withdraw from the matter.
The resulting, inevitable denial of relief was pushed forward by the new judge’s refusal to consider a valuable witness even within the small time this Court’s panel gave him.
This all violates the Due Process Clause of the Fifth Amendment. It is also just plain wrong.
This Court should set this case for oral argument, and should allow the parties twenty minutes per side.

Table of Contents
Summary of the Case and Statement Concerning Oral Argument..................i
Table of Contents ................................................................................................... ii
Table of Authorities .............................................................................................. iv
Jurisdictional Statement ........................................................................................ v
Statement of Issues................................................................................................ vi
Statement of the Case .............................................................................................1
Summary of Argument ..........................................................................................6
Standard of Review.................................................................................................8
Argument .................................................................................................................9
I. Plaintiff Michael Taylor was precluded from presenting his case by the order of this Court and the additional decisions of the district court foreshortening the process established by the regularly assigned district judge and refusing to allow counsel to present evidence even within the short time this Court’s panel allowed for the specially assigned district judge to render judgment. 9
A. The district court abused its discretion and denied the plaintiff due process of law in that it precluded him from presenting the physician and nurse who participate in Missouri executions. ..............................................................12
B. The district court abused its discretion and denied the plaintiff due process of law in that it refused to allow him to present the testimony of a pharmacokinetics expert whom the plaintiffs’ counsel before the suit was truncated had arranged to testify on the regularly assigned judge’s hearing date, but who was inaccessible until the second day of the “hearing” by telephone. .....................................13
‐ ii ‐

II. The district court clearly erred in entering judgment against Taylor in that the evidence was not sufficient to support its findings. 17
Conclusion..............................................................................................................23 Certificate of Compliance ......................................................................................1 Certificate of Service ...............................................................................................2
‐ iii ‐

Table of Authorities Error! No table of authorities entries found. Error! No table of authorities entries found.
Rules Fed. R. App. P. 32 .................................................................................................. vi Error! No table of authorities entries found.
Error! No table of authorities entries found.
‐ iv ‐

Jurisdictional Statement After this Court’s panel caused the case to be taken away from the district judge assigned through the regular procedures of the district court, United States District Judge Fernando J Gaitan denied the appellant’s complaint and rendered an adverse judgment on January 31, 2006. Counsel filed a notice of appeal on January 31, 2006. Jurisdiction of the trial court rested on 42 U.S.C. § 1983. This Court has jurisdiction under 28 U.S.C. § 1291, in that the appellant is appealing the judgment entered in the district court.
‐ v ‐

Statement of Issues I. Whether the plaintiff was precluded from presenting his case by the order of this Court and the additional decisions of the district court foreshortening the process established by the regularly assigned district judge and refusing to allow counsel to present evidence even within the short time this Court’s panel allowed for the specially assigned district judge to render judgment? Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) Beck v. Haik, 377 F.3d 624 (6th Cir. 2004). Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1987) II. Whether the district court clearly erred in entering judgment against Taylor in that the evidence was not sufficient to support its findings? First National Bank v. Benham, 423 F.3d 855, 861 (8th Cir. 2005) Shelton v. Consumer Product Safety Commission, 277 F.3d 998, 1007 (8th Cir. 2002).
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Statement of the Case On June 3, 2006—actually before he had ascertained all of the specific means by which the State of Missouri intended to execute him—the petitioner filed an action under 42 U.S.C. § 1983, Taylor v. Caldwell, No. 05‐ CV‐4173‐SOW, seeking to raise federal constitutional grievances concerning the chemicals, personnel, and other incidents involved in the State of Missouri’s practice of lethal injection. After the Missouri Supreme Court set an execution date in the previous leading case in this area, Johnston v. Campbell, Mr. Taylor’s counsel learned that in its lethal injections, the state uses a precursor operation variously referred to as “central line access” or “femoral vein access” and that the state uses a licensed physician in the process in violation of the Hippocratic Oath and the AMA Code of Ethics. Richard D. Clay, another condemned person in the Missouri Department of Corrections, intervened in the action, represented by Elizabeth Unger Carlyle and Jennifer Herndon. Plaintiffs filed an amended complaint setting forth their claims about the precursor operation and the physician participation.

On December 28, 2005, the United States District Court for the Western District of Missouri issued an order denying the defendant’s motion to dismiss for failure to state a claim, and holding that the case needed to go forward. The next business day, the undersigned counsel faxed a copy of this order to the Missouri Supreme Court with a cover letter advising it of the order. The second business day after counsel provided this notice, the Missouri Supreme Court set an execution date against Michael Taylor, the lead plaintiff in the federal action.
On January 19, 2006, the Hon. Scott O. Wright issued an order setting a hearing in the federal case for February 21, 2006, with the hearing to go over to February 22 if the Court needed a second day’s worth of evidence. Through Magistrate Judge William A. Knox, Judge Wright had the previous day informed counsel that he had tried to set the hearing before February 1, 2006, but that he could not do so in light of pending matters on its calendar. Without giving a reason or offering any intermediate course of action, counsel for the defendants indicated they would seek relief from Judge Wright’s order.
On January 20, 2006, the defendants filed an application to vacate Judge Wright’s preliminary injunction, to which I prepared a response. On January 27, 2006, counsel for Reginard Clemons, another condemned
‐ 2 ‐

person in the Missouri Department of Corrections, filed a motion to intervene in the action. Mr. Clemons is represented by New York City law firm which would have provided substantial litigation firepower for the plaintiffs at the hearing on February 21, 2006.
On January 29, 2006, a panel of the United States Court of Appeals for the Eighth Circuit vacated Judge Wright’s order, directed the Chief Judge of the district court to reassign the case to another district judge, and directed the new district judge to conduct a hearing immediately and to render judgment by noon on the date the Missouri Supreme Court had set for the execution. It also stayed the execution through 11:59 p.m. on Friday, February 3, 2006.
In light of the panel’s mandating another snap hearing—as had occurred in the Donald Jones, Vernon Brown, and Timothy Johnston cases with which the undersigned was familiar—and the new district judge’s refusal to let counsel call the physician who participates in Missouri’s executions, counsel for Messrs. Clay and Clemmons, respectively, dismissed their claims without prejudice and withdrew their motion to intervene.
This left the undersigned sole practitioner alone to litigate a snap hearing in a capital case involving several experts. Simply procuring their
‐ 3 ‐

participation by phone took substantial time and effort. Counsel was not able to contact one of them, who had been out of town, until the morning of the second day (yesterday), and he could not be ready to testify until the next day, which the new district judge did not allow. As a result of these unusual and irregular demands, the undersigned was unable to do the kind of job on this capital case involving arcane scientific subjects that he would typically do on the least grave and sensitive matters in his practice.
Because he had to conduct a telephone hearing solo two days in a row, the undersigned counsel was unable to prepare a pleading in this Court to seek to have the very order requiring the hearing overturned, and had to suspend my activities in support of execution clemency, which the same court has authorized me to engage in under its appointment.
Defendants sought to have the Supreme Court vacate this Court’s panel’s stay in its entirety. That Court declined. After the district judge issued the order, rendered inevitable by the circumstances under which the lawyers tasked to handle the hearing while the undersigned handled clemency advocacy, were removed by the technical knock‐out of December 29, 2006, the defendants filed a motion before this Court to vacate its three‐ day stay. The undersigned did not receive this motion by e‐mail until a
‐ 4 ‐

few minutes before this Court acted on it; he did not receive it by fax at the number in his letterhead (or any other fax number) until (according to the readout on his fax machine) 9:26 p.m., or “21:26,” i.e., only three minutes before this Court e‐mailed counsel its ruling on the motion.
Having received no response to the state’s motion (for the reason just specified), the panel cut its stay back to 5:00 p.m. today. Defendants were not satisfied with that, and applied to the Supreme Court to vacate its stay in its entirety.
This appeal followed. Appellant e‐mailed an application for a stay of execution from this Court to the Court, opposing counsel, and the Supreme Court at 9:58 a.m. today.
‐ 5 ‐

Summary of Argument Michael Taylor has not had an opportunity to litigate the substance his claims fully and fairly since the removal of the district judge who had been handling the case by regular assignment from its inception. Over and above enforcing the constraints resulting from the panel’s order, the new district judge precluded him from presenting evidence from the only witnesses qualified to give it. He refused to allow Mr. Taylor’s counsel to prepare and present a witness within the time this Court’s panel had allowed the sp to hear and rule on the case, when that witness was not prepared earlier because of his absence from the geographical area and the fact that no one could have foreseen the specific nature of the panel’s order. These omissions are directly or indirectly the fruit of the defendants’ and their privies’ manipulation of the judicial process to prevent anyone from receiving an eff hearing on the merits of claims relating to their form of lethal injection. The Supreme Court of the United States has recently set its face against the broadside denial of review of federal constitutional claims relating to lethal injection where, as here, the executioners rely on the legal fiction that a section 1983 action is a successive section 2254 petition when
‐ 6 ‐

it stands a chance of winning relief, and where, as here, the claims involve a medically unnecessary precursor procedure such as a cut‐down, central‐ line access, or femoral‐vein access.
‐ 7 ‐

Standard of Review Sufficiency of the evidence to support the judge’s factual findings is reviewed under a clearly erroneous standard. Pediatric Specialty Care, Inc. v. Arkansas Dept. of Human Services, 293 F.3d 472, 479 (8th Cir. 2002); Camberos v. Branstead, 73 F.3d 174, 177 (8th Cir. 1995). The district court’s action in excluding or admitting evidence is reviewed for abuse of discretion. First National Bank v. Benham, 423 F.3d 855, 861 (8th Cir. 2005). But the issue of whether these rulings denied the appellant due process of law is reviewed de novo. Shelton v. Consumer Product Safety Commission, 277 F.3d 998, 1007 (8th Cir. 2002).
‐ 8 ‐

Argument I. Plaintiff Michael Taylor was precluded from presenting his case by the order of this Court and the additional decisions of the district court foreshortening the process established by the regularly assigned district judge and refusing to allow counsel to present evidence even within the short time this Court’s panel allowed for the specially assigned district judge to render judgment.
Petitioner state officials and their privies have created the supposed time bind on the basis of which they persuaded this Court to order the district court to engage in the foreshortened consideration of a case in which the regularly assigned judge had denied a motion to dismiss and had set a hearing, resulting in a denial of relief. As privies of the State of Missouri, the defendants‐appellees here are estopped to complain of any “delay” on the part of Mr. Taylor in bringing his section 1983 action, as their state supreme court (which sets Missouri execution dates) has held that a Missouri condemned person cannot seek relief from a method of execution until its specific modalities are ascertained, which cannot be until shortly before or after the execution. See Worthington v. State, 166 S.W.3d 566, 583 n.3 (Mo. 2005) (en banc), in which the Missouri Supreme Court
‐ 9 ‐

rejected a Missouri condemned person’s challenge to the state’s lethal‐ injection procedure by holding it premature:
As it is unknown what method, if any, of lethal injection may be utilized by the State of Missouri at such future time, if any, as Mr. Worthington’s right to seek relief in state and federal courts is concluded and his execution date and method are set, it is premature for this Court to consider whether a particular method of lethal injection violates the Eighth Amendment because it causes lingering, conscious infliction of unnecessary pain. It is the strategy they have used in the Timothy Johnston case and here: if someone has a good challenge to their lethal‐injection practices going in federal court, they set an execution date once the district court denies the motion to dismiss. Someone should be able to litigate these claims fairly: it should now be Michael Taylor after the Eighth Circuit or this Court reverses the judgment which the district court entered after a mere simulacrum of a “hearing.” In arguing to the Supreme Court that the action of the district court in conducting a truncated hearing on the merits of this case should affect the court’s order staying Mr. Taylor’s execution, the defendants omit significant facts relevant to that hearing.
‐ 10 ‐

Pursuant to this Court’s order of Sunday, January 29, 2006, the
district court attempted to conduct a hearing on the merits of this matter on
Monday, January 30, 2006 and Tuesday, January 31, 2006. The new judge
selected for the purpose began proceedings with a telephone conference at
10:00 a.m. This was approximately two hours after counsel for plaintiff
learned of the order; he had been traveling on January 29, 2006 and did not
check his e‐mail until that morning. During the conference, the court
expressed some concern about the logistics of such a rapid hearing. While
the court concluded that it could conduct a fair hearing within the confines
of the time provided by this Court, the district court allowed with the
defendants’ acquiescence, the intervenor to withdraw. The intervenor’s
motion to dismiss stated, as cause for the dismissal:
Based on their evaluation of their ability to present adequately Mr. Clay’s claims in the hearing contemplated by the court, Mr. Clay’s counsel do not believe that his interests will be served by further participation in this case. He cannot fairly present his claims and evidence to the court in the limited time allowed for the hearing in this matter. Since he is not under execution warrant, he has no need to limit his presentation based on the constraints on Mr. Taylor. His interests are now divergent from those of Mr. Taylor, and he will be
‐ 11 ‐

prejudiced if he is required to continue as a party to this action. 1 By granting this motion, both the district court and the defendants implicitly conceded that a fair hearing was impossible. Further developments made that even clearer.
A. The district court abused its discretion and denied the plaintiff due process of law in that it precluded him from presenting the physician and nurse who participate in Missouri executions.
At the initial telephone conference, the district court denied the plaintiffs the right to call the doctor and nurse who have participated in multiple executions pursuant to the protocol proposed by the state in this case. At issue in this case is whether this protocol results in unnecessary and excessive pain and suffering. While not dispositive, it is at least relevant to this issue whether the medical professionals who conduct the execution are alert to the possibility of such pain and suffering during the procedure. It is also relevant whether they have observed symptoms in executed persons which indicate that these persons are suffering
1Motion To Dismiss Action Without Prejudice As To Intervenor, Dist. Ct. Doc. 71.
‐ 12 ‐

discomfort during the procedure. Plaintiff was unable to present this evidence because of the court’s peremptory ruling excluding it. Nor was the plaintiff able to determine whether the qualifications of the medical professionals involved were in fact as the defendant Crawford said they were, because the court refused to provide the plaintiff with the identity of the medical professionals. The court below, in the case of Timothy Johnston v. Larry Crawford et al., denied a writ of prohibition sought by the state and required that the identities be provided to Johnston’s counsel pursuant to a protective order. Mr. Taylor did not even have the benefit of that limited discovery before a final hearing on the merits of his case.
B. The district court abused its discretion and denied the plaintiff due process of law in that it refused to allow him to present the testimony of a pharmacokinetics expert whom the plaintiffs’ counsel before the suit was truncated had arranged to testify on the regularly assigned judge’s hearing date, but who was inaccessible until the second day of the “hearing” by telephone.
In addition to the inability to present evidence in support of his claim from crucial fact witnesses, the short period provided by the court below and its specially assigned judge prevented Mr. Taylor from presenting
‐ 13 ‐

evidence from Dr. Sri Melethil, Ph.D., J.D., a pharmacokineticist. Dr. Melethil had previously consulted with counsel for the plaintiffs’ team and expressed concern about the data on which the opinions of Dr. Mark Dershwitz, the state’s expert, were based. In particular, Dr. Melethil is aware that the rate at which sodium thiopental leaves the brain is greater than that at which it leaves the blood. Dr. Dershwitz’s conclusions were based on blood levels, but it is the brain level which determines whether anesthesia has occurred. Dr. Melethil was out of town and out of touch until the morning of January 31, 2006. Because complete discovery had not been obtained from Dr. Dershwitz, and because of Dr. Melethil’s previous commitments, counsel for Mr. Taylor were unable to provide him with the data he needed to form an expert opinion in this matter.
On appeal, it is likely that the judgment of the district court will be overturned. First, the exclusion of testimony from medical personnel who actually witness executions clearly violated Fed. R. Evid. 401. While a district court’s rulings on exclusion of evidence are reviewed for abuse of discretion, such abuse occurs when the court bases “its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990), cited in Beck v. Haik, 377 F.3d 624 (6th Cir. 2004). Under Fed. R. Evid. 401,
‐ 14 ‐

“’relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Here, the issue is whether the mode of execution employed by the State of Missouri causes unconstitutional pain and suffering. To hold that testimony by medical personnel (trained observers of symptoms) who actually participate in the execution is irrelevant to this determination flies in the face of the expansive language of Rule 401. In Beck v. Haik, 377 F.3d 624 (6th Cir. 2004), the court reversed the judgment on the grounds that the trial court improperly excluded both expert evidence bearing on a contested issue, and a letter which the court held “would clearly support one of the plaintiffsʹ main theories of the case.” Beck v. Haik, 377 F.3d at 637‐38. The court held that the cumulative effect of these errors was prejudicial, and reversed the judgment.
This case is also similar to Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1987), where the judgment was reversed after the trial court sustained the defendants’ motions in limine and excluded much of the plaintiff’s evidence. The court noted, “[A]s the judge’s discretion was exercised on a wholesale basis before trial began, rather than in response to the developing course of the trial, careful appellate review is necessary to make
‐ 15 ‐

sure the judge did not truncate the trial prematurely.” Since the state in this case presented no evidence as to the lack of pain and suffering during the execution process, and presented no witnesses who had personally observed the process in Missouri, the plaintiff’s lack of opportunity to explore this area is even more serious.
The lack of notice of the hearing also deprived the plaintiff of the ability to prove his claim. The situation, while somewhat unique, is similar to the denial of a continuance, and can be examined using the same standards. At the close of the hearing, plaintiff’s counsel attempted to make an offer of proof to the court of the information he was seeking from his expert, Dr. Melethil, but could not do so because of the time‐pressure created by the January 29, 2006, order of the court below and Dr. Melethil’s absence from the state. Because this expert has not yet been able to obtain this data, he is unable to be more specific about his opinion. It should be noted, however, that Dr. Dershwitz did not testify concerning this data, although his testimony was presented in support of the defendants’ case.
See also Gibson v. Weber, 433 F.3d 642 on the prejudice from not allowing a party to call a witness.
‐ 16 ‐

II. The district court clearly erred in entering judgment against Taylor in that the evidence was not sufficient to support its findings.
The plaintiff’s experts testified that the drug used to cause death, potassium chloride, is extremely painful when administered. They further testified that this drug caused a needless risk of pain, in that there were other drugs which would also cause death with less suffering. The district court refused to allow the presentation of evidence as to what actually happens during an execution, which the plaintiff proposed to present through the medical personnel who were actually present. The defendants presented evidence from a correctional official, but he testified only as to the protocol used, not to his personal knowledge of its practical application.
In its judgment, the district court relied on testimony from Dr. Dershwitz that the first drug administered, sodium thiopental, would render the executed person unconscious for a sufficient period that, ordinarily, the person would feel no pain. Dr. Dershwitz presented no testimony about the data he used to form this opinion, and had never witnessed a Missouri execution. The plaintiff’s experts, on the other hand, testified that there was a risk of pain, and that it could easily be avoided by
‐ 17 ‐

the use of drugs other than those presently used in Missouri. This meets the standard of “cruelty inherent in the method of punishment,” cited by the district court. Using a process that creates a known risk of pain when other procedures exist which minimize this risk is cruel and unusual punishment. We are not talking here about accidental errors in the administration of a proper protocol. There is evidence here that the protocol itself is unduly subject to risks which will cause unnecessary pain. For example, the Missouri protocol requires the use of femoral vein access whether or not such access is required in a particular patient. Uncontroverted evidence was offered that this procedure is much more complex and subject to error than the use of a regular intravenous line. The state presents no justification for exposing executed persons to this additional risk of discomfort.
The district court further cited Johnston v. Crawford, No. 4‐04‐CV‐1075, CAS (E.D. Mo. August 26, 2005). That order was entered after a truncated summary judgment proceeding, not a trial on the merits. The proceedings in that case were even more limited than those in this case. Thus, the decision in Johnston is not precedent supporting the district court’s judgment here.
‐ 18 ‐

Taylor offers to prove that the facts in a hearing free from the time‐ pressure that the defendants and their privies created by manipulating the judicial process would be as follows:
The district court wrote in the background (page 2) that the ”the drugs are administered through the femoral artery.” This is incorrect. In fact, the drugs are intended to be administered through the femoral vein. Administering these drugs via the femoral artery would cause immediate and excruciating pain. The point is not trivial in that Dr. Dershwitz himself acknowledged in his testimony that inadvertent placement of the catheter into the artery is not a rare occurrence. In Dr. Dershwitz’s world (the operating room), this is not seen as a “mistake” since an arterial catheter can be used for blood pressure monitoring and blood samples. However, in the lethal injection world, this would guarantee an excruciating death.
According Mr. Moore’s testimony, the drugs are administered by a physician. This activity, combined with the doctor placing the central line, provide an unpresedented level of physician participation in executions. There is simply no other parallel in modern history (outside of the killing
‐ 19 ‐

of German citizens in the Nazi “euthanasia program,”) where doctors personally injected drugs into people in order to kill them.
The district court’s opinion is that the inmate is unlikely to experience any pain with the femoral vein catheter insertion because the skin is numbed by local anesthetic. As Dr. Groner testified, the likelihood of severe pain is not due to the “seeker needle” piercing the skin, but rather due to the possibility of it striking nerves or bone (which is exquisitely sensitive). Dr. Dershwitz himself acknowledged that he would refuse placement of a femoral venous catheter if he required general anesthesia for an operation.
Dr. Dershwitz testified that the dose of thiopental which is administered, 5 grams, has a very long lasting effect. Thus, the likelihood that the inmate will still be conscious when the other drugs are administered is highly unlikely. However, Dr. Dershwitz admitted that he has never administered 5 grams of thiopental. Furthermore, the usual safeguards that Dr. Dershwitz uses in the operating room, which are designed to make certain the patient is fully anesthetized and not suffering, are absent in lethal injection. These include: pulse oximeter, end tidal
‐ 20 ‐

carbon dioxide monitor, muscle twitch measurement, and physician examination of the “patient” under anesthesia.
While “the ever‐present possibility of human error or accident is insufficient to establish a constitutional violation,” this is not the standard by which medical procedures are judged. Since lethal injection is proposed as a medical procedure, a medical doctor is employed by the state to perform it, and medical experts testify as to its efficacy, the procedure must therefore meet the medical standard for safety, which is “medical standard of care.” Medical standard of care is roughly defined as what a reasonable physician would do in a given clinical situation. The lethal injection protocol in Missouri does not meet the medical standard of care because:
The thiopental, which comes as a powder, is mixed and infused by someone with no specific training in sedation or anesthesia. Hospitals typically have a “credentialing process” for persons using anesthesia drugs
The use of a femoral central venous line in a person who did not require it clearly violates the medical standard of care. A patient/plaintiff in whom a femoral venous line was placed in this circumstance could
‐ 21 ‐

reasonably be expected to collect monetary damages for unnecessary surgery and pain and suffering.
The chemicals are pushed by someone with no training in anesthesia, who infuses the drugs through a long extension tubing and cannot actually monitor the inmate. The monitoring devices that safeguard anesthesia are not present. There is no formal record of monitoring, it no “anesthesia record” or the procedure. Thus there is no way to look back retrospectively at any execution to identify issues that may have cause suffering. Despite the lack of formal records, 22 botched lethal injections have been documented, including 12 cases in which there were problems with IV access and 3 cases of “unusual” reactions to drugs.
The judgment of the district court must be reversed.
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Conclusion WHEREFORE, the petitioner prays the Court for its order that the denial of his action under the foregoing circumstances be reversed, and the cause remanded with instructions that it be reassigned to the regularly selected district judge and that it proceed as it had been on January 28, 2006.
Respectfully submitted,
JOHN WILLIAM SIMON 2683 South Big Bend Blvd., Suite 12 St. Louis, Missouri 63143‐2100
(314) 645‐1776 FAX (314) 645‐2125 Attorney for Appellant
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Certificate of Compliance The portions of this reply brief not excluded from volume limitation, see Fed. R. App. P. 32(a)(7)(B)(iii), contain no more than 4157 words, in 14‐ point proportionally‐spaced type, prepared and measured using Microsoft Word 9.0/10.0 (Tools | Word Count). I have scanned the computer diskettes submitted to the Court and to opposing counsel for viruses using Trend Micro (updated approximately daily at least), and the program reported that they were virus‐free.
__________________________ JOHN WILLIAM SIMON

Certificate of Service I hereby certify that a true and correct copy of the foregoing was e‐ mailed, this first day of February 2006, to:
Michael Pritchett, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, Missouri 65102
___________________________ Attorney for Appellant
‐ 2 ‐

 
 FEB-Ol-2006 15:34

ATT GENERAL

573 751 3825 P.Ol

STATE OF MISSOURI OFFICE OF ATTORNEY GENERAL

SENDER: Name: Stephen D. Hawke

RECEIVER: Name: John Simon

Date: February 1, 2006

Finn:

Telephone No.: -57-3--7-5-1--3-32-J----------- Fax No.: 3P+ i4J-2W &;S'" 2~t 'iJto

Office Location: Rax Court

Telephone No.:----------------

(573) 751-3825 Criminal Division fax
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MESSAGE: Michael Taylor

FEB-01-2006 15:35

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573 751 3825 P.02

IN THE UNITED STATES DISTRICT COURT OF APPEALS FOR THE EIGHTH CIRCUIT

MICHAEL ANTHONY TAYLOR, et al.
Appellant, v. LARRY CRAWFORD, et aI.,
Appellees.

) ) ) ) )
) Case No. 06-1397 ) (District Court No. 05-4173-CV-C-SOW) ) ) )

APPELLEES' SUGGESTIONS IN OPPOSITION TO APPLICATION FOR STAY AND SUGGESTIONS IN SUPPORT OF SUMMARY AFFIRMANCE

Appellees Crawford and Purkett (Prison Officials) oppose Appellant Taylor's

(Taylor) application for a continued stay of execution and urge this Court to

summarily affirm the district court'sjudgment in this case. The Prison Officials have

demonstrated here (as they did previously in Johnston v. Crawford, No. 4:04-CV-

1075 CAS (E.D. Mo. Aug. 26, 2005» that Missouri's method oflethal injection does

not violate the Eighth Amendment. Additionally, the Prison Officials have

established that the presence of a doctor during executions is neither a breach of

medical ethics nor a violation of the condemned prisoner's due process rights, and

also that Missouri's execution procedure does not violate the Thirteenth Amendment.

PROCEDURAL HISTORY

Appellee Taylor pled guilty to first degree murder, armed criminal action,

kidnapping and forcible rape for which he was sentenced to death, fifty years, fifteen

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years, and life imprisonment, all sentences to run consecutively. The court affirmed the convictions and sentences as well as the denial ofpost-conviction relief. State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996), cert. denied, 519 U.S. 1152 (1997).
Taylor initiated a petition for writ of habeas corpus in the United States District Court for the Western District ofMissouri. The district court denied the petition, and the court of appeals affirmed. Taylor v. Bowersox, 329 F.3d 963 (8the Cir. 2003), cert. denied, 541 U.S. 947 (2004).
On June 3, 2005, Taylor filed a suit asserting civil rights claims under 42 U.S.C. § 1983 that his execution by means of Missouri's lethal injection procedure would violate his constitutional rights. On November 22,2005, the Missouri Supreme Court sustained the state's motion to set an execution date. Then, on January 3, 2006, the Supreme Court ofMissouri set an execution date ofFebruary 1,2006, for Taylor. On January 19,2006, the district court entered its order in this case prohibiting Taylor's execution on February 1 and directing that no execution take place until the court held a hearing on the merits beginning on February 21,2006, and further order ofthe court.
The Prison Officials appealed and moved to vacate this order. On January 29, 2006, this Court vacated the district court's order, directed an immediate hearing to resolve the issues, and entered its own stay of execution through January 6, 2006. The district court held a full hearing on the merits (via telephone to accommodate the
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witnesses, three out of four of whom were doctors who reside in other states) on January 30 and 31. On January 31, the district court ruled against Taylor on all his claims and entered judgment in favor ofthe Prison Officials. Thereafter, following a motion by the Prison Officials, this Court vacated its earlier stay, but entered a new stay through 5 p.m. on February 1,2006. In the meantime, Taylor filed this appeal.
STANDARD OF REVIEW Review of the Stay. The Supreme Court set forth the standard of review for stays in Bowersox v. Williams, 517 U.S. 345 (1996).
A stay of execution pending disposition of the second or successive federal habeas petition should be granted only when there are "substantial grounds upon which relief might be granted..... Entry of a stay on a second or third habeas petition is a drastic measure, and we have held that it is particu lady egregious to enter a stay absent substantial grounds for relief. Id. at 346 (citations and quotation marks omitted). This standard, developed in a capital habeas appeal context, similarly applies with stays issued in a civil rights litigation. Gomez v. United States District Court, 503 U.S. 653, 653·54 (1992). In light of this standard of review, this Court should vacate its stay in this case and permit Taylor's execution to go forward. Review of the Judement. Regardless of whether this case retains its identity as a suit under 42 U.S.C. § 1983, or it has been transfonned into a habeas action, see Nelson v. Campbell, 124 S. Ct. 2117, 2125 (2004), the district court orderrejecting
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Taylor's claims should be affirmed. Ifthis case has changed into a habeas action, the rejection of Taylor's claims is appropriate because he never obtained approval to proceed from this Court as required by 28 U.S.C. § 2244(b)(3) (before a second or successive application for habeas relidis filed in the district court, the applicant must obtain authorization to do so from the Court of Appeals).
If this case really does remain one under § 1983, then the district court's judgment should also be affirmed because that court's well-supported findings of .fact and its cogent application of the law to those facts. On review of a bench trial, the appellate court reviews the trial court's findings of fact for clear error and its conclusions oflaw de novo. Darst-Webbe Tenant Ass'n Bd. v. St. Louis Housing Auth., 339 F.3d 702, 710-11 (8'h Cir. 2003). Additionally, a well-reasoned opinion of the district court may be summarily affirmed. Lashley v. Delo, 997 F.2d 512 (8th Cir. 1993) (citing 8'h Circuit Local Rule 47B).
ARGUMENT
. '
" 'J
The district court's January 31,2006 order concluded that Taylor's execution would not violate his Eighth, Thirteenth or Fourteenth Amendment rights (Order, p. 9). In particular, as to the three drug sequence, the district court found that Taylor would not be conscious after receiving a 5 gram dose of sodium pentothal, the first drug (Order, p. 5; Defendants' Trial Exhibits 1, 3, 4, and 5 (all these exhibits were included in Exhibit E to the Application for Vacation of District Court's Order
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Prohibiting Execution, filed by the Prison Officials with this Court in Case No. 061278WMJC on January 20,2006». This finding, was based on testimony by Dr. Dershwitz (Order, p. 3, 5). In fact, Taylor's experts testified that 5 gram dose was itself lethal over a period of two to twenty minutes (Order, p. 4). Relying on decisions from around the country and Missouri, the district court properly concluded there would be no Eighth Amendment violation. Similarly, administering the drugs through the femoral vein would result in "little if any pain" (Order, pp. 6-7). As the district court found, "an injection is administered to numb the area before a catheter is inserted so that the inmate will experience little if any pain (Order, pp. 6-7). The court also reached the correct legal conclusion that the small possibility of complications in the procedure does not open it to valid challenge under the Eighth Amendment (Order, pp. 5 & 9) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976); Louisiana ex rei. Francis v. Resweber, 329 U.S. 459, 464 (1947); Campbell v. Wood, 18 F.3d 662,687 (9I1l Cit. 1994».
As to the due process claim, the district court concluded it was meritless. The district court concluded that a physician's participation in the execution process does not violate the physician's code ofethics and does not violate a condemned prisoner's due process rights (Order, pp. 7 & 9). The court supported this conclusion both logically and on the basis of the existing case law on this point (Order, p. 7) (citing Abdur 'Rahman v. Bredesen, No. M2003-0 I767-COA-R3-CV, 2004 WL 2246227, *9
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FEB-01-2006 15:36

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(Tenn. Ct. App. Oct. 6, 2004), ajJ'd, 2005 WL2615801 (Tenn. Oct 17,2005).

,

," ,

Similarly, the district court found the Thirteenth Amendment claim was meritless

as a matter ofhiw because the amendment expressly excepts those being punished for

a crime and because Taylor failed to show how prisoners ofdifferent races are treated

differently (Order, p. 8)(citing Wendt v. Lynaugh, 841 F.2d 619,620 (5th Cir. 1988);

Draper v, Rhay, 315 F.2d 193, 197 (9th Cif. 1963), cert. denied, 375 U.S. 915, 84 S.

Ct. 214 (1963).

Contrary to Taylor's assertion, there is no "rush" to execution here. He has had

ample time and ability (and has made good use of it) to pursue his claims since his

conviction. His opportunities to address his claims in this case with regard to the

constitutionality of Missouri 's lethal injection procedure are no different. Despite a

fair opportunity to litigate the matter, the district court here correctly concluded that

Missouri's lethal injection procedure is constitutional (Order, p. 9). See also

Johnston v. Crawford, No. 4:04-CV-1075 CAS, slip op. at pp. 9-10 (E.D. Mo. August

26,2005); Johnston v. Roper, 421 F.3d 1152 (8th Cir. 2005) (en bane) (review and

denial of Johnston's motion for stay of execution). Recognition of the invalidity of

Taylor's claims by the district court after conducting its own hearing and independent

review on the question does not constitute undue haste.

Taylor's protestations oflack offair notice to prepare his case before the hearing

do not take note of his own failure to file a motion for any sort of equitable relief

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I'

FEB-01-2006 15:36

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regarding his impending execution until more than two weeks after his execution date had been set or his failure to seek a ruling from the court on the merits of his claims. His suit has been on file since June 2005. He had over six months to prepare for the hearing he sought and which he knew would need to occur before his expected execution. He also had nearly a month after the issuance ofthe execution warrant in this case to prepare his case. This preparation could easily have included the taking of discovery and preservation depositions.
In particular, Taylor complains of an inability to present evidence from Dr. Sri Melethil, a phannacokineticist. But he never addresses his access to Dr. Melethil before January 31, 2006, and admits that this doctor had returned from "out of town" by the morning ofJanuary 31. Thus, Taylor could have called this doctor because the hearing in this case reconvened at 9:30 a.m. and continued until nearly noon. Taylor asserts, however, that he was still unable to provide the doctor with data from the defense expert, Dr. Mark Dershwitz. Aside from noting again that Taylor had more than six months to conduct discovery in this case, Taylor also had knowledge that Dr. Dershwitz would be the defense expert from early in this suit and had a copy of Dr. Oershwitz's affidavit from the Johnston case reporting his opinion of Missouri's lethal injection procedure (and likely also had a transcript of Dr. Oershwitz's testimony from the Johnston case). Leaving these opportunities aside, Taylor also made no apparent attempt to call Dr. Melethil to testify even to the simple and
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FEB-01-2006 15:37

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straight forward proposition, as expressed in Taylor's brief, that Dr. Dershwitz's analysis was allegedly flawed because his conclusions were based on drug levels in the blood instead of drug levels in the brain.
Having passed on the opportunities to develop his case, Taylor's complaints now about lack of a full opportunity to provide relevant evidence are not compelling.
Even if the declaration of Dr. Melethil that has been presented to the Prison Officials this morning could be taken into account in the review ofthe district court's order, it shows that evidence from this doctor would have added little to the trial anyway and does not call the district court's judgment into doubt. l The district court found the 5 gram dose of sodium pentothal sufficient to render the condemned unconscious, based on the testimony of Dr. Dershwitz (Order, pp. 3, 5; Defendants' Trial Exhibits 1, 3, 4, and 5 (all these exhibits were included in Exhibit E to the Application for Vacation ofDistrict Court's Order Prohibiting Execution, filed by the Prison Officials with this Court in Case No. 06-1278WMJC on January 20,2006)). Dr. Melethil's speculation in the declaration, based on animal studies and lower dosages, does not demonstrate the wanton infliction of pain during the execution. That is true especially because he does not contradict the evidence that the dose of thiopental sodium at issue here is not a marginal one, but one that even Taylor's
I In fact, the Declaration shows that another lawyer who had been working on this case with Taylor's counsel (counsel to former co-plaintiff Richard D. Clay) has been in contact with Dr. Melethil since mid-September.
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testifying experts state was itself lethal (see Order, p. 4). Taylor's related claim, that he was denied a fair opportunity to make his case at
the district court hearing because he was not permitted to call the doctor and nurse who are present at Missouri's executions is also unavailing. Testimony from these witnesses would be of little relevance. The challenge here is to the method of execution. Taylor has been given detailed information as to the drugs used, their doses, and the order and the manner of administration. That method is what it is regardless of who prepares the drugs and sets the IV.
Taylor's contention that the testimony of these witnesses is relevant for their observations at executions is also of no avail because there are other witnesses to executions who could provide such testimony - and he does not claim to have made any effort to obtain such testimony.
While the qualifications ofthe doctor and nurse may have some relevance, the district court has assessed Taylor's need for information on qualifications of personnel involved in the process and instructed petitioner to provide Taylor with the necessary relevant information. Pursuant to this instruction petitioners have provided to Taylor background facts including that the doctorinvolved in Missouri executions is a licensed physician and a board-certified surgeon and that the nurse is a licensed practical nurse.
The district court's decision with regard to information about and testimony from
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the doctor and nurse struck the proper balance between Taylor's need for infonnation and the Prison Officials' (and the doctor's) concern that identifying the doctor and nurse would result in their safety and security being put at risk from strident death penalty opponents.
The district court's decisions as to the challenged evidentiary matters were very reasonable and cannot be disturbed as an abuse of discretion.
There was more than sufficient evidence to support the district court judgment as outlined above and as contained in Exhibit E (containing Defendants' trial exhibits 1,3,4, and 5) before the district court). The Court should decline Taylor's invitation to reweigh the evidence.
WHEREFORE, the Prison Officials pray this court to deny Taylor's request for a stay and to summarily affirm the district court's well-reasoned decision.

,I,'

~ :
-\0-
.• !,

FEB-01-2006 15:37

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573751 3825 P.12

Respectfully submitted,
JEREMIAH w. (JAY) NIXON
pZ~zjJ~
MICHAEL PRITCHETT Assistant Attorney General Mi . Bar No. 33848

Assistant Attorney General Missouri Bar No. 35242

P. O. Box 899 Jefferson City, Missouri 65102 Telephone No. (573) 751-3321 Fax. No. (573) 751-9456

ATTORNEYS FOR APPELLEES CRAWFORD AND PURKETT

CERTIFICATE OF SERVICE

-L--- I hereby certify that on this

day of February, 2006, I mailed, by United

States Mail, a copy of the foregoing to the fol1owing:

John W. Simon, Attorney at Law 2683 South Big Bend Boulevard, # 12 St. Louis, MO 63143-2100

-llTOTAL P.12

 
 IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

MICHAEL ANTHONY TAYLOR, Plaintiff-Appellant,
v. LARRY CAMPBELL, et al.,
Defendants-Appellees.

) )
) ) App. No. 06-1397 ) ) Dist. No. 05-4173-WMJC ) ) )

PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC Michael Anthony Taylor prays the Court’s panel or, failing that, the Court en banc, for its order vacating its panel order of today denying his application for a stay of execution, entering a stay pending the disposition of this appeal, and granting rehearing en banc or in the alternative remanding the cause with instructions to vacate the judgment entered after a truncated hearing without adequate discovery, in that the panel’s judgment conflicts with Nelson v. Campbell, 541 U.S. 637 (2004); Dickerson v. Dotson, 125 S.Ct. 1242 (2005), Gregg v. Georgia, 428 U.S. 153, 173 (1976); Furman v. Georgia. 408 U.S. 238, 273 (1972); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947); In re Kemmler, 136 U.S. 436, 447 (1890); Wilkerson v. Utah, 99 U.S. 130, 136 (1878). The constitutional proscription against cruel and unusual punishments in U.S. Const. amend. VIII, and the English Bill of Rights of 1688 forbids “the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion).. In addition to disproportionality to a given offense, it

is the infliction of unnecessary or “wanton” pain in carrying out a death sentence which lies at the heart of the constitutional prohibition in capital cases. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947) (plurality opinion); Wilkerson v. Utah, 99 U.S. 130, 136 (1878) (“unnecessary cruelty”). One of the characteristics that marks a cruel and unusual execution is “a lingering death.” In re Kemmler, 136 U.S. 436, 447 (1890). A punishment is particularly offensive to constitutional norms if it involves the foreseeable infliction of suffering: in Louisiana ex rel. Francis v. Resweber, an electric chair had malfunctioned, and Mr. Francis had not died at the appointed time; he contended that re-executing him would be unconstitutional. A divided Court rejected his claim, based in part on lack of mens rea by the state actors: the plurality reasoned that if the failed execution been intentional and not unforeseen, the second punishment would have been, like torture, “so degrading and indecent as to amount to a refusal to accord the criminal human status” The Court relied on this principle from Francis in its reasoning in Furman v. Georgia. 408 U.S. 238, 273 (1972).
These constitutional guaranties apply to lethal injections, and a cause of action exists for preventing the infliction of gratuitous pain and suffering under 42 U.S.C. § 1983, in cases of lethal injection, at least when they involve the use of a precursor operation such as a “cut-down.” Nelson v. Campbell, 541 U.S. 637 (2004). Last week the Supreme Court issued a stay of execution in the Hill case to
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examine whether such actions are, as the appellees argued below, “really” a second habeas corpus. Yesterday it granted a stay in the Rutherford case, which involved that issue plus the question whether the plaintiff had waited too long to file the section 1983 action.
For the reasons set forth in the plaintiff’s brief and application for a stay directed to the panel, which counsel understands have been sent to every judge in active service, the plaintiff is at the very least entitled to litigate an appeal from the district court’s drumhead denial of relief. Counsel would repeat those arguments here but for the fact that the panel’s stay expires at 5:00 p.m. today, about an hour and a half from now.
As explained in those document, the State and its privies created the situation in which the plaintiff is litigating this issue under this unconscionable pressure. They will continue to do so until this Court or the Supreme Court draws a line in the sand. What is at stake is not only human decency, but the independence of the judiciary. God save the United States and this Honorable Court.
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WHEREFORE, the appellant prays the Court for its order as aforesaid. Respectfully submitted,

Of Counsel Sindel, Sindel & Noble, P.C.

JOHN WILLIAM SIMON
2683 South Big Bend Blvd., Suite 12 St. Louis, Missouri 63143-2100
(314) 645-1776 FAX (314) 645-2125 simonj@sbcglobal.net
Attorney for Appellant

Certificate of Service
I hereby certify a true and correct copy of the foregoing was e-mailed this
first day of February 2006, to the office of:
Michael Pritchett, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, Missouri 65102

Attorney for Appellant

___________________________

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 THIS IS A CAPITAL CASE Eighth Circuit stay expires at 5:00 p.m. CST
No. _______
In The SUPREME COURT OF THE UNITED STATES
__________________________
MICHAEL ANTHONY TAYLOR,
Petitioner,
v.
LARRY CRAWFORD, Director, Department of Corrections, State of Missouri,
and
JAMES D. PURKETT, Superintendent, Eastern Reception, Diagnostic & Correctional Center,
Respondents. __________________________
On Petition for a Writ of Certiorari to the Eighth Circuit Court of Appeals __________________________
SUPPLEMENTAL SUGGESTIONS IN SUPPORT OF APPLICATION FOR STAY OF EXECUTION __________________________
COMES NOW the petitioner, by and through counsel, and files these
supplemental suggestions in support of his application for stay of
execution.

As noted in Mr. Taylor’s initial pleading, this court must apply the standards of Rostker v. Goldberg, 448 US 1306, 1308 (1980) to this motion. Applying that standard here requires a stay.
In addition to the fact that is court has pending before it two similar cases, the particular facts of this case also support the prongs of the test that there is a reasonable probability that this Court will grant certiorari and a substantial likelihood of relief.
Mr. Taylor’s §1983 motion, unlike that of Mr. Bieghler, to whom this court recently denied relief, was pending for six months when the Missouri Supreme Court set a date for Mr. Taylor’s execution. As noted in previous pleadings, the Missouri Supreme Court created the current time urgency by setting the date for execution before the defendants in the §1983 action had even filed an answer to the plaintiffs’ petition.
In response, the district court acted with due respect both to the interests of the defendants and the plaintiffs. It set a hearing on the merits less than 30 days after the scheduled execution, and stayed the execution pending the hearing. The Eighth Circuit instead directed that a hearing be held before the execution date. The order was issued on a Sunday afternoon, and Mr. Taylor’s counsel did not become aware of it until January 30, 2006, the day the hearing was scheduled to begin.
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Both the district court and the defendants implicitly conceded that a fair hearing was improper when the defendants did not oppose, and the court granted, the motion of intervenor plaintiff Richard Clay to withdraw on the grounds that such an unfair hearing should not be binding on him.
In order to accommodate the unreasonable order of the court of appeals, the district court unreasonably truncated the hearing. In his appeal, Mr. Taylor has presented two specific instances of prejudice arising from this limitation that prevented him, in violation of his rights to due process of law, from fairly presenting his civil rights claim to the district court.
To obtain a judgment that Missouri’s method of lethal injection did not constitute cruel and unusual punishment, the defendants relied exclusively on testimony from experts about the way in which the process should work. Despite the fact that this protocol has been used, according to the state, for approximately five years, the district court refused to require the state to make available the medical professionals who actually carry it out so that the plaintiffs could adduce evidence about how the process works in practice. Nor would the court allow the plaintiffs to investigate independently whether those professionals in fact had the qualifications
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the defendants said they had, or what their experience was with the particular processes involved in the Missouri protocol.
This is particularly important because there are inherent problems with Missouri’s method of execution. Intravenous access is gained via the femoral (leg) vein, using a sophisticated medical procedure that involves the insertion of a guidewire and a large than normal intravenous catheter. This is an unnecessary, painful procedure that is used in spite of the fact that there are other less painful and safer ways to gain intravenous access. Further, Missouri, which uses a three chemical sequence of thiopental, pancuronium bromide, and potassium chloride, makes no provision for monitoring the prisoner’s level of anesthesia prior to administration of the latter two drugs. Reasonable medical standards call for careful monitoring of anesthesia whenever a barbiturate (such as sodium thiopental) is used in conjunction with a muscle relaxer (such as pancuronium bromide.) This is because the muscle relaxer will paralyze the patient and prevent him from communicating his pain and suffering if the barbiturate is not at the proper level in his brain.
As noted in the declaration of Dr. Sri Melethil, previously provided to this court, certain persons have “acute tolerance” to sodium thiopental. These people will awaken despite the administration of a dosage of the
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drug which would ordinarily cause sleep. Missouri makes no provision for determining whether this has happened during the execution process. The phenomenon is common enough that reasonable medical standards require that precautions be taken to avoid it.
Dr. Melethil’s evidence was not presented to the district court because he was traveling and did not learn of the immediate hearing until January 31, 2006, when it was already in progress; his previous commitments made it impossible for him to participate that day. His declaration was filed the next day, but the district court issued its ruling on the evening of January 31.1 Thus, in addition to forbidding Mr. Taylor from presenting relevant and necessary fact witnesses, the district court prevented him from presenting relevant expert testimony.
Mr. Taylor presented the testimony of two experts at the truncated hearing despite the lack of notice. The district court relied heavily on the credibility of the state’s expert in the absence of fact witnesses and the testimony of a pharmacokineticist such as Dr. Melethil. Had a full hearing been conducted, there is a reasonable probability that the district court would have ruled otherwise.
1 Dr. Melethil’s declaration indicates that he had been involved with the case since September, 2005; he was not a last‐minute addition to Mr. Taylor’s evidence.
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WHEREFORE, for the reasons presented in his application for stay and in this pleading, the petitioner prays the Court for its order granting a stay of execution pending this Court’s disposition of his petition for a writ of certiorari to review the judgment of the Eighth Circuit Court of Appeals, and if certiorari is granted, pending the final disposition of his cause in this court..
Respectfully submitted,
JOHN WILLIAM SIMON* *Counsel of Record
2683 South Big Bend Blvd., # 12 St. Louis, Missouri 63143‐2100
(314) 645‐1776 FAX (314) 645‐2125 Attorney for Petitioner
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Certificate of Service I hereby certify a true and correct copy of the foregoing was e‐mailed this 1st day of February 2006, to the office of:
Stephen David Hawke, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, Missouri 65102
___________________________ Attorney for Petitioner
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 UNITED STATES SUPREME COURT

LARRY CRAWFORD, Director,

)

Missouri Department of Corrections, )

JAMES D. PURKETT, Superintendent, )

Eastern Reception Diagnostic &

)

Correction Center and JOHN DOES, )

1-666 Anonymous Executioners,

)

)

Petitioners,

)

)

vs.

)

)

MICHAEL ANTHONY TAYLOR,

)

)

Respondent.

)

No. ______________

APPLICATION TO VACATE STAY OF EXECUTION Petitioners apply to vacate the stay of execution imposed the evening of February 1, 2006, by the United States Court of Appeals for the Eighth Circuit in Michael Taylor v. Larry Crawford, et al., No. 06-1278 (8th Cir. Feb. 1, 2006) (en banc). After that court received a decision from the United States District Court for the Western District of Missouri, the panel voted 2-1 to deny a stay. The en banc court of appeals voted to grant a stay. But it provided no reasoning for its decision.
Procedural History The court is familiar with the procedural history of this case. Now, upon en banc review, the court of appeals issued the following order:
Appellant Michael Anthony Taylor’s petition for rehearing en banc is granted. Appellant’s application for a stay of execution is granted.
Judge Riley would deny the petition and deny the application for a stay.

Judge Benton took no part in the vote in this matter. Petitioners now approach this court with a request that the court vacate the February 1, 2006 stay of execution in Michael Taylor v. Larry Crawford, et al., No. 06-1379.
Standard of Review This court set forth the standard of review in this situation in Bowersox v. Williams, 517 U.S. 345 (1996).
A stay of execution pending disposition of the second or successive federal habeas petition should be granted only when there are substantial grounds upon which relief might be granted. . . . . Entry of a stay on a second or third habeas petition is a drastic measure, and we have held that it is particularly egregious to enter a stay absent substantial grounds for relief. Id. at 346 (citations and quotation marks omitted). In light of this standard of review, this court should vacate the lower court's stay of execution. This standard, developed in a capital habeas appeal context, similarly applies with stays issued in a civil rights litigation. Gomez v. United States District Court, 503 U.S. 653, 653-54 (1992). The Court of Appeals' February 1, 2006 order is a summary order granting a stay of execution. It gives no explanation whatsoever. Such stays without explanation are rightly disfavored. Bowersox v. Williams, 517 U.S. at 346, citing Netherland v. Tuggle, 515 U.S. 951 (1995) (per curiam). Reading the stay order in conjunction with the district court’s January 31, 2006 judgment (Application Exhibit Q) shows no basis for a stay. Respondent fails to show substantial grounds justifying issuance of a stay.
2

In Missouri, execution warrants are issued by the Missouri Supreme Court for a particular date. See, e.g., Missouri Supreme Court order of January 3, 2006, and Warrant of Execution (Application Exhibits O and P). See Delo v. Stokes, 495U .S. 320,110 S. Ct. 1880, 1881 (1990). They thus permit the execution to take place any time between 12:01a.m. and 11:59 p.m. The warrant expires shortly at 11:59 p.m. on February 1, 2006.
Why The Stay Should Be Vacated The court of appeals en banc order is unprecedented. It declines to identify a substantial ground for the stay. In fact, it declines to provide any reason for the stay. During Timothy Johnston litigation and now the Michael Taylor litigation, Missouri has now proved to the satisfaction of two district judges that there is no basis for §1983 relief as to Missouri’s method-of-execution. In contrast, Taylor can show no circuit or state court that has granted relief. This case is not a “substantial ground” for a stay. Respondent Taylor makes three claims in this case, which he filed as a § 1983 action. He first challenges Missouri’s method of lethal injection as violative of the Eighth Amendment’s ban of cruel and unusual punishments. He next claims that his due process rights under the Fourteenth Amendment will be violated because a physician will assist in preparations for the execution and such assistance by a physician is a violation of medical ethics. Then, he asserts that lethal injection, as performed in Missouri, violates the Thirteenth Amendment in that it constitutes a badge of slavery. Respondent Taylor cannot succeed on the merits on any of these claims.
3

Missouri’s method and means of administration of lethal injection are not cruel and unusual. The Eighth Amendment prohibits punishments that involve “‘unnecessary and wanton inflictions of pain.’” Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 290 (1976) (quoting Gregg v. G eorgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925 (1976)). It also prohibits those that are inconsistent with “evolving standards of decency that mark the progress of a maturing society.” Estelle, 429 U.S. at 102, 97 S. Ct. at 290 (quoting Trop v. Dulles, 356 U.S. 86, 100-01, 78 S. Ct. 590, 598 (1958). Any punishment must be consistent with human dignity and comply with current civilized standards. Trop, 356 U.S. at 96-102, 78 S. Ct. at 597-98.
Missouri is among 37 of the 38 states with the death penalty that use lethal injection as a method of execution. See Cooper v. Rimmer, 379 F.3d 1029, 1032 (9th Cir. 2004). “There is general agreement that lethal injection is at present the most humane type of execution available and many states have abandoned other forms of execution in favor of lethal injection.” Hill v. Lockhart, 791 F. Supp. 1388, 1394 (E.D. Ark. 1992). See also LaGrand v. Lewis, 883 F. Supp. 469, 471 (D. Ariz. 1995) (citing cases that have affirmed the constitutionality of lethal injection), aff’d, 133 F.3d 1253 (9th Cir. 1998), cert. denied, 525 U.S. 971, 119 S. Ct. 422 (1998). Moreover, medical experts have urged that death by lethal injection is more humane than previously used means of execution. See People v. Stewart, 520 N.E.2d 348, 358 (Ill. 1998), cert. denied, 488 U.S. 900, 109 S. Ct. 246 (1988).
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In addition to this case law generally finding lethal injection to be a humane method of execution, Missouri’s particular method of lethal injection and means of administering the drugs have recently been found to pass constitutional muster, in the district court decision here (Application Exhibit Q), at pages 4-7, and in Johnston v. Crawford, No. 4:04-CV-1075 CAS, slip op. at pp. 9-10 (E.D. Mo. August 26, 2005) (Application Exhibit A; “Johnston slip op.”). In Johnston, the plaintiff raised the same two Eighth Amendment issues Taylor raises here:
(1) There is a significant risk that the sodium pentothal (also called thiopental sodium) administered first in the execution process, either through administration by untrained personnel or due to the amount administered, will not render the condemned prisoner unconscious until his death, with the result that he will be conscious and suffer pain from the administration of pancuronium bromide (also called pavulon), which is the second drug administered and which causes paralysis and suffocation, and of potassium chloride, which is the third drug administered and which causes pain as it goes through the veins before it reaches the heart and stops it. (It was also asserted in Johnston, as here, that the paralysis caused by the pancuronium bromide would render the inmate incapable of demonstrating that he was conscious and experiencing pain.) Johnston slip op. at p. 1; Taylor, slip op. at 4-6.
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(2) The administration of the three drugs used in the execution process into the femoral vein by means of a triple lumen catheter causes undue pain. Johnston slip op. at p. 7; Taylor, slip op. at 6-7.
With regard to the first claim, Dr. Dershwitz, the defense expert, testified in the Johnston case that the 5 gram dose of sodium pentothal given in Missouri1 would render most people unconscious within a few seconds and that by the time all 5 grams are injected over 99.9999999% of the population would be unconscious. Johnston slip op. at p. 5; Testimony of Dr. Dershwitz (Application Exhibit D), at p. 18; Affidavit of Dr. Dershwitz (Application Exhibit E; also presented to the district court at the trial in this case as Defendants’ Exhibits 1-5), at ¶ 8.2 (Dr. Dershwitz also testified to the same effect yesterday in the hearing in this case.) The Johnston court found that this testimony was essentially unrebutted by Dr. Heath, the plaintiff’s expert, in that he testified only that the dose of sodium pentothal would be insufficient only if it was administered incorrectly. Johnston slip op. at pp. 5-6. The court also noted that Dr. Heath had conceded in Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005), that a 5 gram dose of sodium pentothal, if administered
1No changes in the means used in the execution of Johnston are anticipated for the execution of respondent Taylor. Application Exhibit F (Answer to Supplemental Interrogatory No. 18 (p. 2).
2Dr. Dershwitz also explained that “[b]ecause these probability calculations by definition could never be 0 percent on one end or 100 percent on the other, we end up with probabilities with a lot of nines in them because mathematically you cannot have in this type of calculation 100 percent. But this is practically speaking a dose that guarantees unconsciousness in everybody for a significant period of time.” Exhibit D, at p. 18.
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properly, “would likely be sufficient to cause unconsciousness and probably death prior to the administration of pancuronium bromide.” Johnston slip op. at p. 5 (quoting Beardslee). With regard to the possibility that an error in administration of the drugs could result in a risk of suffering, the court, citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463-65, 67 S. Ct. 375, 376-77 (1947), ruled that such a “possibility of human error or accident is insufficient to establish a constitutional violation.” Johnston slip op. at p. 4; see also Johnston slip op. at p. 7; Taylor slip op. at p. 5. It should also be noted that a 5 gram dose of sodium pentothal is 12.5 times the normal surgical dosage and would render most people unconscious for more than 13 hours. See Beardslee, 395 F. 3d at 1075. The district court here properly concurred in those findings and conclusions. Taylor slip op. at 5.
Additionally, the court in Johnston found the doctor and nurse involved in Missouri executions to be qualified. Johnston slip op. at p. 7. The court specifically noted the evidence that the doctor had prepared sodium pentothal (the only one of the three drugs that requires mixing on site) 1000 times and had placed IV central lines 20,000 to 30,000 times. Johnston slip op. at p. 7 n.1. This same doctor is expected to be involved in respondent Taylor’s execution. Defendant Crawford’s Answers to Plaintiffs’ Supplemental Interrogatories (Application Exhibit F), responses to Interrogatory No. 18 (p. 2), No. 22a (p. 8), and 22c (p. 10).
The Johnston court also rejected the claim that administering the drugs through the femoral vein with a triple lumen catheter was improper “because the mere possibility rather
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than any probability of the infliction of . . . pain, and because the possibility is dependent
upon mistakes in the procedure involving accidental punctures and other complications not
reasonably foreseeable and not constitutionally relevant.” Johnston slip op. at p. 8.3 The
court then specifically pointed out that the doctor performing the procedure in Missouri is
a board-certified surgeon and qualified to perform the procedure. Johnston slip op. at p. 8.
See also Application Exhibit F, response to Supplemental Interrogatory No. 18 (p. 2) and No.
22a (p. 8) (doctor expected to perform the procedure at Taylor’s execution, who is also
doctor that performed the procedure in the last five executions, is a board-certified surgeon).
Similarly, the Taylor district court rejected this claim. Taylor slip op. at 6.
The court in Johnston granted summary judgment against the prisoner on the
challenge to Missouri’s means of lethal injection, stating:
plaintiff’s proof, even if accepted as true and accurate, is insufficient to establish the Eighth Amendment will be violated by Missouri’s lethal injection protocol. Both qualitatively and quantitatively, the opinions of plaintiff’s expert are inadequate to rationally support a conclusion that his execution as planned carries an unconstitutional risk of the unnecessary and wanton infliction of pain sufficient to violate standards of decency in the context of the purposeful and lawful extinguishment of life.
3Petitioners Crawford and Purkett also note that one of respondent Taylor’s own experts here, Dr. Heath, provided an affidavit in Nelson v. Campbell, 541 U.S. 637, 645-647, 124 S. Ct. 2117, 2124 (2004), that appears to have supported the use of a percutaneous central line as a proper means administration of the drugs in an execution. A percutaneous central line is one inserted by “passage through the skin by needle puncture, including introduction of wires and catheters.” Stedman’s Medical Dictionary 1325 (26th ed. 1995) (definition of percutaneous). This is the type of central line challenged by respondent Taylor as described in the Amended Complaint (Doc. No. 36) in ¶ 73.
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Johnston slip op. at pp. 9-10. See also Application Exhibit D, at p. 25 (Dr. Dershwitz
testified that “I think that if the protocol as described here is implemented, the likelihood that the inmate will experience any suffering is negligible”); Application Exhibit E4, at ¶ 5 (Dr.
Dershwitz’s opinion that “a condemned inmate who is administered five grams of thiopental
sodium will be rendered unconscious, and not experience pain, for the time period necessary
to complete the execution”); Application Exhibit E, at ¶¶ 9-14 (Dr. Dershwitz’s opinions
regarding the vanishingly small probabilities that a condemned inmate given a 5 gram dose
of thiopental sodium could be conscious, and able to experience any pain associated with the
subsequent administration of pancuronium bromide and potassium chloride); Taylor slip op.
at 5.
The Eighth Amendment claims of respondent Taylor here (even assuming he has a
valid individualized method-of-execution § 1983 claim under Nelson, 541 U.S. at 644, 124
S. Ct. at 2123) are no different from those already ruled in the Johnston case. Taylor has
offered no facts here different than the facts that existed in Johnston, which the court concluded were insufficient to state a claim as a matter of law.5 In this absence of any
4Exhibit E was admitted as Defendants’ Exhibits 1-5 before the district court. 5Johnston’s general approval of Missouri’s lethal injection procedure also precludes any argument by respondent Taylor that the chance of error in his execution could render that procedure constitutionally infirm in his particular case. The Supreme Court has rejected constitutional challenges based on an “‘unforeseeable accident,’ and has presumed that state officials [will act] ‘in a careful and humane manner.’” Beardslee, 395 F.3d at 1075 (quoting Louisiana Ex rel. Francis v. Resweber, 329 U.S. 459, 461-463, 67 S. Ct. 374, 375 & 376 (1947)). “The risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.” Campbell v. Wood, 18 F.3d 662, 687 (9th Cir.
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legitimate contention by Taylor contradicting the petitioner prison officials’ demonstration that Missouri’s means of execution does not gratuitously inflict pain, the stay of execution here should be vacated. Taylor has no chance of success on the merits of the claim he raises here.
Further, with regard to the Eighth Amendment claims here, petitioners Crawford and Purkett note that the drugs used in Missouri’s lethal injection process, have also been approved, either in the context of rulings on the merits or on requests for injunctive relief or stays, by many other courts. Beardslee, 395 F.3d at 1076 (denial of stay and injunctive relief); Cooper, 379 F.3d at 1033 (denial of stay and injunctive relief); In re Williams, 359 F.3d 811, 813-14 (6th Cir. 2004) (denial of stay and injunctive relief); Abdur’Rahman v. Bredesen, 2004 WL 2246227, at *15-*18 (Tenn. Ct. App., October 6, 2004) (decision on merits), aff’d, 2005 WL 2615801, at *9-*13 (Tenn. Oct 17, 2005) (affirmed on the merits); Reid v. Johnson, 333 F. Supp. 2d 543, 552-54 (E.D. Va. 2004) (denial of injunctive relief); Johnson v. State, 827 N.E.2d 547, 552-53 (Ind. 2005) (denial of post-conviction relief); Sims v. State, 754 So. 2d 657, 666-70 (Fla. 2000) (denial of habeas relief); State v. Webb, 750 A.2d 448, 457 (Conn. 2000) (decision on the merits). None of these courts found a substantial ground to justify a stay-of-execution.
1994); State v. Webb, 750 A.2d 448, 455 (Conn. 2000). See also Cooper, 379 F.3d at 1033; Reid v. Johnson, 333 F. Supp. 2d 543, 551 (E.D. Va. 2004).
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Respondent Taylor’s past contentions that there was no full hearing on the merits in the Johnston case disregards the evidentiary hearing held in that case on August 26, 2005. See Application Exhibit D. Johnston had the opportunity to produce evidence in support of the contention that Missouri’s method of execution would result in the infliction of gratuitous pain and did so fully through documentary evidence. Id. at 5. See also Application Exhibit A (references throughout to opinions of Johnston’s expert). Johnston’s lawyer also had a full and fair opportunity at the hearing to cross-examine the state’s expert. Application Exhibit D, pp. 34-54. And now Taylor has had his own hearing, and the district court found his claims meritless (Application Exhibit Q).
As in Johnston, Respondent Taylor produced nothing to contradict the evidence that the 5 gram dose of sodium pentothal given in Missouri would render most people unconscious within a few seconds and that by the time all 5 grams are injected over 99.9999999% of the population would be unconscious. Application Exhibit A, at p. 5; Testimony of Dr. Dershwitz (Application Exhibit D), at p. 18; Affidavit of Dr. Dershwitz (Application Exhibit E), at ¶ 8. Nor did he suggest that given more time, he might find such evidence.
Respondent Taylor’s past suggestion that the sufficiency of the level of sodium pentothal administered is “belied” by the use of pancuronium bromide to “mask symptoms” of an inadequate level of anesthesia is incorrect. First, in making this point Taylor does not even attempt to refute the evidence of Dr. Dershwitz that 99.9999999% of the population
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would be unconscious after the administration of the sodium pentothal. Second, petitioners Crawford and Purkett explained the reasons for use of pancuronium bromide in their discovery responses. This drug mitigates the seizure activity and other involuntary bodily movements that will commonly result from use of sodium pentothal and potassium chloride alone and thus will result in a more peaceful, dignified, solemn, and humane death of the condemned prisoner. Application Exhibit F, at pp. 13-14.
Respondent Taylor has also suggested that there is some contradiction between the prison officials’ own statistics that “death does not occur until after the administration of the third chemical” and “the contrary contention of their expert.” Taylor appears to be perceiving a contradiction between Dr. Dershwitz’s testimony that the administration of 5 grams of sodium pentothal will cause most persons to stop breathing within a minute of drug administration (Application Exhibit E, at ¶ 8) and a table provided in discovery showing that 2 to 5 minutes pass between the time of the injection of the first drug and the time of death (Defendant Crawford’s Supplemental Answer to Plaintiffs’ Interrogatory No. 6n; Application Exhibit J6). As can be seen by the explanation of “Time of Death” in Application Exhibit J, there is no discrepancy here because death is pronounced based on electrical activity of the heart, not based on when breathing stops.
6The initial response to Interrogatory 6n did not include the explanation of “Time of Death” included at the end of the supplemental response. The supplemental response was provided shortly after respondent Taylor raised his contention that the table contradicted Dr. Dershwitz’s testimony.
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Physician’s role in executions does not violate due process. Respondent Taylor asserts that his right to due process will be violated if a physician has a role in the execution process because such a role by a physician violates medical ethics and thereby his “legitimate expectation that a physician will not use his or her special skills and position of trust to kill rather than treat.” Amended Complaint, ¶ 84 (Doc. No. 36). The district court found the claim meritless as a matter of law. Taylor slip op. at 7. There is no substantial ground for issuance of a stay.
Respondent Taylor cites the Code of Ethics of the American Medical Association to support his claim that physician involvement in the execution process is a breach of medical ethics. Amended Complaint, ¶ 81. But, it is not the AMA Code of Ethics that governs the conduct of physicians in Missouri. See Chapter 334, RSMo (§ 334.100 sets out ethical standards). The petitioner prison officials have searched for, but been unable to find, any interpretation of medical ethics imposed upon physicians in Missouri that would prohibit the physician from having a role in the execution process. A California court, however, has examined this issue with regard to California law and determined that physician involvement in executions does not constitute unprofessional conduct. Thorburn v. Department of Corrections, 78 Cal. Rptr. 2d 584, 590-91 (Cal. Ct. App. 1998).
Respondent Taylor here fails to establish a premise of his argument – physician involvement in executions is a violation of ethics in Missouri. In fact, such involvement is quite consistent with medical ethics. Physician involvement shows the medical profession’s
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compassion for all, including those sentenced to death. By their involvement, physicians are promoting the basic medical tenet of easing pain and suffering by doing what they can to make executions as humane as possible.
Even if physician involvement in Missouri executions were prohibited as unethical conduct, respondent Taylor still has not stated a claim. The claim that death-sentenced inmates have a “legitimate expectation that a physician will not use his or her special skills and position of trust to kill rather than treat” is incongruous in the context in which it is raised here. Logically, an inmate sentenced to death would have no legitimate expectation that anyone involved in the execution would direct any of his or her skills toward diminishing the likelihood of death.
Further, as the court in Abdur’Rahman v. Bredesen, 2004 WL 2246227, at *8 n.45 (Tenn. Ct. App., Oct. 6, 2004), aff’d, 2005 WL 2615801 (Tenn. Oct. 17, 2005), stated:
Were [medical licensing] requirements applicable to executions by lethal injection, the Department’s ability to carry out its statutory mandates would be undermined because many licensed medical professionals would decline to participate in the procedure. It was for this reason that the Tennessee Supreme Court noted that “no public policy is violated by allowing physicians or anyone else to participate in carrying out a lawful sentence.” Coe v. Sundquist, No. M2000-00897-SC-R9-CV (Tenn. Order Apr. 19, 2000). 2004 WL 2246227, at *9. Where public policy is not violated by a physician having a role in the execution process (even where such a role might be inconsistent with the ethical pronouncements of a professional regulating body), it cannot be said, as respondent Taylor contends, that there is any legitimate expectation that a physician will not have a role in
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executions. Without such a legitimate expectation, Taylor has no due process right that is constitutionally protected. See Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2103-04 (1979).
Further, at least in the prison disciplinary context, state created liberty interests giving rise to due process rights are generally limited to those that impose “atypical and significant hardship.” Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300 (1995). Respondent Taylor’s claim here that he has some sort of protected right that a physician not have a role in the execution process fails under the Sandin standard because the presence of a physician at his executions will not cause him any hardship at all, much less one that is atypical and significant. The presence of a physician may, on the contrary, be a benefit to Taylor.
As the district court concluded, Taylor slip op. at p. 7 and 9, Taylor fails to show either that Missouri physicians who are involved in the lethal injection process are violating their ethical obligations or that physician’s involvement violates a condemned prisoner’s due process rights. He has no likelihood of success on the merits of this claim. The court of appeals did not identify this issue as a substantial ground to justify a stay-of-execution.
Missouri’s method of lethal execution does not violate the Thirteenth Amendment. Respondent Taylor contends that Missouri’s method of lethal injection constitutes a vestige and badge of slavery and therefore violates the Thirteenth Amendment. Amended Complaint, ¶ 124. The district court found this claim too meritless as a matter of law, Taylor slip op. at 7-8. This is not a substantial ground for issuance of a stay.
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The Thirteenth Amendment provides: Neither slavery nor involuntary servitude, except as a punishment for
crime, whereof the party shall have been duly convicted shall exist within the United States or any place subject to their jurisdiction. (Emphasis added.) The Thirteenth Amendment does not apply here because this case involves neither slavery nor involuntary servitude. Even if it did, the Amendment specifically makes exception for instances in which a person is being punished for a crime. Respondent Taylor here falls within this exception. See Wendt v. Lynaugh, 841 F.2d 619, 620 (5th Cir. 1988) (plaintiff who has been convicted of a crime in no position to claim a right under the Thirteenth Amendment because exempted by precise words from its application ); Jobson v. Henne, 355 F.2d 129, 131 (2d Cir. 1966) (“Thirteenth Amendment has no bearing on the legality of the imprisonment of persons duly convicted of a crime; such persons are explicitly excepted from the Amendment’s coverage”); Draper v. Rhay, 315 F.2d 193, 197 (9th Cir. 1963) (“Thirteenth Amendment has no application where a person is held to answer of a violation of a penal statute”). Moreover, a difference in treatment based on race is required to establish a claim under the Thirteenth Amendment of imposition of a “badge of slavery.” See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 445, 88 S. Ct. 2186, 2206 (1968). Missouri’s method of execution is used on condemned prisoners of all races. Therefore, it cannot be considered as a “badge of slavery.” This ground is not a substantial ground for issuance of a stay-ofexecution.
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Effect of Recent Capital Litigation The recent grant of certiorari in Hill v. Crosby, No. 05-8794 (U.S. S. Ct., Jan. 25, 2006), does not support Taylor’s argument here that his execution is properly barred. Although the Hill case does arise from claims regarding the constitutionality of Florida’s method of lethal injection, the questions on which certiorari was granted are procedural only and have no bearing on the question here of whether respondent Taylor has established a sufficient basis on which to support an order to prohibit his execution. The questions presented in the petition for certiorari in Hill were:
1. Whether a complaint brought under 42 U.S.C. § 1983 by a deathsentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. Sec. 2254?
2. Whether, under this Court’s decision in Nelson, a challenge to a particular protocol the State plans to use during the execution process constitutes a cognizable claim under 42 U.S.C. § 1983? Hill v. Crosby Petition for Certiorari, p. i. These questions merely address the proper procedural vehicle by which to challenge a specific method of execution. The lower courts in Hill addressed only the question of jurisdiction, found it wanting, and never considered the means of execution. Hill v. Crosby, No. 4:06-CV-032-SPM (N.D. Fla., Jan. 21, 2006) (claim denied for lack of jurisdiction) (Application Exhibit H); Hill v. Crosby, No.06-10621 (11th Cir., Jan. 24, 2006) (denying stay of execution due to district court’s lack of jurisdiction to hear case in first instance) (Application Exhibit I). This Court’s interest in Hill does not
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appear to arise from any question as to the method of execution,7 but rather from an intent to better define the circumstances in which method of execution claims may be pursued as claims under § 1983, an issue expressly left open in Nelson v. Campbell, 541 U.S. 637, 644, 124 S. Ct. 2117, 2123 (2004).
Here, petitioners and the lower courts have proceeded as if the Hill issue had been decided in Taylor’s favor. And with good reason: The procedural question in Hill was ruled against Crawford and Purkett in the Johnston litigation. Johnston v. Crawford, 2005 WL 1474022, at *2 (W.D. M o. 2005). Thereafter the prison officials demonstrated at a hearing that the method was humane. Application Exhibits A and D. Petitioners do not concede that the procedural ruling in Johnston was correct. But rather than delay proceeding by arguing against it, they have presented – and now in the expedited proceedings ordered by the Eighth Circuit, recreated – the Johnston record. The conclusion in Johnston that Missouri’s execution process is lawful, reconfirmed here by the district court, is not called into question by the grant of review on the procedural question in Hill.
Even if Taylor is correct that this case properly remains a § 1983 action, the order barring his execution was still an abuse of the court’s discretion. It is an abuse of discretion
7Even if the Court’s interest were the method of execution, it should be noted that the method of execution in Florida provides for the administration of no less than 2 grams of sodium pentothal, Hill v. State, 2006 WL 91302, at footnote 3, while Missouri’s method of execution provides for the administration of 5 grams of that drug. Exhibit D, at p. 12; Exhibit E, at ¶ 4B.
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because the underlying claims here are meritless. Whichever form of action is proper, the stay of Taylor’s execution should be vacated and that execution allowed to proceed.
This view of Hill seems confirmed by this Court’s recent denial of certiorari in Bieghler v. Indiana, No. 05-8824 (Jan. 26, 2006). Mr. Bieghler raised a claim against the same three-drug sequence used in executions as does respondent Taylor in this case. Indiana, like Missouri petitioners here, did not rest on a challenge Mr. Bieghler’s use of the § 1983 as a remedial vehicle (Application Exhibit K). The district court declined to enjoin Mr. Bieghler’s execution (Application Exhibit K). The Seventh Circuit, voting 2-1, ordered a delay in the execution (Application Exhibit L), but this Court overturned that order (Application Exhibit M) and the execution proceeded.
Given where it has led, respondent Taylor’s claim here should have been pursued in a habeas action. But that is not an issue petitioners raise in seeking for vacation of the stay order, because even if this case is properly pursued under § 1983, the order prohibiting Taylor’s execution still constitutes an abuse of discretion. Again, as shown in the Johnston proceedings, discussed above, and by the district court order yesterday in this case, Missouri provides a humane method of execution that does not inflict any gratuitous pain on the condemned. The showing made by petitioners here goes beyond that shown in the Bieghler proceedings.
This Court’s vacation of the stay entered in Bieghler seems to demonstrate that its grant of certiorari in Hill case was based on a view that there was a need to resolve the
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question left open in Nelson v. Campbell, 541 U.S. 637, 644, 124 S. Ct. 2117, 2123 (2004), of when a method-of-execution claim should be brought in a habeas or civil rights suit. While that issue has been raised here, petitioners have also gone past that issue and established that Missouri’s execution process does not constitute cruel and unusual punishment. Resolution of the questions in Hill will not have any ultimate impact on Taylor’s claims here.
Interests of the Parties and the Public To the extent that the Court considers an assessment of the interests of the parties and the public appropriate here, the balance of those interests favors vacation of the stay of execution. The potential harm to respondent Taylor to be assessed is not whether his death will be the result of his execution, for he asserts that he is not challenging the fact of his death sentence. He is challenging the means of his execution. Thus, the harm to Taylor for the Court to consider here is the harm to him from execution by means of Missouri’s threedrug process. In other words, will Taylor’s execution as planned cause him significant pain that is unnecessary? See Reid, 333 F. Supp. 2d at 551. As shown above by the decision in Johnston v. Crawford, and by the district court’s order, and by the testimony of Dr. Dershwitz, respondent Taylor’s execution by Missouri’s three-drug process is humane and will not result in any significant discomfort. The harm to others and the public interest that results from an order barring Taylor’s execution on February 1, 2006, is the harm to the family of the victim and the harm to
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Missouri’s public policy that would result in an interference with the imposition of the just punishment of Taylor. The state of Missouri has determined that the death penalty is appropriate in certain circumstances. Those circumstances were found to exist in this case8 and respondent Taylor was sentenced to death. State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996), cert. denied, 519 U.S. 1152, 117 S. Ct. 1088 (1997). He has now pursued his postconviction remedies and his conviction and sentence of death have been approved. States have “a significant interest in meting out a sentence of death in a timely fashion.” Nelson,541 U.S. at 644, 124 S. Ct. at 2123. See also Gomez, 503 U.S. at 654, 112 S. Ct. at 1653; In re Blodgett, 502 U.S. 236, 239, 112 S. Ct. 674, 676 (1992). Stopping Taylor’s execution now, based on unfounded assertions of inhumanity in Missouri’s execution process, would interfere with the victim’s family’s ability to obtain closure and with the state’s policy that crimes such as Taylor’s call for the ultimate punishment.
Conclusion For the foregoing reasons, petitioners pray that this court vacate the court of appeals' latest order granting a stay of execution in Taylor v. Crawford, No. 06-1379WMJC (8th Cir. Feb. 1, 2006). Vacating the stay will vindicate once again the conclusion of a competent
8Respondent Taylor and an accomplice kidnapped a 15-year old girl while she was waiting for a school bus, bound and blindfolded the girl, threatened her w ith death, raped her, put her in the trunk of their car, and then stabbed her repeatedly with kitchen knives. The girl probably lived for 30 minutes after she was stabbed. State v. Taylor, 929 S.W.2d 209, 214 (Mo. banc 1996), cert. denied, 117 S. Ct. 1088 (1997).
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finder of fact that the execution method chosen by Missouri and 37 other states does not violate constitutional strictures.
Respectfully submitted, JEREMIAH W. (JAY) NIXON Attorney General

MICHAEL PRITCHETT Assistant Attorney General Missouri Bar No. 33848

CERTIFICATE OF SERVICE I hereby certify that on this 1 day of February, 2006, I mailed, by United States Mail, and a copy of the foregoing to the following:
John W. Simon Attorney at Law 2683 South Big Bend Boulevard, # 12 St. Louis, MO 63143-2100
_____________________________ Stephen D. Hawke

STEPHEN HAWKE Assistant Attorney General Missouri Bar No. 35242
P. O. Box 899 Jefferson City, Missouri 65102 Telephone No. (573) 751-3321 Fax No. (573) 751-9456
ATTORNEYS FOR PETITIONERS CRAWFORD AND PURKET

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 Page 1 of 125

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

MICHAEL TAYLOR, Plaintiff,
vs. LARRY CRAWFORD, et al.,
Defendant.

) ) ) ) Case No. ) 05-4173-CV-S-FJG ) ) ) JUNE 12, 2006 ) MORNING SESSION

VOLUME I PAGES 1 - 136

TRANSCRIPT OF BENCH TRIAL PROCEEDINGS

BEFORE THE HONORABLE FERNANDO J. GAITAN, JR. U.S. DISTRICT JUDGE

For the Plaintiff: For the Defendants:

MS. GINGER D. ANDERS MR. ERIC BERGER MR. MATTHEW S. HELLMAN Jenner & Block, LLP 601 13th Street NW Washington DC 20005
and MR. JOHN WILLIAM SIMON 2683 South Big Bend Blvd. St. Louis, MO 63143-2100
MR. MICHAEL PRITCHETT MR. STEVEN HAWKE Missouri Attorney General's Office P.O. Box 899 Jefferson City, MO 65102

Donna M. Turner RMR U.S. Court Reporter, Room 7552 Charles Evans Whittaker Courthouse
400 East Ninth Street Kansas City, MO 64106 (816) 512-5641

I N D E X
http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection%20Documents/Missouri... 6/16/2007

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JUNE 12, 2006

DR. MARK HEATH

Direct Examination by Ms. Anders

9

Cross-examination by Mr. Hawke

86

Redirect Examination by Ms. Anders

134

DR. STEPHEN JOHNSON

Direct Examination by Mr. Hellman

137

Cross-examination by Mr. Hawke

169

Redirect Examination by Mr. Hellman

185

DR. THOMAS HENTHORN

Direct Examination by Mr. Berger

188

Cross-examination by Mr. Pritchett

232

Redirect Examination by Mr. Berger

253

Recross-examination by Mr. Pritchett

260

JUNE 13, 2006

262

DR. MARK DERSHWITZ

Direct Examination by Mr. Pritchett

262

Cross-examiation by Ms. Anders

301

Redirect Examination by Mr. Pritchett

332

Recross-examination by Mr. Anders

338

TERRY MOORE

Direct Examination by Mr. Pritchett

340

Cross-examination by Mr. Berger

348

LARRY CRAWFORD

Direct Examination by Mr. Pritchett

363

Cross-examination by Mr. Hellman

374

Redirect Examination by Mr. Pritchett

393

EXHIBIT INDEX

PLAINTIFF'S DESCRIPTION

1 - 23 Discovery materials

24

Dr. Heath's CV

26

Print-out of package insert

28

Photo of triple lumen kit

29

Still picture of execution chamber

30

Still picture of execution chamber

RECEIVED 86 10 32 62 74 86

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31

Dr. Johnson's CV

140

32

Diagram of venous system

144

33

Demonstrative IV tubing & syringe kit

166

34

Dr. Henthorn's CV

188

35 & 36 Diagrams of circulatory system

192

39

Figure 1 prepared by Dr. Henthorn

201

40

Figure 2 prepared by Dr. Henthorn

206

41

Affidavit of Dr. Dershitz

209

42

Figure 3 prepared by Dr. Henthorn

210

43

Figure 4 prepared by Dr. Henthorn

214

44

Letter from State

219

45

Figure 5 prepared by Dr. Henthorn

220

46

Figure 6 prepared by Dr. Henthorn

222

47

Videotape of execution chamber

75

DEFT'S

2

Excerpt of Dr. Dershwitz' paper re BIS

277

* * * * * * *

2

1

MONDAY, JUNE 12, 2006

2

THE COURT: Good morning. All right. Ready to

3 begin?

4

MR. HELLMAN: Yes, Your Honor.

5

THE COURT: How about some introductions first.

6

MR. HELLMAN: Absolutely. I am Matthew Hellman

7 for plaintiff Taylor.

8

MR. SIMON: John William Simon for plaintiff.

9

MR. ZAMAN: Shahid Zaman for plaintiff.

10

MR. BERGER: Eric Berger for plaintiff.

11

THE COURT: Ms. Anders I know. All right.

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12 Let's begin.

13

As I previously indicated, no opening statements

14 would be necessary. Your pretrial briefs were very

15 informative and I think we ought to use our time wisely and

16 proceed.

17

MR. HELLMAN: In that spirit then, Your Honor,

18 plaintiff would just like to note for the record that

19 although plaintiff had said in its pretrial brief that we

20 would have seven witnesses available for the hearing today

21 to testify, three expert witnesses and four of the party

22 defendants, John Does One, Two, Three and Five. Despite

23 our best efforts we have been unable to secure the presence

24 of the Doe defendants. We have, because we don't know

25 their names and have not tried to obtain their names, we

3

1 asked if we could serve their counsel, Mr. Pritchett, and

2 pass on service to them. Counsel refused. And although we

3 tried to effect service, service was refused.

4

Similarly, we attempted service on Director

5 Crawford who is their employer and we thought that would be

6 an appropriate person in this circumstance. Service was

7 also refused there.

8

So we have been unable to secure their attendance

9 and we believe it's inappropriate that these party

10 defendants are not here. Opposing counsel is free to quash

11 the subpoena, but -- or move to do so. But short of that,

12 we believe service would be appropriate on them. We ask

13 the court to rule as such.

14

THE COURT: Response?

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15

MR. PRITCHETT: As I think was admitted, there

16 was no service. Even if there had been service on either

17 myself or on Mr. Crawford, it still would have been

18 inappropriate and invalid service because service of

19 subpoenas must be made on individuals.

20

Additionally, in terms of whether or not the

21 subpoena should be quashed even if it had been served, we

22 have noted several times during the course of this

23 litigation the importance of maintaining the

24 confidentiality, the privacy of the John Does, and we

25 believe that interest outweighs any need for the testimony

4

1 of those individuals, especially given the written

2 interrogatory responses from all of the Does, as well as

3 the deposition of Dr. John Doe One.

4

THE COURT: Okay. I agree with the latter.

5 Let's proceed.

6

MR. HELLMAN: And one final point, Your Honor.

7 We understand that one of the defendants is in the

8 courtroom today and we would invoke the rule against

9 witnesses and ask that he not be present when our witnesses

10 testify.

11

THE COURT: Who would that be?

12

MR. PRITCHETT: Mr. Crawford is a defendant in

13 this case and I think as a defendant Mr. Crawford is

14 entitled to be present during the testimony.

15

THE COURT: Is that who you are speaking of?

16

MR. HELLMAN: Yes, I am.

17

THE COURT: Objection is overruled.

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18

MR. PRITCHETT: I will note for full disclosure,

19 since the idea has been brought up, Terry Moore, director

20 of the Division of Adult Institutions, who is not a

21 defendant, is in the courtroom and if the rule as to

22 witnesses is invoked we would ask that the expert

23 witnesses, other than the ones testifying, be excluded as

24 well.

25

MR. HELLMAN: It's my understanding that the

5

1 rule of exclusion does not apply to expert witnesses who

2 are always able to hear all testimony whether expert or

3 otherwise, but it does apply as a matter of course to a

4 testifying defendant.

5

THE COURT: I think it's at the discretion of the

6 court and it's the court's discretion that any witness that

7 will be testifying will be excluded. Defendant's

8 representative is entitled to be here and otherwise any

9 other -- if you're invoking the rule, that's the way the

10 rule is going to be applied. Is that your request?

11

MR. HELLMAN: I'm sorry, Your Honor. Are you

12 saying that the defendant's witnesses may stay, but our

13 experts may not?

14

THE COURT: No, I said the defendant's

15 representative, Mr. Crawford, who is a party in the case,

16 he's entitled to be in this proceeding. All other

17 witnesses will be excluded.

18

MR. HELLMAN: Expert or otherwise?

19

THE COURT: That's what I said.

20

MR. HELLMAN: We would think normally experts

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21 would be allowed --

22

THE COURT: I have already ruled on that. You're

23 wasting time. Let's move.

24

MR. HELLMAN: All right. Thank you, Your Honor.

25

THE COURT: If you're an expert and you're going

6

1 to be testifying, it's time to step out of the courtroom,

2 and any other witnesses.

3

MS. ANDERS: As a preliminary matter, Your Honor,

4 before we call our first witness, plaintiff would like to

5 admit a bunch of exhibits just up front, if that would

6 be --

7

THE COURT: Is this by stipulation?

8

MS. ANDERS: I understand the defendants have

9 stipulated to the authenticity, or will stipulate to the

10 authenticity of the interrogatory responses of the Doe

11 defendants and the document of the execution records

12 received in discovery.

13

MR. PRITCHETT: That's correct, Your Honor,

14 that we have agreed to stipulate to the authenticity of

15 interrogatory responses and of the execution records that

16 have been supplied by the State. I was reserving consent

17 and stipulation to the merits, the relevance of them. I

18 think I will withdraw that, but I would like to see

19 specifically what they are before I would do that.

20

The interrogatory answers, I know what those

21 are. And the execution records from the last six, is it

22 everything?

23

MS. ANDERS: It is everything that you supplied

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24 us. 25

MR. PRITCHETT: Okay. If we supplied it as part 7

1 of our discovery, we will stipulate to that.

2

Is there anything else other than those

3 documents?

4

MS. ANDERS: There's also the answer of John Doe

5 One in response to the court's interrogatories.

6

MR. PRITCHETT: We would stipulate to that.

7

MS. ANDERS: And the deposition transcript, the

8 deposition of John Doe One. This is the unredacted

9 version.

10

MR. PRITCHETT: We'll stipulate to the admission

11 and use of the deposition of John Doe One. There is

12 identifying information. There is a redacted version as

13 well. We, of course, think the court would be able to use

14 it for any purpose it wants. We would not like the

15 nonredacted version to be part of the public record. We

16 would like it to be under seal.

17

THE COURT: Is that agreed by agreement?

18

MS. ANDERS: That would be fine, Your Honor.

19 There are a couple of quotations in the transcript on which

20 we don't agree, we weren't able to agree on.

21

THE COURT: You don't agree that they're

22 identifying testimony, is that what you're saying?

23

MS. ANDERS: There is one portion which we do not

24 agree subject to a protective order. I don't think you've

25 ruled on that, but everything else can be agreed to.

8

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1

THE COURT: All right. With regard to the part

2 that's in dispute we'll take up subsequent to this hearing

3 in terms of whether it's subject to disclosure or not.

4

MS. ANDERS: So we should admit the

5 unredacted --

6

THE COURT: Subject to -- and, you know, it would

7 be nice to have all the exhibits stipulated to and we

8 wouldn't have to waste the time this morning doing that.

9 Maybe the way to do that is assume it's stipulated to

10 unless some objection is raised to the contrary. Okay?

11

MS. ANDERS: Thank you, Your Honor.

12

MR. PRITCHETT: May I ask if there is a set of

13 the exhibits that are marked so it will be easier for us to

14 follow?

15

MS. ANDERS: Yes, we have a set that we're going

16 to have admitted as exhibits.

17

MR. PRITCHETT: As we go along? Okay.

18

MS. ANDERS: And, Your Honor, would you like to

19 place the unredacted version of the John Doe One transcript

20 in your binder?

21

THE COURT: That's fine. I was part of the

22 deposition so I really don't require one I don't think.

23 At this time anyway. And I think we have a copy, not the

24 redacted copy, but --

25

MS. ANDERS: And the last thing we would like to

9

1 admit is the transcript of the Crawford deposition.

2

MR. PRITCHETT: Although the witness is here to

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3 testify, we'll consent to the deposition itself.

4

MS. ANDERS: At this point, Your Honor, plaintiff

5 would like to call Dr. Mark Heath to the stand.

6 MARK HEATH, called as a witness on behalf of the

7 Plaintiff, being first duly sworn, testified:

8 DIRECT EXAMINATION BY MS. ANDERS:

9 Q Dr. Heath, would you state your name, and spell it for

10 the record, please.

11 A My name is Mark Heath. The first name is M-a-r-k.

12 And the last name is H-e-a-t-h.

13 Q And what is your occupation?

14 A I'm an anesthesiologist.

15 Q Where do you practice?

16 A In New York City at Columbia University.

17 Q How long have you worked as anesthesiologist?

18 A Since I finished my training. For about 15 years.

19 Q Are you board-certified?

20 A I am, yes.

21 Q And do you induce general anesthesia as part of your

22 practice in the operating room at Columbia?

23 A Yes, routinely.

24

MS. ANDERS: At this point I'd like to offer

25 Dr. Heath's CV. For the record, I'm showing it to defense

10

1 counsel. This has been previously marked as Plaintiff's

2 Exhibit No. 24.

3

May I approach the witness, Your Honor?

4

THE COURT: You may. It will be received,

5 assuming there's no objection.

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6

MR. HAWKE: No objection.

7 Q (By Ms. Anders) Is that your CV, Dr. Heath?

8 A Yes, it is.

9 Q Does it accurately reflect your training and

10 qualifications?

11 A It does.

12 Q Have you previously participated in cases involving

13 lethal injection?

14 A I have, yes.

15 Q About how many have you participated in?

16 A About 30 cases.

17 Q And as part of your -- in connection with your

18 participation in these cases, what research have you done?

19 A I have reviewed the protocols and procedures from

20 every state that conducts lethal injection and the federal

21 government. I have attended hearings where participants in

22 lethal injection procedures have testified. I have read

23 depositions that they have provided. I have reviewed

24 hundreds of autopsy reports from lethal injection

25 procedures. Many toxicology reports. I have inspected the

11

1 facilities that -- the chambers, the work rooms where 2 lethal injection is conducted from. I have corresponded 3 with the individuals who initially created the first lethal 4 injection protocols. 5 Q And so as part of that research, you have reviewed in 6 detail other states' lethal injection protocol? 7 A I have, yes. 8 Q And are you familiar basically with other states'

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9 practices with respect to safety?

10 A I am, yes.

11

MS. ANDERS: Your Honor, we'd like to offer

12 Dr. Heath as an expert in anesthesiology and medicine and

13 lethal injection procedures.

14

MR. HAWKE: No objection, Your Honor.

15 Q (By Ms. Anders) When did you begin participating in

16 lethal injection litigation?

17 A I think it was in 2002.

18 Q At that time did you have a position on the death

19 penalty?

20 A I did not at that time, no.

21 Q Do you have a position on the death penalty now?

22 A I do, yes.

23 Q And what is that?

24 A I think it's very problematic to try to arrive at the

25 decision as to whether or not to execute a person based on

12

1 an adversarial process. 2 Q Do you think that lethal injection can be performed 3 humanely? 4 A Yes, it can. 5 Q Could you explain your view on that? 6 A Well, many household pets, cats and dogs, are given 7 lethal injection as part of what we call euthanasia or 8 putting an animal to sleep and that's done by qualified 9 veterinarians using appropriate drugs. It's done routinely 10 thousands of times a day in our country. And I am very 11 confident that the fashion in which it's being performed is

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12 a humane process. 13 Q Why did you agree to testify in this case? 14 A One of the big problems is that the methods that are 15 being used for lethal injection in Missouri and some other 16 states conflicts with how it's being done for animals, with 17 the humane method that is being used for animals, is being 18 done in a completely different method that poses enormous 19 and unacceptable risks. 20 Q And have you reviewed the documents produced in 21 discovery by the defendants in this case? 22 A I have, yes. 23 Q Specifically, have you reviewed interrogatory 24 responses by the John Doe defendants and defendant 25 Crawford?
13
1 A I have, yes. 2 Q Have you reviewed the deposition testimony of John Doe 3 One? 4 A Yes. 5 Q And did you attend an inspection of the execution 6 facility at Bonne Terre, Missouri? 7 A I did. 8 Q At the inspection did you have the opportunity to 9 observe the equipment as it was set up -- as it would be 10 set up for an execution, and did you also have the 11 opportunity to speak to people there about the equipment? 12 A Yes, I did. 13 Q I'm going to be asking you questions about some of the 14 documents produced by the defendants so I'd just like to
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15 hand you a couple of the exhibits that have already been

16 admitted.

17

This is a verified record that I'm showing

18 opposing counsel of John Doe One's answers to

19 interrogatories, all three sets, that's Plaintiff's

20 Exhibit 1, 6, and 11, as well as the redacted transcript

21 of the John Doe deposition.

22

May I approach, Your Honor.

23

THE COURT: Okay. Ms. Anders, when you turn your

24 back to the microphone I couldn't hear a word that you

25 said. Which exhibits are you offering?

14

1

MS. ANDERS: I would like to hand the witness

2 Plaintiff's Exhibits 1, 6, 11 and 12.

3

THE COURT: Okay. You may approach the witness.

4

MS. ANDERS: Thank you.

5 Q (By Ms. Anders) So, Dr. Heath, based on your review

6 of Director Crawford's interrogatory answers, could you

7 briefly state your general understanding of the components

8 of the execution process in Missouri?

9 A Yes. There are four main stages to it. The first

10 stage is the achieving of the intravenous access. The

11 second stage is the administration of general anesthesia,

12 and that's important because the third and fourth stages

13 would be extremely painful if that second stage, the

14 general anesthesia stage, was not properly performed. And

15 then the third stage is the administration of a paralyzing

16 drug that ensures that the procedure appears serene and

17 peaceful. And then the fourth stage is the administration

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18 of the actual drug that kills the prisoner, stops the 19 heart. 20 Q And based on your review of the documents, is the 21 manner of performing each of these component parts written 22 down or formalized anywhere? 23 A It's -- no, it's not written down in any documents or 24 procedures or policy manuals, if that's what you mean. 25 Q Based on what John Doe One has testified to, have
15

1 these components varied in previous executions?

2 A Yes, there has been variation of each of these four

3 stages or components of the execution.

4 Q Could you just explain briefly how the stages have

5 varied?

6 A Well, that first stage, which is the achieving of the

7 intravenous access, in some occasions it's performed with a

8 femoral vein access. In some occasions it's performed in

9 what I believe is a subclavian access, under the collarbone

10 that's also been described as being in the neck. And then

11 there's also been at least one occasion where it was

12 performed through what's called a peripheral IV, which is

13 an IV in the hand or arm or the foot. So that's variations

14 in that first stage.

15

Then in the second stage, which is the provision

16 of the general anesthesia to reach the level of

17 unconsciousness, there has been significant variations

18 apparently in the doses of the thiopental, the drug that

19 provides the anesthesia. The third stage is the delivery

20 of the paralyzing drug, and there appear to have been

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21 dosing variations in that drug. And the same applies for 22 the fourth stage, the potassium that stops the heart, there 23 have been variations for how much of that has been 24 administered. 25 Q And based on your review of other states' practices
16
1 with respect to executions, is it standard in other states 2 to provide written guidelines or instructions to be 3 followed by the execution team? 4 A I wouldn't even call them guidelines. States have 5 what are called protocols. It's a set of instructions that 6 detail the drugs, the doses, the flush solutions, and a 7 myriad of other features of the execution procedure. It's 8 a complicated procedure, and those protocols set it forth 9 in very clear sequential instructions exactly what the 10 personnel need to do. And that's a standard in other 11 states. 12 Q And based on your review of other states' procedures, 13 do you think that maintaining a written protocol is a 14 positive step towards ensuring that an execution is humane? 15 A I think it is extremely important. It's important 16 to remember that in most cases the personnel who are 17 performing the execution, to our knowledge, are not 18 individuals who are familiar with the provision of general 19 anesthesia or even the injection of medical drugs or 20 setting up IVs, so it's very important that they are given 21 very clear and clean, understandable instruction that they 22 can follow to ensure that the procedure unfolds as it's 23 supposed to.
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24 Q And to your knowledge, does any other state besides 25 Missouri not maintain a written protocol?
17

1 A Everywhere else, to my knowledge, has a written

2 protocol.

3 Q Why do you think it is important to have a written

4 protocol?

5 A Again, if there's no written protocol, then the

6 interests of the State or the Department of Corrections,

7 which are to ensure that the prisoner dies humanely, and

8 the interest of the prisoner, which at the very least is to

9 ensure that what happens to him is humane, are not defended

10 against ad hoc changes or vagaries or misunderstandings or

11 absent-mindedness or other problems that can occur when a

12 complex endeavor is undertaken by a group of people.

13

Protocols are also important because it's very

14 important to rehearse these procedures, and the only way

15 you can rehearse something is if you have the steps written

16 down. Just like rehearsing a play, you need to have a

17 script to rehearse off of. And if you don't have the

18 written procedures there's no way of reliably making sure

19 all of these are followed in the rehearsals as well as when

20 you actually perform it.

21 Q And based on your review of the evidence in this case,

22 do you have an opinion as to who determines what happens in

23 the execution?

24 A In Missouri?

25 Q Yes.

18

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1 A John Doe One is the person who appears to be

2 functionally in charge of everything that happens, of

3 designing it and of how things are carried out.

4 Q And John Doe One is the doctor who participates in the

5 execution in Missouri?

6 A That's right, yes.

7 Q And what is your understanding as to which parts of

8 the execution procedure John Doe One has control over?

9 A My understanding is that he was involved at the very

10 beginning of Missouri's modern execution history. He even

11 talks about being involved in the cyanide decision, using

12 cyanide, and then when they decided not to use a machine

13 that they had been using, he was called in to take over the

14 whole process.

15

As he says, there's nobody else involved in the

16 process who has a medical background. And there are no

17 other states where physicians are taking the role that he's

18 taking so there is nobody else for him to talk to other

19 than him, as he describes it.

20

So what the drugs are, the actions of the drugs,

21 how the IV tubing is configured, how the IV access is

22 achieved, how many syringes there are, how much fluid is in

23 each syringe, how much drug is in each syringe, exactly

24 what the execution injectors do, I think he's basically set

25 up everything about this in terms of the nonsecurity

19

1 issues. 2 Q And to your knowledge, is there any other state in

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3 which sole discretion of the medical aspects of the 4 procedure is seated in a single person without any guiding 5 protocol? 6 A The way it bureaucratically appears to work in most 7 states is the commissioner of corrections or some 8 administrative type person is ultimately responsible for 9 everything that happens in the prison including everything 10 that happens in the executions, but from a functional point 11 of view, there's always a group of individuals who actually 12 are in charge of the mechanics of the lethal injection 13 procedure itself. So this is a unique situation where 14 there is one individual and everything appears to have been 15 vested in him. Everybody, including the administrators, do 16 what he says. And often he doesn't even tell them what 17 he's going to do or what changes he's made. And that's, to 18 my knowledge, unique. 19 Q So just to clarify, the discretion about the medical 20 aspects of the procedures is vested in John Doe One, to 21 your understanding? 22 A Yes. That's how he describes it. 23 Q And have you reviewed John Doe One's answers to 24 interrogatories and his deposition testimony? 25 A I have, yes.
20
1 Q And based on your medical knowledge and experience, 2 have you reached any conclusions with respect to John Doe 3 One's medical judgment and his competence with respect to 4 certain issues? 5 A With respect to --
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6 Q Certain issues. Have you reached any conclusions?

7 A Well, certainly with respect to issues about the

8 induction and maintenance of general anesthesia, he's made

9 numerous important factual statements that are completely

10 wrong and make it clear that he's not a person who's

11 trained or credentialed or proficient in administering or

12 understanding general anesthesia and the drugs that we use.

13

He also has described a difficulty with numbers,

14 which is very problematic for a person who is going to be

15 supervising or drawing up drugs and the various

16 quantitative aspects of that. And in the addition to

17 flat-out factual errors, important factual errors, I also

18 have concerns about judgments that he's made, medical

19 judgments.

20 Q What do you base your opinion on?

21 A On reading his depositions, or testimony and

22 interrogatories.

23 Q Okay. So first, I'd like to talk with you about John

24 Doe One's determination and his recordkeeping with respect

25 to the doses of thiopental given at an execution. Have you

21

1 reviewed John Doe One's testimony with respect to his 2 determination of how much thiopental to give at the most 3 recent executions? 4 A Yes, I have. 5 Q The previous five executions. And based on Doe One's 6 deposition testimony, can you tell me how much thiopental 7 Doe One prepared in each of the last five executions? 8 A I can give you my -- a guess, but it's very unclear

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9 exactly what happened because he's -- he has a poor memory

10 about what has transpired and has had to correct himself on

11 several occasions going back and forth about what was

12 given. And also he has, as he says, a numerical dyslexia,

13 so it's difficult for him to be certain about numbers.

14

As best as I can tell, somewhere between --

15 somewhere five grams or below may have been given. In many

16 it's possible that it was two and a half grams, but it's

17 very difficult to see what happened.

18

MS. ANDERS: Your Honor, may the record reflect

19 that I am showing defense counsel what has been marked as

20 Plaintiff's Exhibit 25.

21

THE COURT: The record will reflect that.

22

MS. ANDERS: Thank you. And may I approach the

23 witness, Your Honor?

24

THE COURT: You may. And you don't need to ask

25 each time. Just go do what you need to do.

22

1 Q (By Ms. Anders) Have you seen this before? 2 A Yes, I have. 3 Q Is that the chemical log in which the -- how each drug 4 is used is recorded? 5 A Yes, it is. 6 Q Okay. I'd like to draw your attention to a portion of 7 the testimony of John Doe One, just looking at page 14, 8 I'll read it to you so you don't need to follow along if 9 you don't want to. He states, "I was unable to mix this. 10 We show that we gave the five grams because we have no 11 provision for showing that we disposed of three and gave

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12 two, or disposed of two and gave three, because this has

13 not been set up that way. We either show we used it all or

14 disposed of it all."

15

Based on that testimony, what is your conclusion

16 with respect to the accuracy of the chemical log that I

17 just handed you?

18 A Well, the chemical log has a column for the amount

19 that's injected, and the physician's testimony says that of

20 the amount they drew up, of the amount that was available,

21 some was given, some was not given, but there is no record

22 of exactly how much was -- falls into each category. So

23 there is a log here that says numbers, but according to the

24 physician's testimony, they may or may not be accurate.

25 Q And is it possible the tell from the chemical log how

23

1 many thiopental bottles were checked out? 2 A Yes, it is. 3 Q And looking at the chemical log, has that number 4 varied over the past five executions? 5 A Well, in some cases it says that ten bottles were 6 checked out. In some cases -- one case it says ten bottles 7 were checked out, but then that number is changed to an 8 eight. In other cases -- in another case it says six. In 9 another case it says five. So there's variation of 10 probably between five and ten bottles. 11 Q And based on that fact and the doctor's testimony, do 12 you think that both the intended dose and the actual dose 13 of thiopental have varied in the past several executions? 14 A Well, clearly the intended dose has, in all

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15 likelihood, varied. If they checked out ten bottles on

16 some occasions and five bottles in other occasions, that

17 appears to be an intent to give different amounts.

18

As far as the actual amount that's delivered, we

19 have no way of knowing how much active thiopental drug was

20 actually delivered into the prisoner's circulation.

21 Q And based on your review of the discovery responses,

22 who oversees the process of recording the drugs that are

23 given in the chemical log?

24 A The physician.

25 Q John Doe One?

24

1 A John Doe One. 2 Q And to your knowledge, is the actual dose given at the 3 execution recorded anywhere? 4 A No, it's not. 5 Q In your practice inducing general anesthesia, do you 6 record the dose of anesthetic that you give? 7 A Yes. It's very important to record the precise amount 8 of drugs that are administered. 9 Q So that's standard practice to record doses? 10 A Yes. That's essential standard practice. 11 Q And do you train residents? 12 A I do, yes. 13 Q Do you teach residents about the importance of 14 recording actual doses given? 15 A It's one of the first things they learn how to do is 16 to complete an accurate chart or record of what was done 17 during a procedure.

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18 Q If a resident consistently fails to record doses, what 19 would be the consequences? 20 A If they consistently failed, after being admonished 21 and told they needed to do this properly, they wouldn't be 22 allowed to continue through the residency. 23 Q Does John Doe One's apparent unconcern with recording 24 precise actual doses raise concerns in your mind? 25 A Yes. It's very sloppy and it reflects a lack of
25
1 understanding of the importance of the quanity of drugs 2 that are being given. 3 Q In an execution setting, does the actual dose of 4 thiopental that was given matter? 5 A It matters enormously. As I described before, in the 6 four phases of the execution or the lethal injection 7 procedure, that second phase is the only phase that 8 provides anesthesia. So if the amount of thiopental given 9 is inadequate, then the anesthesia will be inadequate and 10 the procedure will be agonizing. 11 Q Based on your review of materials produced in 12 discovery, is it possible to conclude that an inmate was 13 sufficiently anesthetized in any particular execution? 14 A No. Based on the material that's been provided, one 15 can't conclude either way whether these prisoners were or 16 were not properly anesthetized. 17 Q And is part of that because you don't how much 18 thiopental was actually given? 19 A Part of that is because we don't know how much 20 thiopental was successfully delivered into their
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21 circulation and it's partly because the paralyzing drug is

22 given, so regardless of whether or not the execution in

23 fact is humane, it will appear to be peaceful and tranquil.

24 Q Thank you.

25

Now I'd like to ask you a few questions about

26

1 John Doe One's -- your opinions as to Joe Doe One's 2 training with respect to general anesthesia. Do you have a 3 conclusion as to whether Joe Doe One is qualified to 4 oversee the induction of general anesthesia? 5 A No, he's not. If he were applying for a job as an 6 anesthesiologist in any hospital in this country, there is 7 no possibility that he would be hired as such. He's not 8 qualified to do this in any manner. 9 Q So just to clarify, you do have a conclusion? 10 A Sorry. I do have a conclusion, yes, and that is it. 11 Q I'm sorry. Would you restate? 12 A My conclusion is that he is not in any way qualified 13 to perform or supervise the administration and the 14 induction, the maintenance of general anesthesia. 15 Q Does he have any training in general anesthesia? 16 A Apparently not. 17 Q Why is it necessary to have training in general 18 anesthesia in order to determine doses of anesthetic and 19 induce general anesthesia? 20 A Anesthesiology is a very complex task. It takes four 21 years of medical school and then four years of 22 post-graduate training to have acquired the knowledge base 23 and skill set and judgment to carry it out in a safe and an

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24 effective way. 25 Q And based on your review of John Doe One's testimony,
27
1 did he make any statements that raise concerns in your mind 2 regarding his understanding of general anesthesia in 3 general and thiopental specifically? 4 A Yes, he made numerous such statements and makes it 5 clear that he has not undergone that training. He doesn't 6 understand what this drug is and how it works. 7 Q I'd like to draw your attention to a statement that 8 John Doe One made in his deposition. This is page 27 of 9 the transcript, and I am reading now. He responds to a 10 question about thiopental, he says, quote, "The problem 11 with all these drugs is if you give the dose and you do not 12 get the effect you need, you cannot simply add more drug to 13 get the dose. You must repeat the entire dose." Do you 14 agree with that statement? 15 A That's completely false. It flies in the face of our 16 practice, what anesthesiologists do. 17 Q Why is that? 18 A When we give a dose of drug, we're anticipating a 19 certain effect, but we're aware of variability between 20 individuals and how they respond to drugs so if we don't 21 achieve that effect, we gauge by how much we missed that 22 intended or desired effect and we do sort of an on-the-fly 23 calculation that's part art and part science as to how much 24 additional drug would be required to remedy the situation, 25 and that amount of additional drug might be less than what
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1 we gave before or it might be more than what we gave before 2 or it could, by coincidence, be the same amount. But his 3 assertion that you have to go ahead and give the same 4 amount again is ridiculous. 5 Q So do you consider this a significant factual error? 6 A Yes. It's consistent with him not understanding what 7 anesthesiologists do, which isn't surprising. He hasn't 8 been trained as an anesthesiologist. 9 Q I'd like to draw your attention to another statement 10 from the deposition transcript. Page 26, line 17. And 11 again in discussing thiopental the doctor said, and I 12 quote, "The drug was chosen because it doesn't cause 13 cardiac vascular depression so it means you can give a lot 14 of it and your heart will still beat fine." First, could 15 you define cardiac vascular depression for us? 16 A What he is talking about is some drugs can cause 17 effects on the ability of the heart muscle to contract or 18 squeeze and that means that the heartbeat or the pulse is 19 weaker. The heart can't eject as much blood with each 20 heartbeat. We also talk about vascular depressants, the 21 drugs that lower blood pressure. Blood vessels have 22 muscles that can constrict to tighten up or narrow the 23 blood vessels and raise the blood pressure, and some drugs, 24 some anesthetic drugs, as a side effect cause those muscles 25 to relax and then that lowers the blood pressure. So a
29
1 drug that causes cardiac vascular depression is one that 2 depresses the pumping function of the heart and also the
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3 blood pressure. 4 Q And do you agree with John Doe One's statement that 5 thiopental does not cause cardiac vassular depression? 6 A He's got it 100 percent backwards. Thiopental is 7 notorious for causing cardiac vascular depression, 8 especially in patients who have had trauma. John Doe One 9 talks about anesthetizing people in trauma situations, 10 which is a scary proposition if he thinks that thiopental 11 does not cause cardiac vascular depression. There were 12 many, many military deaths that occurred back in World 13 War II and the Korean War when thiopental was given to 14 trauma victims before people understood this effect. 15 Q So would you expect that an anesthesiologist would 16 make this type of factual mistake? 17 A No, it's not conceivable. 18 Q Okay. I'd like to draw your attention to another 19 statement from the deposition transcript. This is on page 20 95, line 4. Again in response to a question about 21 thiopental, John Doe One stated, I quote, "You want a rapid 22 onset of the drug, and these drugs are rapid onset drugs. 23 If you give them slowly they just don't work." Do you 24 agree with the statement that it's necessary to inject 25 thiopental very quickly?
30
1 A That statement is false. 2 Q And why is that? 3 A I just know factually I have injected -- used 4 thiopental many, many times to induce general anesthesia. 5 I do not inject it as quickly as I can. I inject it at a
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6 measured rate and it, nevertheless, achieves the desired

7 effect, the effect that I'm looking for.

8

He also talks about the drug being metabolized

9 while it's traveling up the arm, and that's just not true.

10 That's not how thiopental works.

11 Q Do you consider this a significant error?

12 A Yes. It just shows that he doesn't know what he's

13 talking about when it comes to the use of thiopental.

14 Q And again, would you expect anesthesiologists to make

15 this type of factual error?

16 A No.

17 Q Is it necessary to understand the pharmacology of

18 thiopental when determining the dose of thiopental to be

19 used for induction of general anesthesia?

20 A Yes, it is.

21 Q And why is that?

22 A Thiopental is a complicated drug and a lot of its

23 actions are counter-intuitive. It's a drug that we

24 consider to have -- it's a high-risk or low safety margin

25 drug, and it's important to understand how it works, how it

31

1 travels around the body, where it exerts its effects, and 2 understand how different individuals -- how their responses 3 can vary. 4 Q And does John Doe One have any training in the 5 pharmacology of thiopental? 6 A No. 7 Q Based on his testimony and what we have spoken about 8 so far, do you think that he understands the pharmacology

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9 of thiopental?

10 A No, it's clear that he doesn't.

11

MS. ANDERS: May the record reflect that I am

12 showing opposing counsel what has been marked as

13 Plaintiff's Exhibit 26.

14

MR. HAWKE: We have not been provided a copy of

15 that.

16

MS. ANDERS: I'm sorry.

17 Q (By Ms. Anders) Have you seen this before, what I

18 just gave you?

19 A I have, yes.

20 Q And what is it?

21 A This is a printout of what's called a package insert.

22 A lot of times when drugs come, they come in a box and

23 there's a folded-up piece of paper inserted in that box

24 that has a lot of technical information about the compound.

25 Q And would you and other anesthesiologists generally

32

1 rely on this when preparing and administering thiopental?

2 A Yes. It's always available so if you have a question,

3 if you want to know something about a certain situation,

4 then it's available in the kit. Like an instruction

5 manual.

6

MS. ANDERS: I'd like to offer Plaintiff's

7 Exhibit 26 into evidence.

8

MR. HAWKE: No objection, Your Honor.

9

THE COURT: It will be received.

10 Q (By Ms. Anders) If you'd look at page two for me,

11 Dr. Heath, under the heading Warnings, could you read the

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12 sentence that starts with the words "This drug"? 13 A It says, "This drug should be administered only by 14 persons qualified in the use of intravenous anesthetic." 15 Q In your opinion, is John Doe One qualified in the use 16 of intravenous anesthetics? 17 A No, he's not. 18 Q Are your concerns about John Doe One's understanding 19 of intravenous anesthetics limited to thiopental? 20 A No. There are other intravenous anesthetics that he 21 clearly doesn't understand what they are or what they do. 22 Q Is Versed a commonly-used intravenous anesthetic? 23 A Yes. Versed is one of the most commonly used 24 anesthetic drugs in procedures. 25 Q In John Doe One's interrogatory answers he states
33
1 that midazolam is the antidote to Versed, and that's the 2 answer to Interrogatory No. 37. Do you agree with that 3 statement? 4 A I'm sorry. He says midazolam is the antidote -5 Q To Versed. 6 A To Versed. No, that's completely incorrect. He has 7 it 100 percent backwards. 8 Q And why is that? 9 A There is an antidote to Versed, but it's not 10 midazolam. Midazolam in fact is Versed, and it has 11 sedative properties. The antidote to Versed is something 12 that would wake you up, make you more awake if you've been 13 given Versed, so he's got it completely backwards. 14 Q Is that a factual error that you would expect
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15 anesthesiologists to make? 16 A No. No anesthesiologist would make that error. 17 Q Does John Doe One's incorrect understanding of Versed 18 raise doubts in your mind as to his understanding of 19 intervenous anesthetics? 20 A Yes. If he's confusing midazolam and Versed and the 21 antidotes, he doesn't know what he's talking about. 22 Q I'd like to draw your attention to another portion of 23 the testimony of John Doe One's deposition. This is line 24 26 -- I'm sorry, page 26, and John Doe One states that he 25 is dyslexic. Does the doctor's dyslexia also raise
34
1 concerns in your mind regarding his ability to adequately 2 determine doses of general anesthesia and to proceed with 3 induction of general anesthesia? 4 A Yes. He described difficulty completing a cable bill 5 I think because he was transposing numbers and even though 6 he had a couple of hours to work on it things weren't 7 working properly for him in terms of getting the numbers 8 right. And some people have that problem and those people 9 are unsuitable for anesthesiology or other medical 10 specialties that require a lot of calculations on the fly. 11 Q Would that affect his ability to be a surgeon 12 necessarily? 13 A No, he could well be very gifted with his hands and 14 with anatomy. That's a completely different kind of 15 activity than having to make precise and rapid calculations 16 about drug doses. 17 Q So in sum, do you think that John Doe One, based on
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18 his training and testimony, is competent to determine doses 19 of and induce general anesthesia? 20 A No. He should not be entrusted with the provision, 21 the induction, the administration, or the maintenance of 22 general anesthesia. 23 Q Do you think that entrusting John Doe One with those 24 responsibilities creates a significant risk that an inmate 25 will be inadequately anesthetized and, therefore, may
35

1 suffer severe pain during an execution?

2 A Yes, it does. Any time you entrust a complicated

3 activity like that to somebody who isn't qualified or

4 competent to do it, then that risk develops.

5 Q Now I'd like to ask you a few questions about John Doe

6 One's stated inability to mix five grams of thiopental, so

7 I'd like to direct your attention to John Doe One's answer

8 to the court's interrogatories, this is No. 5, where John

9 Doe One states that he was unable to administer the planned

10 five-gram dose of thiopental because of, quote, difficulty

11 dissolving powder in the solution that he was using.

12

In your experience, is the powder in the

13 thiopental bottle soluable in solution?

14 A Yes, it is. One of those properties of that powder

15 preparation is that we're able to dissolve it in solution.

16 Q And what does that mean?

17 A Like when you put sugar in iced tea, you take a

18 spoonful of the sugar and you put it in the tea and you mix

19 it around and that solid material, those crystals,

20 disappear and they are now in solution in the iced tea.

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21

It's the same with the thiopental powder. The

22 powder is added into an aqueous or a water solution and one

23 mixes it until it disappears.

24 Q What are the reasons that the powder in the thiopental

25 bottle might not dissolve easily?

36

1 A Well, one of the properties of thiopental is it does

2 dissolve quickly, just like the sugar that goes in the iced

3 tea. If you put a spoonful of what you think is sugar in

4 the iced tea and you mix it and there's still, no matter

5 how much you mix it, grains of stuff left over, then there

6 may be sand or something else in that sugar. It's not all

7 sugar.

8

The same with thiopental. One of its properties

9 is that you can put it in water and it will dissolve. So

10 if it doesn't dissolve, then you have to worry that maybe

11 the preparation is not pure thiopental, that it's degraded;

12 or if there's been a manufacturing error, an error in the

13 shipping or the handling of the thiopental or its storage;

14 or that the solution that you're putting it into isn't the

15 solution that you think it is. It isn't the right mixing

16 solution, something is wrong; or you have done a

17 calculation error. You're trying to put in a different

18 amount than you think you are. Something is wrong with

19 that picture. I don't know which of those things it is.

20 Q So you mentioned that the thiopental might be

21 defective or might not have all the properties of

22 thiopental. If that were the case, would the powder's

23 anesthetic properties also be affected?

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24 A Yes. If it's not a thiopental, then that's not an 25 anesthetic anymore to provide anesthesia.
37
1 Q And if it was defective, it couldn't be dissolved, it 2 could also not have the expected anesthetic properties? 3 A Right. If it can't be dissolved, then it's lacking 4 the properties of thiopental and it may not properly 5 induce or provide anesthesia. 6 Q If that were to occur, if thiopental were to be 7 defective and the prisoner ended up inadequately 8 anesthetized, wouldn't that be obvious during the 9 execution? 10 A Are you saying that if the thiopental wasn't working 11 properly, it wasn't thiopental, and the execution proceeded 12 using that bad compound, are you saying would that be 13 obvious to the witnesses? 14 Q Yes. I'm asking if you think that would be observable 15 or obvious. 16 A No, I think things would look very similar. The 17 first -- the drug would go in, the thiopental, but it 18 wouldn't be thiopental so the prisoner, nothing would 19 happen to him. And then the second drug would go in, which 20 is the pancuronium, which in this dose would cause a rapid 21 onset of paralysis so the prisoner would very rapidly 22 develop a relaxed look on his face and his eyes would 23 calmly close and he would look like he was peacefully 24 asleep when in fact he would be wide awake and unable to 25 draw a breath and was suffocating. And when the potassium
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1 was administered, normally that would make him scream and

2 struggle, but he would be unable to do that because the

3 pancuronium would still be paralyzing him. So it would

4 look pretty much the same I think.

5 Q I'd like to draw your attention to another statement

6 from John Doe One's deposition. This is on page 45. In

7 response to the question, "Did you ever consider the

8 possibility that the thiopental might be defective," he

9 answered, quote, "No. It's a compound. It's like salt or

10 sugar. It's a chemical. There is nothing -- it

11 deteriorates after it's been mixed, but there is nothing in

12 pentothal that can out-date as long as it's in powder."

13

So do you agree with the statement that because

14 pentothal is stable in powder form it couldn't possibly be

15 defective?

16 A That statement is incorrect. There can be problems

17 with the manufacture of thiopental so that it doesn't

18 dissolve properly, so that it's not working properly. And

19 so he's just wrong there.

20 Q To your knowledge, does the manufacturer of pentothal

21 recognize that batches of thiopental could be defective?

22 A The package insert discusses what to do when the

23 thiopental doesn't properly go into solution and it

24 says one should not use that solution. It should be

25 discarded.

39

1 Q And looking at another statement in John Doe One's 2 deposition transcript, page 44, he states about the

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3 thiopental, "Some medications have an inert compound in or 4 a secondary compound to prevent improper dose." First, is 5 there an inert compound in thiopental that limits its 6 solubility in water? 7 A Thiopental is mixed with a powder which is sort of 8 inert in the sense it doesn't cause anesthesia or any 9 medical effects. It's mixed with a salt powder called 10 sodium carbonate, but that does not hinder its solubility 11 in any way. 12 Q On what are you basing this opinion? 13 A On the package insert. And I also, when I saw John 14 Doe discussing especially the amount of changes he made in 15 the thiopental mix, I telephoned the company that 16 manufactures it to find out if in fact any such changes had 17 been made that I wasn't aware of and I talked with a 18 specialist at the manufacturing company who informed me 19 there had not been any such changes or additives. 20 Q You mentioned speaking with the manufacturer. When 21 you have a question about a drug, is it normal practice to 22 call up the manufacturer and speak with a specialist? 23 A Sure. They put the number on the package insert just 24 like an instruction manual for a computer or something. 25 You can call them up and get answers to your questions.
40
1 Q And would you rely on those answers? 2 A Yes. 3 Q Do you think there should be any difference in the 4 solubility effect of the thiopental between the five-gram 5 vial and 500-milligram vial simply because of the different
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6 amounts provided in the vials? 7 A No. The manufacturer should be making the exact same 8 powder and the package insert applies for all the different 9 sizes of vials, so the preparation should be identical 10 regardless of how much is put in the bottle by the company. 11 Q And what is your conclusion with respect to John Doe 12 One's theory as to why the thiopental was not soluable? 13 A It doesn't make any sense. 14 Q Have you reached any conclusions with respect to Doe 15 One's decision, during the first execution in which he 16 encountered the problem, to go ahead with the execution 17 using the lower dose? 18 A That wasn't the right decision to make. 19 Q And why do you think that? 20 A Well, the concern is if the compound isn't behaving as 21 it's supposed to, there may be some problem with the 22 compound. If anything, one would want to increase the dose 23 to ensure that one was getting the right amount in. So 24 reducing it is trying to make a correction, but it's in the 25 wrong direction.
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1 Q Have you reached any conclusions with respect to John 2 Doe One's failure to investigate the potential problem with 3 thiopental after the first execution in which this 4 occurred? 5 A Yes. It's very troubling. 6 Q And do you have any conclusion with respect to John 7 Doe One's exercise of medical judgment in not simply 8 preparing additional syringes of thiopental?
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9 A That doesn't make any sense. He ought to have not

10 used the preparation at all. That's what he should have

11 done. That's what the manufacturer says. But given that

12 he decided to go ahead, which was the wrong decision, he

13 should have made up a lot more of it, not less of it.

14 Q And looking at his deposition testimony again, on page

15 29, he stated, quote, "I go to the execution chamber and

16 we're on a time frame. I have minutes to get the drugs

17 ready, minutes to ensure a perfect IV. There is no time to

18 call the drug company at midnight, the Director, or nursing

19 staff, to change. I am required to deal with what I'm

20 given and make it come out right and make it happen I guess

21 is the best way to say it."

22

In your experience, does time pressure exacerbate

23 the risks of improperly mixing thiopental, or any other

24 drug?

25 A Yes. When one is trying to undertake a complex

42

1 endeavor, if there's a lot of time pressure, then one is 2 much more likely to make errors. 3 Q Does time pressure also exacerbate the difficulty of 4 calculating and keeping track of how much thiopental has 5 already been mixed? 6 A Yes, especially if I'm dyslexic. 7 Q In your practice, would you accept time constraints 8 that you felt were overly restrictive in preparing a dose 9 of anesthesia? 10 A Under exigent circumstances, if there is an emergency 11 and somebody needs general anesthesia immediately, then

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12 everything would be very rushed and we would be working 13 under time pressure and we'd have to accept that because 14 the risks of delay would outweigh the benefits. 15 Q And in a nonemergency situation, would you accept time 16 constraints? 17 A No. In a nonemergency situation we arrive in time in 18 the morning to set things up and have things in an orderly 19 fashion to check and doublecheck everything to make sure 20 that we have our ducks in a row and that we have done 21 things properly. 22 Q From a medical perspective, is an execution an exigent 23 circumstance. 24 A No. My understanding is there is a many-hour window 25 in which it can legally occur, a many-day window. But
43
1 certainly I don't think it has to occur at a certain 2 precise time. And even if it did, the physician could show 3 up an hour or two hours earlier, whatever it took, to allow 4 his team to set things up in a more orderly and considered 5 fashion. 6 Q And given John Doe One's difficulties in mixing the 7 thiopental, do you have concerns about whether the 8 thiopental prepared was effective? 9 A Yeah, I don't know whether the -- it was effective or 10 not. 11 Q Is it possible to be certain that inmates given 12 insoluable thiopental were properly anesthetized during 13 their executions? 14 A Not from the information we have available. Some
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15 states perform toxicology. They measure the blood levels 16 of thiopental after an execution. And that might have 17 provided information in these executions, but I don't 18 believe Missouri did that. 19 Q And do you believe that John Doe One's use of 20 insoluable thiopental created considerable risk of pain in 21 these executions? 22 A If the thiopental didn't work properly, if he wasn't 23 given the amount of actual thiopentothal that he was 24 intending to, then the prisoner's execution would have been 25 excruciating.
44
1 Q I'd like to move on to another topic now. Have you 2 reviewed John Doe One's statement regarding the risks and 3 benefits of gaining venous access through the femoral vein? 4 A Yes, I have. 5 Q What are your conclusions with regard to those 6 statements? 7 A He's again made factual statements that are not 8 correct and then he's made errors of judgment. 9 Q Assuming that John Doe One testified that it's 10 impossible to pierce the femoral artery, do you agree with 11 that statement? 12 A No, that's completely false, and I know that because I 13 have accidentally pierced the femoral artery while 14 attempting to place a femoral venous access. 15 Q And mechanically how does one pierce the femoral 16 artery; how does that occur? 17 A Well, we don't know by looking at the outside of a
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18 person's body exactly where the femoral vein is. We use

19 landmarks and our anatomical knowledge and feeling the

20 pulse of the femoral artery, which is close to the femoral

21 vein, to make our best guess as to where the femoral vein

22 is. But there is variation between individuals and it's

23 always a mixture of art and science to try and understand

24 where the vein is.

25

So we go in with a needle, a hollow needle, and

45

1 we're aspirating with a syringe, drawing back and probing 2 until we get a return of blood. And more often than not 3 that initial blood is venous blood, and we can tell that 4 because it's a dark blue or purple color, but sometimes the 5 first blood that comes back is bright red, it's arterial 6 blood, and that means to get that we have had to have 7 punctured the femoral artery. 8 Q Is it possible to pierce the artery with a .22 gauge 9 needle? 10 A Absolutely. You can pierce it with any needle. 11 Q And does the Seldinger method of catheterization used 12 by John Doe One require the use of a needle? 13 A Yes. The Seldinger technique means that one pushes a 14 needle into the blood vessel and then passes a wire through 15 that needle and then uses that wire to insert the catheter. 16 So one has to pierce blood vessels in order to perform the 17 Seldinger technique. 18 Q So you disagree with John Doe One's statement that 19 piercing the artery is impossible using the Seldinger 20 method?

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21 A It's just completely wrong. It's a well-recognized 22 complication that the femoral artery can be punctured or 23 pierced or lacerated during femoral venous access. 24 Q Would you say that arterial puncture is a particularly 25 rare complication?
46

1 A No. I think it happens frequently.

2 Q What are the potential complications of an arterial

3 puncture?

4 A Depends on how big the hole is and for how long it

5 goes untreated. If the hole is large and nothing is done

6 about it, then one can lose a tremendous amount of blood

7 out of that hole.

8 Q Okay. So I'd like to show you a photo -- some photos

9 that's contained in what's already been marked and admitted

10 as Plaintiff's Exhibit 18. This is from the materials

11 produced from the Johnston execution. Have you seen this

12 photo before?

13 A I have, yes.

14 Q And have you reached any conclusions with respect to

15 it?

16 A This photo appears to show a triple lumen catheter

17 placed in the groin. It's probably in the femoral vein,

18 although I can't be certain where the tip of the catheter

19 is because I can't see that.

20 Q And I'd like to give you a hard copy of this so you

21 can mark where you see.

22 A Okay.

23

THE COURT: He can mark at his location.

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24

THE COURTROOM DEPUTY: Use your finger, and if

25 you want to clear it, just press this (indicating.)

47

1 Q (By Ms. Anders) So using that, could you mark for us

2 where you see the hematoma in this photograph?

3 A So -- can you hear me like that?

4

So hematoma is a mass of blood, a collection of

5 blood that occurs inside the body where blood has leaked

6 out of a blood vessel. And what you see here is the

7 catheter going into the groin and there's a ridge at the

8 end of the catheter, a raised ridge, that's got a blue

9 discoloration, and that's a hematoma.

10

And then it's important to understand that in the

11 thigh it can hold a lot of blood. Several -- it can hold a

12 liter of blood, which is the size of a liter bottle of

13 soda, can be concealed in the thigh. So when one is

14 looking at the hematoma in the groin or the thigh, it's

15 important to understand it may be the tip of the iceberg or

16 you may be seeing all of it.

17

But what it looks to me is like the swelling is

18 extended into the deeper tissue into a larger area causing

19 this bulge under here in the side of the thigh. And there

20 is also an area of blue discoloration in this zone here.

21 So it looks like there's -- beneath this here is a larger

22 area of blood collection and that this blue raised area is

23 the superficial manifestation of that.

24 Q Okay. I'd like the record to reflect that Dr. Heath

25 has marked an oval-shaped portion around the catheter

48

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1 entrance that's shown on the photo.

2

Is the fact that a hematoma occurred here

3 indicative of medical negligence or error?

4 A Not at all. Hematoma is a recognized complication of

5 femoral venous access because as I said you can't know

6 exactly where the artery and vein are. And it's happened

7 to me. A hematoma can occur in the best of hands, and does

8 occur in the best of hands. It happens to everybody, to

9 all patients. Excuse me, it happens to many patients. It

10 happens to all physicians who perform these things

11 frequently.

12 Q I'd just like to refer you to another part of John Doe

13 One's deposition testimony. When asked about the hematoma

14 in the photo he stated, quote, "What they are seeing is the

15 site where I injected my local anesthesia. It causes a

16 little blue mark." Page 102.

17

In your experience in inserting a femoral line

18 for the induction of anesthesia, local anesthesia, has it

19 ever caused a blue mark?

20 A No, local anesthesia is a clear solution and it can't

21 cause blue discoloration. I suppose when injecting the

22 local anesthesia he could have ruptured a blood vessel and

23 caused a hematoma, but either way, whatever it was that

24 caused this, this is blue and it's from blood collecting

25 there. It's not from local anesthetic. That's just not

49

1 possible. 2 Q Have you ever heard of a blue mark from local

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3 anesthesia occurring, in your discussions with colleagues?

4 A No, unless they injected -- they caused a hematoma in

5 the act of injecting it. But the local anesthetic itself

6 doesn't cause a blue discoloration.

7 Q So does Doe One's explanation change your conclusion

8 that there is a hematoma here?

9 A No. The photograph shows a hematoma.

10 Q Now I'd like to show you another photograph. This is

11 contained in Plaintiff's Exhibit 21, which has been marked

12 and admitted. This is from the Smith execution.

13

THE COURT: What exhibit? You say this is a

14 different exhibit?

15

MS. ANDERS: Yes. This is from the Smith

16 execution contained in Plaintiff's Exhibit 21.

17 Q (By Ms. Anders) So this is from another execution,

18 the Smith execution. Do you see a blue mark on this photo?

19 A No, I don't.

20 Q And looking at this photo, is there any indication

21 that any complication arose during this femoral procedure?

22 A No, there isn't.

23 Q But there is such evidence in the photo from the

24 Johnston execution that we just saw?

25 A Yes. The photographs are very different. It clearly

50

1 shows a hematoma is present. 2 Q Does it raise concerns in your mind that John Doe One 3 isn't admitting that the hematoma exists? 4 A Yes. It's right there in the photograph. It's a 5 recognized complication that can occur. I don't understand

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6 why he doesn't see it there. 7 Q Could hematoma such as the one that occurred during 8 the Johnston execution be painful? 9 A Yes. 10 Q How does a hematoma cause pain? 11 A Well, when the hematoma forms in the groin it distends 12 and stretches and distorts the tissue and the groin is an 13 area that has a lot of nerve or sensory nerve innervation, 14 it's a sensitive area, so when that tissue is distorted and 15 stretched that causes pain. 16 Q Can you tell definitively whether the hematoma in the 17 Johnston photo was painful? 18 A The only way you know for sure is to ask him whether 19 it hurt. I don't know for sure. It looks painful. 20 Q How would someone behave if they were in pain? 21 A A restrained -- a nonrestrained person would wriggle 22 around. Probably put their hand on the area that was 23 hurting. He would probably try adjusting his position, 24 flex his thigh, his groin, trying to find a comfortable 25 position, those kind of movements.
51

1

He's restrained so I'm not sure how much movement

2 you'd be able to see.

3 Q And what else could you rely on in ascertaining

4 whether Johnston felt pain from the hematoma?

5 A You can't rely for sure on anything without asking

6 him, but you can see how other people described his

7 behavior.

8 Q So would you rely on an observer's account in

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9 determining whether or ascertaining whether someone might

10 have been in pain from the hematoma?

11 A Yes. I think that's one of the reasons the state

12 wants witnesses to be there to be able to report whether or

13 not pain occurred, whether or not it was humane.

14 Q I'd like to quote to you a newspaper article about the

15 Johnston execution.

16

MR. HAWKE: Objection, Your Honor. This has not

17 been part of discovery and appears to be hearsay.

18

MS. ANDERS: We're not admitting it in evidence.

19 It's just something that he's relied on in testifying,

20 whether it's consistent with --

21

THE COURT: I'm going to sustain the objection.

22 Q (By Ms. Anders) So do you agree with John Doe One's

23 statement that there are no risks to the inmate from

24 femoral catheterization?

25 A That statement is false.

52

1 Q And do you think that John Doe One fails to

2 acknowledge some of the common complications of femoral

3 catheterization?

4 A Yes, he does.

5 Q In your opinion, is it dangerous for a physician to

6 perform a procedure and not to acknowledge the risks that

7 could flow from the procedure?

8 A Yes. Before we're allowed to do them on our own

9 without supervision we have to be able to recite what the

10 complications are, what the risks are that can occur.

11

MS. ANDERS: I'd like to ask the witness about

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12 something right now that was redacted from the Doe One

13 transcript.

14

(Counsel approached the bench and conferred

15 off the record.)

16

MS. ANDERS: I'm just going to ask a question or

17 two about something that's been redacted from the John Doe

18 One transcript.

19 Q (By Ms. Anders) Dr. Heath, in performing a femoral

20 catheterization, is it important for the doctor doing it to

21 be proficient in the procedure?

22 A Yes, it is.

23 Q Why is that?

24 A Any femoral line is a complex procedure and it's being

25 done in a critical area of the body where there are large

53

1 blood vessels and a large nerve and if one is not 2 proficient in this, then severe complications are more 3 likely to ensue. 4 Q John Doe One stated in interrogatory responses that he 5 has not regularly inserted femoral lines in the past few 6 years. He testified in his deposition that he is not in 7 active practice. Do those facts raise concerns in your 8 mind about John Doe One's proficiency in performing femoral 9 catheterizations? 10 A Yes. Part of what proficiency is, one element is a 11 thing we call currency. It's like pilots flying planes. 12 One has to be doing it with a certain frequency to be 13 considered suitable to continue doing it. And if he hasn't 14 been performing this for a number of years, then he lacks

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15 the currency that would be necessary. 16 Q Is it your practice when performing femoral 17 catheterization to sedate a patient before inserting the 18 femoral line? 19 A Yes. Some of my patients are already under general 20 anesthesia when I'm placing a central line or femoral line, 21 but if somebody were not under general anesthesia, then I 22 would start a peripheral IV to give them analgesics or 23 painkillers and sedation. 24 Q Why would you do that? 25 A Because it's a very nasty procedure to endure without
54
1 any sedation or pain killer. 2 Q And to your knowledge, does John Doe One sedate 3 prisoners before performing femoral catheterization? 4 A He does not, no. 5 Q In your testimony are you distinguishing between the 6 local anesthetic and intravenous sedation? 7 A Right. Intravenous sedation obviously goes everywhere 8 in the body including the brain and intravenous analgesics 9 or painkillers also travel throughout the body, and so 10 that's different from local anesthesia which is just given 11 directly in the groin area and does not affect one's 12 ability to experience pain or level of consciousness. 13 Q So do you believe that the failure to sedate an inmate 14 before performing catheterization is indicative of 15 questionable medical judgment on the part of John Doe One? 16 A Yes. It's standard, whenever possible when one can 17 obtain a peripheral IV, which is the case in almost all
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18 patients, that one first puts in a peripheral IV and uses 19 that to give sedation and analgesia and then you put in the 20 femoral venous line. 21 Q I'd like to draw your attention to some more of the 22 deposition transcript. On page 104 John Doe One states he 23 was unable to place a femoral line and therefore placed a 24 subclavian line. Are there different risks inherent in 25 placing a subclavian line?
55

1 A There certainly are, yes.

2 Q And could you describe them?

3 A Well, the subclavian line goes in right by the

4 collarbone. It's close to the heart and close to the

5 lungs. And it's a very well-recognized complication that

6 the needle can open up the -- can damage the lung and cause

7 air to enter the spaces that surround the lung and cause a

8 compression of the lung which is a thing we call

9 pneumothorax or tension pneumothorax, and that's an

10 emergency situation that's extremely agonizing. One is

11 basically suffocating to death and it needs emergency

12 intervention.

13

Another problem that can occur when using a

14 Seldinger technique, the subclavian technique, is that the

15 wire tends to enter the heart and can cause arrhythmia, can

16 cause the heart to beat improperly, or even stop the heart,

17 and obviously that's another emergency situation that needs

18 to be corrected immediately.

19 Q I'd like to draw your attention to a statement from

20 the deposition transcript of John Doe One in discussing

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21 subclavian line access. He says, quote, "Yes, but it 22 requires significant modification of the facility. In 23 other words, the bed must have the capability of being 24 tilted with the feet up so these veins would dilate 25 sufficiently to guarantee safety. Plus it would be
56

1 prudent to have chest tube capability available. I have

2 rudimentary chest tube capability on this tray as I have

3 selected. But if you said I would always do subclavian, I

4 would have chest tube available on every occasion."

5

Is it your understanding from that testimony that

6 John Doe One does not have the equipment necessary to treat

7 the complications of subclavian access in the execution?

8 A Yes, that's right. He's saying that -- he's correctly

9 stating that when one embarks on this procedure one needs

10 to have available certain equipment and supplies including

11 the equipment to put in a chest tube, which is a large tube

12 about the size of one's finger that goes between the ribs

13 into the space outside the lungs.

14 Q What complication would that chest tubing be necessary

15 to treat?

16 A It would be necessary to treat what's called a tension

17 pneumothorax which is where air is collecting outside the

18 lung and inside the chest and collapsing or compressing the

19 lung.

20 Q John Doe One also said in what I just read that there

21 is rudimentary chest tube capability in the catheter tray

22 that he uses. Do you know what he means by that?

23 A There is no chest tube capability. There is a small

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24 catheter like the catheter that's used for putting in 25 peripheral IVs. And he's quite right, that can be
57
1 introduced into the chest wall to -- as a temporary 2 measure, as an initial measure, to help reduce the 3 pneumothorax or stop it from getting worse, but that would 4 be vastly below the standard of care to rely solely upon 5 that very small catheter when in fact what is needed is a 6 much larger tube and all the equipment to insert that tube 7 and the presence of suction so that the chest can be 8 evacuated. 9 Q In your practice, would you perform a procedure even 10 once knowing you did not have the necessary equipment to 11 treat that complication? 12 A Again, under an exigent circumstance, if somebody 13 needed a subclavian line on the roadside or whatever and 14 they are going to die if you didn't have it, then you would 15 try to put it in and hope you didn't get any of these 16 terrible complications. But in an elective procedure where 17 it's scheduled ahead of time and one has time to obtain and 18 deploy the necessary emergency equipment, then one of 19 course needs to do that. 20 Q Okay. I'd like to discuss with you potassium chloride 21 and whether it hurts when injected into the vein. Could 22 you just explain for me what makes potassium hurt in the 23 veins? 24 A Yes. Potassium is a salt solution that is used by 25 nerve membranes and the membranes in the heart to regulate
58
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1 their electrical activity, to regulate the voltage across 2 the membrane. And when potassium is put on a nerve ending 3 or in the heart it interferes with how the nerve maintains 4 its voltage across the membrane and it makes the nerve fire 5 signals so the nerve thinks it's being activated in the 6 same way it would be if the tissue were being cut or heated 7 or traumatized. 8 Q And looking at John Doe One's deposition testimony, on 9 page 57 he states, in discussing potassium, "The only way 10 it hurts is by causing spasm in a vessel in your hand or in 11 your arm or in your leg." Do you agree with the statement 12 that potassium does not hurt if the vein does not spasm? 13 A It's not the spasm that hurts. It's the activation of 14 the nerves in the walls of the vessel. Anybody could 15 potentially inject it into a vein or just in the muscle or 16 under the skin and it would be extremely painful. 17 Q So potassium would be painful even in veins that do 18 not spasm? 19 A It would be painful anywhere that has nerves, sensory 20 nerves. 21 Q And looking at the directly following testimony on 22 page 58 of the John Doe deposition transcipt, he states, 23 "Plus the drug is diluted instantly. The amount of blood 24 flowing through the interior vena cava amounts to a quart 25 every two seconds, so it's instantly dissolved."
59

1

Could potassium not hurt in a femoral vein

2 because it is diluted by blood volume?

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3 A I think he's very wrong about that.

4 Q And why is that?

5 A I did some thumbnail calculations and discussed it

6 with colleagues. We estimated that -- we know that the

7 normal flow of blood in the body is about five liters every

8 minute. And we estimated that about one liter a minute is

9 coming from the lower part of the body and flowing past

10 where the catheter tip would be in the configuration used

11 in the Missouri executions. So you have one liter flowing

12 through that vein every minute.

13

I think he describes the delivery of the

14 potassium as occurring over about 30 seconds at one point.

15 So in 30 seconds about half a liter or 500 mls would flow

16 past the end of the catheter, and during that time they're

17 injecting potassium. I'm not sure if they're injecting 120

18 milliequivalents or 240 milliequivalents because of the

19 confusion about the dosing, but let's take the lower dose

20 just to give him the benefit of the doubt. If 120

21 milliequivalents of potassium is injected into half a

22 liter, that will result in a concentration of 240

23 milliequivalents per liter, plus the normal five

24 milliequivalents per liter that's in the blood already so

25 it will result in the concentration of potassium that's

60

1 20-fold higher -- is that right, I'm sorry. No, 40-fold 2 higher than what's normally present in the blood, and more 3 than 20 fold, and that would be far higher than necessary 4 to maximally activate the nerve fibers. 5 Q And is the concentration of potassium high enough to

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6 stop the heart? 7 A Yes. And it stops the heart in the same way that it 8 activates nerve fibers. It's basically activating the 9 nerve fibers -- or the fibers in the heart that are like 10 the nerve fibers that carry electrical statements to the 11 heart. So if you are giving enough to stop the heart, 12 you're also giving enough to cause pain in the veins. And 13 in fact we know from reports where accidentally in a 14 therapeutic setting a high concentration of potassium was 15 given to a patient, and it was a terrible mistake 16 obviously, but before stopping the heart it causes extreme 17 pain in the veins. 18 Q John Doe One states in his deposition testimony that 19 it's not necessary to do any calculations to be sure that 20 the potassium would be sufficiently diluted so that it 21 doesn't hurt. That's on page 61. Do you agree with that? 22 A You can't know it's unnecessary to do calculations 23 until you do them, so if you run through the numbers like I 24 did, and again I'm making some assumptions, but I think 25 they're all reasonable ones, then you end up with a
61
1 concentration that basically almost no matter what 2 reasonable assumption one makes, it's a very high 3 concentration and it would certainly activate nerve fibers. 4 Q I'd next like to draw your attention to the deposition 5 testimony of John Doe One on page 61. He states, "We use 6 the femoral vein to insert a catheter that I think is about 7 16 inches long, so actually from the femoral vein if you 8 measure up to your xiphoid which would mean it's about two
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9 inches from the heart, so the catheter is almost in the

10 heart when -- so the drug is directly injected below the

11 heart as it enters."

12

In your experience, do catheterization trays

13 always come with such a long catheter?

14 A This -- the triple lumen catheter is what we're

15 talking about here are not -- did you say 18 inches long?

16 Q 16 inches.

17 A They are not 16 inches long and they don't go anywhere

18 near the heart.

19

MS. ANDERS: I'd like the record to reflect that

20 I'm showing opposing counsel what's been marked as

21 Plaintiff's Exhibit 28.

22 Q (By Ms. Anders) Do you recognize this photo,

23 Dr. Heath?

24 A Yes. It's the package or kit that the triple lumen

25 catheter is supplied in. It's a sterile and sealed kit.

62

1 Q So is this an accurate representation of the catheter

2 tray that you observed during the tour of the execution

3 facility?

4 A Yes, it is.

5

MS. ANDERS: I'd like to offer Exhibit No. 28

6 into evidence, Your Honor.

7

MR. HAWKE: No objection.

8

THE COURT: Be received.

9 Q (By Ms. Anders) Could you read the length of the

10 catheter that is included in the catheter tray?

11 A Yes. It's in the first line here. It says that the

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12 catheter is 5 and 7/8th inches long, almost 6 inches long. 13 Q Thank you. And even if the catheter did go all the 14 way almost to the heart, could the potassium still hurt? 15 A Yes. The heart has many sensory fibers. We all know 16 that because a heart attack is an extremely painful thing. 17 And so in stopping the heart it's also activating those 18 nerve fibers. Also, to be pumped through the actual muscle 19 of the heart, the potassium has to travel through the right 20 side of the heart, which is the side of the heart that 21 pumps venous blood into the lungs, has to travel through 22 the right side of the heart and has to be pumped through 23 the lungs which themselves have a lot of sensory nerve 24 endings, and then flow back from the lungs after it has 25 picked up oxygen and be carried to the left side of the
63

1 heart, and from there it's pumped into the aorta and into

2 the actual muscle of the heart.

3

It's quite possible that in order to get to the

4 actual heart muscle it has to be pumped all the way through

5 the lungs regardless of where it's being introduced. But

6 in this setting, it's being introduced no way near the

7 heart. It's being introduced down in the pelvis six inches

8 from the groin where the catheter is inserted.

9 Q So more broadly, are John Doe One's statements with

10 respect to the possibility of pain arising from the

11 potassium injection, in your view, failure to acknowledge

12 the risks of the execution?

13 A Yes. He's not acknowledging that there are numerous

14 things that can go wrong and that those things can cause

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15 problems with drug delivery and cause problems with the 16 humaneness of the procedure. 17 Q In John Doe One's answers to the plaintiff's first 18 interrogatories, this is No. 33, John Doe One states that 19 pancuronium, quote, will mitigate likely seizure activity 20 and involuntary movements and thus result in a more 21 peaceful and humane death. Do you agree with that 22 statement? 23 A He's partly correct. It will stop involuntary 24 movements. It stops all movement, all the muscles in the 25 body except the heart and the muscles in the blood vessels.
64
1 But it will stop the movement of all the muscles in the 2 arms and the legs which are normally moving around in a 3 seizure. But he's wrong, it won't stop the seizure. The 4 seizure is actually a thing that happens in the brain. 5 It's abnormal electrical activity in the brain, and when we 6 see somebody jerking around in a seizure that's what we 7 call the motor manifestations, the muscle manifestations of 8 what's occurring in the brain, and pancuronium wouldn't 9 afect that. It doesn't really enter the brain. And so 10 while it will stop physical movement, it wouldn't stop the 11 seizure from occurring. It certainly wouldn't make it any 12 more humane. 13 Q Does pancuronium have any anesthetic or sedative 14 effect? 15 A None whatsoever. The only effect it has is to stop 16 one's ability to move muscles that we're normally able to 17 control. It doesn't affect our thinking or ability to feel
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18 pain, our consciousness or awareness, and it doesn't affect 19 whether a seizure occurs or not. 20 Q So have John Doe One's statements in this case given 21 you concerns about whether he's competent to ensure that 22 executions are performed humanely? 23 A Well, given how these executions are being performed 24 in a way that requires general anesthesia to first be 25 successfully administered and monitored, no, he's not
65
1 competent to do that. 2 Q What are you basing that on? 3 A On the numerous factual errors, some of which you 4 raised here, but he has things just completely backwards. 5 It's like he's driving on the wrong side of the road and 6 doesn't realize it. That's very concerning. 7 Q Do these factual errors raise concerns in your mind 8 about John Doe One's medical judgment? 9 A Well, first of all, you can't have good medical 10 judgment -- if your facts are wrong, then your judgment 11 can't be good. But even if he had the right facts, some of 12 the judgment calls that he's made are very concerning. 13 Q Do you believe that entrusting John Doe One with 14 responsibility for inducing general anesthesia, including 15 the preparation of thiopental, creates a significant risk 16 that the inmate will be improperly anesthetized? 17 A It does, yes. He should never be entrusted with 18 general anesthesia under any circumstances unless he's 19 going to undergo a considerable amount of training. 20 Q So is there significant risk, therefore, that inmates
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21 will suffer excruciating pain? 22 A Yes, there is. 23 Q And do you believe that entrusting John Doe One with 24 responsibility for the femoral catheterization procedure 25 also creates a significant risk that inmates will suffer
66

1 pain from the procedure?

2 A Yes.

3 Q Okay. Now I'd like to talk with you a little bit

4 about the drug delivery system that's maintained in

5 Missouri at Bonne Terre.

6

THE REPORTER: Ms. Anders, I need to change

7 paper.

8

THE COURT: Why don't we take a recess, about ten

9 minutes. Give you a chance to stand and stretch a little.

10

(Recess)

11

MS. ANDERS: Your Honor, just very quickly I'd

12 like to ask if it's okay with the court if the expert

13 witnesses sit in on the testimony. I think the parties

14 have agreed that would be okay, and I'm very sorry. I

15 think we misunderstood.

16

THE COURT: If there is an agreement there, I

17 don't have a problem.

18

MR. HAWKE: There is. It's no problem.

19

MR. PRITCHETT: Just so it's clear, the agreement

20 included Mr. Moore could come in as well.

21

THE COURT: I kind of figured.

22 Q (By Ms. Anders) I'd like to talk with you about your

23 inspection of the execution facility at Bonne Terre and the

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24 drug delivery system used by the Missouri execution team. 25 I believe you testified before that as part of your
67

1 participation in the execution system you observed the

2 equipment as well as the facility itself; is that correct?

3 A That's correct.

4 Q And did you draw any conclusions with respect to

5 whether the drug delivery system allows the execution team

6 to ensure a humane execution?

7

MR. HAWKE: Objection, Your Honor. This line of

8 questioning is beyond the scope of the Court of Appeals'

9 remand. The issues before the court concern the efficacy

10 and humaneness of the three-drug protocol as well as the

11 use of the femoral access. It does not involve drug

12 delivery systems and things like that.

13

MS. ANDERS: Dr. Heath testified before that

14 components of the execution procedure include the manner in

15 which the drugs are delivered into the inmate, and a large

16 part of the issue here is whether the anesthetic can be

17 successfully delivered into the inmate's circulation. So

18 because of that, the drug delivery system is very, very

19 relevant.

20

THE COURT: I agree. Objection is overruled.

21 Q (By Ms. Anders) Dr. Heath, did you draw any

22 conclusions with respect to whether the drug delivery

23 system allows the execution team to ensure an humane

24 execution?

25 A I did, yes.

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1 Q And what are your conclusions? 2 A There are several problems with the layout in the 3 execution chamber and the drug preparation room or the work 4 room that's right next to the execution chamber. The drugs 5 are delivered from one room through a wall into the room 6 where the prisoner is and the IV tubing disappears into a 7 hole in a desk and goes down under that desk and out 8 through the wall and then runs along the bed underneath the 9 sheet so one cannot survey as is necessary the tubing 10 through which the drugs are supposed to flow. 11 Q So I believe it's implicit in your answer, but does 12 the execution team administer the drugs from a different 13 room? 14 A Yes, they're standing in one room, and in a completely 15 separate isolated room is the prisoner who is being 16 executed. 17 Q When, if ever, do anesthesiologists induce general 18 anesthesia from a remote location? 19 A One would never induce general anesthesia from a 20 remote location. That would be completely, deeply beneath 21 any reasonable standard of care. 22 Q Does remote induction of general anesthesia create a 23 risk of improper anesthetization? 24 A Yes, it does. One is unable, if one is in a different 25 room, to assess whether one has achieved the desired or
69
1 necessary anesthetic depth. 2 Q Why is it -- what does monitoring anesthetic depth
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3 entail?

4 A It's a very complicated thing. It's essential for an

5 anesthesiologist to do. It involves integrating an array

6 of different information from monitors, from different

7 monitors, from what the patient is doing, and being able to

8 touch the patient and perform various tests.

9 Q And why is it necessary to monitor anesthetic depth?

10 A Because anesthetic depth is not something that one can

11 predict based on what one has done, so we give -- what we

12 do is we do what's called titrating for effect. It's

13 like somebody who is trying to get a certain level of

14 intoxication from alcohol. They drink a certain amount.

15 They see what effect they get and then they drink however

16 much more they need to get to where they want to be.

17

Anesthesiologists are doing the same thing.

18 We're giving drugs and we don't know exactly what they're

19 going to do to any individual when you give the amount that

20 we need to give to get an effect. And if we don't have

21 that effect, then we continuously adjust that so we know

22 how much more or less we need to give and we need to have

23 some way of knowing how deep their level of anesthesia is.

24 Q Is it necessary to monitor anesthetic depth even when

25 a large dose of thiopental is being given?

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1 A Yes, it's always necessary to monitor anesthetic depth 2 when you're using intravenous anesthetic drugs. With the 3 gases that people inhale for anesthesia, we can actually 4 measure how much gas they're breathing in and breathing out 5 and that tells us in real time how much drug is present in

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6 their body. But with intravenous anesthetics we don't have 7 any, unfortunately, have any tests or devices or machines 8 that tell us the concentration of drug in the body, so we 9 have to do the next best thing which is rely on different 10 monitors and other tests and to integrate that information 11 in a continuous real time basis to come up with our best 12 estimate of what the anesthetic depth is. 13 Q And so is there any other way besides monitoring 14 anesthetic depth to determine that the entire intended dose 15 of anesthetic has been delivered and has the desired 16 effect? 17 A No. We think we're getting a certain amount of the 18 drug, but we don't know that for sure unless -- we don't 19 know that we have given the right amount, that it's 20 successfully entered the circulation until we test or 21 assess what the result was, and that's why it's always 22 important to test anesthetic depth before initiating any 23 painful or uncomfortable procedure. 24 Q And so is it necessary to monitor anesthetic depth 25 even if there is no need to bring the inmate out of the
71
1 anesthesia? 2 A It's important for you to know that for a humane 3 execution to take place. If you care about that, then you 4 have to in some way assess and show that a surgical plane 5 of anesthesia, which is a deep enough level of anesthesia 6 that you could do surgery on a person and it wouldn't cause 7 them pain or suffering. So if you want to know that it's 8 humane, you need to show that there is a surgical plane of
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9 anesthesia. 10 Q Based on your observation during your inspection of 11 the execution facility, does the execution team's vantage 12 point in another room allow them to monitor anesthetic 13 depth? 14 A No. They only have one -- they have two monitors, but 15 only one useful monitor for assessing anesthetic depth and 16 that's the monitor giving them the heart rate information 17 and that's a monitor that can be used, when integrated with 18 many other monitors, other medical signs, to give 19 indication of anesthetic depth. But they can't, as we need 20 to be, be physically in contact with the patient, standing 21 right by their head and able to test various reflexes and 22 do tests along those lines. And they don't have other 23 monitors like blood pressure and other things that we use. 24 So from where they are, they cannot make any meaningful 25 determination of anesthetic depth.
72
1 Q Can a heart rate monitor alone give you a meaningful 2 reading or meaningful sense of anesthetic depth? 3 A Not by itself. It's one of many different monitors 4 and clinical signs that we continuously integrate. We 5 continuously absorb that stream of information from many 6 sources and use it to synthesize our assessment of what the 7 anesthetic depth is. 8 Q And how does the execution team visually observe the 9 inmate? 10 A They're standing in a different room. There is a 11 window between the execution room and the -- I'm sorry,
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12 there is a window between the room where the executioners 13 are standing and where the prisoner is lying on the bed. 14 So they're looking down with a view from the head of the 15 prisoner down towards his feet. 16 Q While at the inspection, did you perform a simulation 17 to determine what view the execution team had through the 18 window into the execution chamber? 19 A Yes. We had one of the people who was present lay 20 down on the bed that's used at the executions and then the 21 door to the execution chamber was closed and everybody went 22 into the work room where they inject the drugs from and the 23 camera person stood at each of the locations where each of 24 the executioners were standing to record a video version of 25 the view that they would have during the execution.
73

1 Q And could you describe the view through the window?

2 A Well, it's difficult to describe. Maybe a picture

3 would help. But you're looking down from the head of the

4 prisoner towards his feet and all you can see is the top of

5 his head or a very shallow view of his face. And then

6 you're looking through a venetian blind, a screen that

7 partly obstructs the view. And then the window is also --

8 it's a one-way mirror, a partly silvered mirror, so -- a

9 window, so I think it's kind of like looking through

10 sunglasses. It obstructs some of the flow of the light.

11 Q I'd like the record to show I'm showing opposing

12 counsel what has been marked as Plaintiff's Exhibit 29.

13

Do you recognize this scene, Dr. Heath?

14 A Yes, I do.

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15 Q And what is it? 16 A This is a picture taken by the video filmer of one of 17 the people who was present at the inspection and he's lying 18 on the bed that's used for the executions and he's covered 19 with a sheet, which is how the prison personnel describe 20 the execution being done. And to his -- to the right of 21 his head you can see a window and I believe that's where 22 some of the witnesses sit. I'm not sure if it's the 23 official witnesses or family members. And then to the left 24 of his head, which is sort of above his head, is a window 25 that leads into a different room where the execution
74

1 personnel and the physician and other individuals are

2 present.

3

You can see under that window there's a hole in

4 the wall and IV tubing coming out from that hole and under

5 the sheet, and then it runs into the groin of the condemned

6 prisoner. So that IV tubing was set up to simulate -- set

7 up by the prison personnel to show how things are set up

8 during an execution.

9 Q So based on your observation during the execution

10 chamber tour, this is an accurate rendition of the view on

11 the gurney?

12 A This is what we saw on the tour, and the prison

13 personnel indicated this is how things generally look

14 during an actual execution.

15 Q Thank you.

16

MS. ANDERS: I'd like to admit Exhibit 29 into

17 evidence.

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18

MR. HAWKE: No objection, Your Honor.

19

THE COURT: Received.

20

Do you plan on offering the videotape at some

21 point in time?

22

MS. ANDERS: Yes, I believe --

23

THE COURT: Because if this is contained on that,

24 we can save some time. It will be part of the record.

25 It's of no real value for me to see this because I have

75

1 seen it.

2

MS. ANDERS: We don't have the videotape here.

3

MR. HELLMAN: But we can offer it, yes, Your

4 Honor.

5

MS. ANDERS: We would like to offer the videotape

6 of the tour into evidence.

7

THE COURT: We'll make it part of the record, if

8 there are no objections.

9

MR. HAWKE: No objections.

10

MS. ANDERS: Thank you, Your Honor.

11 Q (By Ms. Anders) So from this perspective --

12

THE COURT: What would the number of that be?

13

MS. ANDERS: I'm sorry. The number of the

14 videotape will be 47.

15

THE COURT: Show it received.

16 Q (By Ms. Anders) So, Dr. Heath, from this

17 perspective, is it possible to see the inmate's face?

18 A Yes.

19 Q And is it possible to see the IV tubing?

20 A I can see a little bit of the IV tubing, yes.

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21 Q And I show you another photo that is part of 22 Plaintiff's Exhibit 47. Have you seen this scene before? 23 A Yes, I have. 24 Q And could you describe what this photo shows? 25 A This is a simulation again of the prisoner lying on
76
1 the bed or the gurney. Now, this is in a different room. 2 This is in the work room or the room where the executioner 3 stands, and it's looking down from where the IV tubing, the 4 end of the tubing is and where the drugs are injected from, 5 looking down at the top of the person's head. It would be 6 the prisoner's head. 7 Q And do you believe that you'd be able to ascertain 8 whether general anesthesia has been successfully induced 9 using this view? 10 A No, you can't make any such assessment. 11 Q Why not? 12 A You're in a different room. You can't see the 13 person's face well. The top of the head doesn't really 14 show, or doesn't show any indications of whether somebody 15 is anesthetized or not. The face can reveal information 16 about that. You can't see any part of his body, and again, 17 there are no -- there aren't the monitors that we normally 18 deploy to help us assess anesthetic depth. And you 19 certainly can't touch the person, which is one of the 20 important things or methods we have available to us to 21 assess anesthetic depth. 22 Q I'd like to draw your attention to a statement from 23 the John Doe One deposition transcript, page 41, in
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24 response to the question, "Did you monitor Mr. Gray's 25 anesthetic depth during execution?" He stated, quote, "The
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1 only thing that can be monitored is facial expression and

2 you can judge when the effect of the drug is accomplished,

3 and that can be seen from across the room through a

4 window."

5

Do you agree with that statement based on your

6 observations of your view into the execution chamber?

7 A Well, first of all, you don't have a good view of the

8 face. You certainly don't have the kind of view that you

9 would need to monitor facial expression if you're using it

10 to monitor anesthetic depth. But much more importantly,

11 he's totally wrong about being able to use facial

12 expression in this context to monitor anesthetic depth. If

13 the thiopental didn't work properly, when the pancuronium

14 goes in, it will cause a relaxed facial expression, similar

15 or identical to what expression we get with thiopental. So

16 from being -- even if one were standing right next to the

17 person, the rapid onset of pancuronium and the rapid onset

18 of thiopental would be very similar.

19 Q And based on your observation of the IV tubing, is it

20 possible to monitor the flow of drugs through the IV?

21 A No. You only see a very small part of the IV, maybe

22 and few inches where it comes out of the hole in the desk,

23 and you can't see any of the rest of the extent of the IV.

24 Most importantly, you can't see the connection where the IV

25 plugs into the triple lumen catheter. That's underneath

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1 the blanket or the sheet. 2 Q So if the IV tubing can't be seen, are there potential 3 problems that could arise with the IV tubing that cannot be 4 detected? 5 A Yes. It can disconnect or partly disconnect and leak. 6 It can have a hole in it. It can kink. There are numerous 7 problems. And that's why it's our standard of care when 8 we're inducing general anesthesia in a patient whenever 9 possible to have the full extent of the IV tubing 10 completely visible and laid out in a neat fashion so that 11 we can clearly see that the conduit through which the drugs 12 will flow is working properly. 13 Q And based on your observation of the IV tubing, do you 14 know whether the execution team uses an IV bag or drip? 15 A They do not use an IV bag or drip. They just inject 16 straight into the end of the IV tubing. 17 Q Is it standard medical practice to use an IV bag and 18 drip of saline or other solution when inducing general 19 anesthesia? 20 A Yes. What we normally do is connect a bag with a drip 21 chamber so we can see the rate of fluid as it enters the IV 22 and when we introduce the drugs into the IV line, we can 23 see that the fluid is flowing properly. 24 Q So to your knowledge, does any other state not use an 25 IV bag in its execution procedure?
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1 A Everywhere else that I'm aware of, unless they have 2 made a recent change that I'm not aware of, does use IV
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3 bags.

4 Q When you are injecting drugs through IV tubing, are

5 there any tactile clues that can help you ascertain whether

6 the drugs are flowing properly?

7 A Yes. There is a thing that we call back pressure.

8 When you are pushing on the plunger of the syringe, there

9 is a certain amount of resistance to pushing that plunger

10 in, and it depends on many factors. If there's just air in

11 the syringe, you can push that plunger very easily. If

12 there is fluid in the syringe, then you have to push

13 harder. And it depends on the viscosity of the fluid. And

14 if it's connected to an IV tubing into a catheter, then one

15 needs to push even harder.

16

And we learn from experience what the normal feel

17 of that pressure is for a given size syringe, and if we're

18 not feeling that normal feeling that's one of the

19 indications that we have that something is going wrong with

20 the injection. It's hard to describe in words. Sort of

21 like riding a bicycle. It's something you need to get a

22 feel for, how a plunger should normally feel.

23 Q So how does a person acquire that feel for the back

24 pressure?

25 A The way you learn that something is going wrong is

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1 if you have -- over time from learning how to inject drugs 2 and how to induce anesthesia, one has bedside experience in 3 giving the drugs and seeing what happens. And sometimes we 4 do have an infiltration or a problem or a leakage, and, for 5 example, if you're injecting and there's a leakage, things

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6 won't feel right and you'll see a leakage and you connect 7 that in your brain and you know in the future when things 8 don't feel right that maybe that's what the problem is. 9 Q Do the persons who inject the drugs have any medical 10 training? 11 A Apparently not. 12 Q And do they perform rehearsals or train in pushing the 13 syringes, based on your review of the documents? 14 A No, they don't. There are some states where there 15 is rigorous training protocols where the guards or the 16 injection personnel are timed injecting the syringe at a 17 certain rate and knowing what the feel -- what the back 18 pressure feels like. But there is no indication that 19 that's been done here. 20 Q And are rehearsals important to the execution 21 procedure? 22 A Yes, it is very important. One needs to have a 23 protocol and one needs to rehearse that protocol because 24 several people are involved in effecting the execution. 25 It's a series of steps that have to be taken in the right
81
1 order and the right way. Everybody has to know what their 2 responsibilities are and where to stand. And the rehearsal 3 process allows a quality assurance. It allows one to work 4 out the kinks and the bugs that are inevitably present in a 5 complex endeavor. 6 Q Based on your observations of the execution chamber, 7 is it possible to see the catheter site? 8 A No. That's covered up by the sheet that's placed over
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9 the prisoner. 10 Q So if the catheter had infiltrated would the execution 11 team be able to detect it? 12 A By infiltration you mean if the fluid was leaving the 13 catheter and not going into the vein, what we call 14 extravascular position of the catheter tip, they would not 15 be able to see that in this configuration. 16 Q And if a large hematoma had formed, would the 17 execution team be able to detect it? 18 A Not in this configuration unless the sheet became 19 blood-soaked. That might give them a clue that something 20 was going wrong, but that would require the blood to 21 actually be leaving the body as opposed to collecting 22 inside the body in a hematoma. 23 Q I'd like to draw your attention to a statement from 24 the transcript of John Doe One's testimony in his 25 deposition, page 31 of the transcript, he states, "The
82
1 people who do the injections are nonmedical and they're in 2 the dark so they have a small flashlight that they're able 3 to quickly identify the syringes." Does injecting the 4 drugs in the dark create a risk of mistakenly injecting the 5 syringes in the wrong order? 6 A Yes. That's a ridiculous thing that they're being 7 asked to work in this encumbered or hindered situation 8 where they don't have good visibility of what they're 9 doing. That's a completely needless set-up for a problem. 10 Q So in general, do the problems in monitoring the 11 inmate for anesthetic depth exacerbate the risk that
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12 complications could go undetected? 13 A Yes, they do. 14 Q Does the inability of the execution team to detect 15 problems or complications exacerbate a risk that a mistake 16 by John Doe One or any other member of the team could go 17 undetected? 18 A Yes. 19 Q So is it your -- do you have an opinion as to whether 20 the drug delivery system used by Missouri creates a 21 significant risk of pain to the inmate? 22 A It does, a significant and needless remedial risk. 23 Q Assuming that the doctor -- John Doe One's discretion 24 is in the future limited and he is required to give five 25 grams of thiopental, does that allay your concerns
83
1 regarding the doctor's lack of qualifications to induce 2 anesthesia? 3 A No, it doesn't. First of all, my understanding is 4 that ultimately the warden or the director of the 5 Department of Corrections is responsible for all -6 everything that happens regarding an execution, including 7 the details. But the doctor has said that he's the person, 8 the only person they have to advise him about any of 9 this -- of these features of the execution, of any of the 10 medical aspects, so it's pretty clear that any directive 11 that would come from the higher-level person would be 12 initiated by the doctor himself. So it's just sort of a 13 bureaucratic work-around and it leaves him basically as the 14 sole person who is guiding what's occurring.
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15

And as we have discussed, he's completely lacking

16 in the credentials and qualifications and knowledge, skill

17 set and experience to be entrusted with the delivery of

18 general anesthesia, especially in an incredibly important

19 thing like an execution.

20 Q And does determining the intended dose of thiopental

21 ensure that that is the dose that will be delivered

22 successfully into circulation?

23 A I'm sorry. Could you ask that again?

24 Q Does determining with certainty what the intended dose

25 of thiopental is, does that guarantee that that intended

84

1 dose will be delivered successfully into the circulation? 2 A No. You could be intending to give five grams, you 3 could be intending to give 50 grams, it doesn't really 4 matter. When you give intravenous drugs you need to 5 undertake some independent method of assessing what the 6 effects of that intended dose is and find out what in fact 7 actually happened. That's absolutely essential. 8 Q Earlier you testified about the components of a 9 written execution protocol. Is a directive that specifies 10 the dosage of the drugs the equivalent, in your opinion, of 11 a written execution protocol? 12 A No. It's more like you're saying it's a list that 13 says the name of a drug and the dose of the drug. That's 14 just a list of ingredients. What you really need is a full 15 protocol that lays out in clear and concise detailed 16 instructions everything that needs to happen. If you don't 17 put that in writing, then it might not happen and that

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18 jeopardizes the interests of the state and the Department 19 of Corrections and of the prisoner. 20 Q Assuming that the doctor still has discretion to 21 determine alternative means of IV access, do you have 22 concerns regarding the safety of the IV access procedure? 23 A This doctor has made a huge error in judgment in how 24 he decided to obtain IV access. No other state to my 25 knowledge proceeds by putting a femoral line or a
85

1 subclavian line in a person when a peripheral IV catheter

2 placement can be achieved. So he should not -- he's just

3 made, I think, too many mistakes and he shouldn't be

4 entrusted with any part of this process.

5 Q Are there complications that can arise during any part

6 of the execution that would require a doctor to make quick

7 decisions using his medical judgment?

8 A Oh, sure. Sometimes things go wrong when we're

9 inducing general anesthesia, just like they can go wrong

10 when the plane is taking off or whatever, and you want the

11 pilot of the plane and you want the anesthesiologist to be

12 nimble and adept in figuring out what to do, and that

13 includes making on-the-fly-calculations and understanding

14 doses of drugs.

15

This doctor in his deposition basically said he'd

16 have a hard time doing this stuff. He has his nurses help

17 him out with these things, and he's no good with numbers.

18 If he can't do his cable bill, then he should not be

19 charged with making these on-the-fly ad hoc changes that

20 sometimes a doctor would need to make inducing and

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21 maintaining general anesthesia. 22 Q So then given that John Doe One would still be 23 participating in or overseeing the execution procedures, or 24 assuming that he would be, do you still think there would 25 be a significant risk of unnecessary pain in the execution
86

1 procedure?

2 A Yes, I do.

3

MS. ANDERS: Your Honor, if I could have a

4 moment.

5

That concludes my direct examination, Your Honor,

6 but I'd just like to confirm that the Exhibits 1 through

7 23, which are the discovery materials, have been admitted

8 into evidence.

9

THE COURT: Those are the ones agreed upon in

10 advance?

11

MR. HAWKE: Yes, Your Honor.

12

THE COURT: Okay.

13

MS. ANDERS: The photo stills that we showed from

14 the video, we separately marked those as exhibits. Would

15 it be acceptable if we enter those into evidence, just for

16 convenience?

17

THE COURT: I have no problem with that. They

18 are part of the video anyway.

19

MR. HAWKE: No objection.

20

MS. ANDERS: Thank you.

21 CROSS-EXAMINATION BY MR. HAWKE:

22 Q Can you describe for the record what the execution

23 chamber at the Eastern Reception and Diagnostic Center

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24 looks like? 25 A The chamber itself, or the overall layout of all the
87

1 rooms?

2 Q The chamber itself.

3 A It's a room, I'd make a very broad estimate, of maybe

4 twenty feet by twelve feet or something along those lines.

5 There's very little in the room. The main thing is the bed

6 that the prisoner is placed on, and I believe there are

7 windows on all four walls of that room and I believe there

8 were I think at least two doors to that room, one going to

9 a work room where the executioners stand and one I think

10 leading to the area where the prisoner -- the holding cell

11 where he's kept before the execution.

12 Q And is the room constructed of block material,

13 concrete block material?

14 A I'm sorry. I don't recall what the construction was.

15 I think the walls might have been painted, so I'm not sure

16 what it was made of.

17 Q And can you describe -- I believe you said during

18 direct examination there was a window between the execution

19 chamber and what was described as the execution support

20 room?

21 A Yes, sir, there is.

22 Q What was the size of the window between those two

23 rooms?

24

THE COURT: Get to the point here, because we

25 already know, it's a matter of record what it looks like,

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1 Mr. Hawke. If you have a specific question, get to that

2 question.

3 Q (By Mr. Hawke) Would you describe that window as a

4 large window?

5 A Yes, it's a full-sized window.

6 Q And I believe you said that there were blinds on that

7 window?

8 A There's a venetian blind, yes.

9

THE COURT: Is this the window here (indicating)?

10

THE WITNESS: Yes. You have the picture where I

11 can see the top of his head?

12

THE COURT: Yes.

13

THE WITNESS: Yes, that's the window.

14 Q (By Mr. Hawke) And when you're in the execution

15 support room you can view what is occurring in the

16 execution chamber through that window?

17 A Yes.

18 Q With the limitations you described during direct

19 examination.

20 A That's correct.

21 Q And I believe the photograph reflects that there are

22 thin black lines where the venetian blinds are?

23 A Yes, the slats of the blind are there, yes.

24 Q But the offender can still be observed through that

25 blind?

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1 A There's a limited ability to observe, yes. It's 2 partly obscured by the things that I talked about. And if

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3 I could just clarify, the blinds are at an angle so one's 4 head has to be at just the right height to be able to see 5 the prisoner's face, so one has to be standing in just the 6 right place. So for some people, depending on their height 7 and where they're standing, their view would be more 8 obscured than others because of the angle of the slats of 9 the venetian blind. It can only be -- its maximal 10 transparency is only present at one angle. 11 Q Do you know what the purpose of the blinds is? 12 A We were told during the tour. We were given a reason 13 for their presence, yes. 14 Q What was the reason? 15 A We were told that there are witnesses in the opposite 16 side of the -- in the room that's opposite the work room 17 and that there's a concern that those witnesses would be 18 able to see through the window, even though it's a one-way 19 mirrored window, and see what's happening in that room and 20 they would be able to identify the individuals who were 21 standing there. And it's a needless concern because when 22 I stood in that same room we played with the blinds and 23 regardless of the configuration of the blinds, you can't 24 see the people who are in there. And even if you could, 25 that situation could easily be remedied by having them wear
90
1 surgical masks or something else that would obscure their 2 identity. 3 Q A disguise? 4 A Well, a disguise implies making them look like 5 somebody else. I'm talking about something that would
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6 make them unable to see who they are. That can easily be 7 achieved. 8 Q Now, I believe you testified during direct 9 examination that the tubing between the execution support 10 chamber and the condemned could not be observed. 11 A Large parts of it cannot be observed. The end of it 12 can be observed where one injects the drug. 13 Q So in the area that we're describing as the execution 14 support room, the tubing can be observed? 15 A A very small tip of the end of it. If you're talking 16 about a snake, it's like seeing just the very tail of that 17 snake. So, yes, I suppose you could say that you're 18 observing the tubing, but you're not observing the tubing 19 in its full extent. 20 Q Now -- and the people who do the injection of the 21 drugs observe the syringe; is that correct? 22 A I'm not sure I'd describe it as observing. It's a 23 darkened room, but they do have their hands on the syringe 24 and they're getting some tactile feedback in terms of back 25 pressure on the plunger. I don't know if they're looking
91
1 at the prisoner or if they're looking at the syringe, so I 2 don't want to characterize exactly what they're observing. 3 Q And how many people are in this area that is capable 4 of observing the offender during an execution? 5 A Whomever is standing looking at this picture, that's 6 the window there, and in front of them is a bench at about 7 waist height and I believe that there's a line of three 8 people standing pretty much shoulder-to-shoulder because
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9 it's a small space behind that bench. And then also to the 10 right-hand side of the bench, on the end of the bench, is 11 another individual. And then there's the physician who I 12 understand stands behind those three people but might also 13 move around. His position is less fixed. And then it's 14 not clear to me, I think there's the John Doe Two, the 15 nurse who participates in the execution, and I'm not sure 16 where that individual stands, or if they are one of those 17 people. 18 Q Okay. Now, you testified during direct examination 19 that you would not induce anesthesia from a remote 20 location; is that correct? 21 A I have tried to think of circumstances where that 22 might happen. It's very hard to come up with a realistic 23 one where that would be needed. 24 Q And when you testified to that effect, I assume what 25 you are describing there you would not induce anesthesia
92
1 for the purpose of surgery from a remote location; is that 2 correct? 3 A For any purpose. 4 Q For any purpose. But what you're basing that on is 5 your experience as an anesthesiologist who induces 6 anesthesia for the purpose of surgery; is that correct? 7 A Well, we induce anesthesia for other reasons in 8 addition to surgery, but if you're saying I'm basing it on 9 my clinical experience and training, then that would be 10 correct. 11 Q And you have not participated as a person involved in
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12 the preparation and planning of an execution? 13 A I have not. 14 Q Now -15 A If I can clarify that, because I have been involved in 16 I wouldn't call it an execution of an animal but the 17 euthanasia of an animal by intravenous techniques. 18 Q But that's not what is being done here; is that 19 correct? 20 A No. What is being done here is not done to the same 21 standard as what is being done to an animal during 22 euthanasia. 23 Q And this is not surgery, is it? 24 A There is a surgical procedure that's already taken 25 place with the placement of the central line.
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1 Q But that's already passed. 2 A That's right. 3 Q Now, you stated during direct examination that you 4 would always want to monitor the depth of anesthesia; is 5 that correct? 6 A When administering anesthesia one does need to monitor 7 its depth, yes. 8 Q And you base that upon your clinical practice? 9 A Yes, and my practice during animal research and also 10 during my research about lethal injection. 11 Q Now, can you describe for the court why that is 12 necessary, or is that necessary when a massive dose of 13 sodium pentothal is given as the initial drug? 14 A It's necessary because while I may be intending, and I
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15 believe there is an intent to give a massive dose, I'm very 16 comfortable that it was John Doe One's intent to give these 17 multi-gram doses, call them massive doses, just because 18 that intent exists does not mean that translates into the 19 successful delivery into the prisoner's circulation and 20 delivered to the brain of that dose of thiopental. 21 Q And I believe during direct examination you used the 22 example of alcohol, drinking; is that correct? 23 A I think I was using that as an example of what we call 24 titrating effects. I was trying to describe how a person 25 intoxicates themselves to a desired level by drinking a
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1 certain amount and seeing what effect it has and then 2 drinking more. 3 Q And if an individual were to consume, for example, 4 five cases of beer, would you need to observe that 5 individual drinking before classifying that person as 6 drunk? 7 A Absolutely. 8 Q So you would want to actually see him do the drinking 9 rather than categorize him as drunk after his ingestion of 10 five cases? 11 A Well, again to characterize somebody as drunk you have 12 to either do a behavioral test to show that they're 13 intoxicated, I think that's what the police officers do on 14 the roadside, sobriety test I think it's called, or you 15 have to undertake some chemical measurement like a 16 breathalyzer test to show the alcohol is there. So if you 17 drink five cases of beer, it could be non-alcoholic beer
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18 like the beer I had last night and I wouldn't expect them 19 in any way to be intoxicated from that. 20 Q So your testimony today is that a dosing of five 21 grams of sodium pentothal would be insufficient to induce 22 anesthesia in Missouri? 23 A You are mischaracterizing my testimony. 24 Q Did you testify to that effect during direct 25 examination?
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1 A That was not my intent to testify to that effect. My 2 intent was to say if one successfully achieves delivery of 3 five grams of thiopental into a prisoner's circulation and 4 the circulation successfully carries that throughout the 5 body, including the brain, then that would be a sufficient 6 dose to guarantee a surgical plane of anesthesia. But 7 intending to give five grams is not the same as 8 successfully achieving the delivery of five grams. 9 Q So to make sure I understand, if five grams goes in, 10 then that's adequate anesthesia? 11 A If five grams, not just goes into the prisoner's body, 12 but goes into his circulation and the circulation is active 13 and carries it throughout the body including part of it to 14 the brain then -- and there is nothing to obstruct the flow 15 of blood to the brain, then that would deliver anesthesia. 16 Q And if 2.5 grams goes in, would that be sufficient? 17 A Yes, that would be. Again, not just going in, but 18 being delivered into the vein and carried by the 19 circulation throughout the body. 20 Q What number would you say would be insufficient?
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21 A Well, you can't put a specific number on any 22 individual person. That's enormous person-to-person 23 variation and it's in response to many drugs, including 24 anesthetic drugs and including thiopental. So some people, 25 just like your beer analogy, can be rendered unconscious by
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1 probably one beer and there are other people who I think 2 can drink, I don't know, whatever large amount, like a case 3 or something, and still manage to drive a car. So there's 4 enormous variation. I can't put a specific number on it. 5 It depends on other factors like the person's weight, 6 whether they have been taking drugs like anti-seizure 7 medications or many other drugs, anti-anxiety drugs that 8 can affect their resistance to drugs like thiopental. 9 Q Have you ever monitored a condemned person during an 10 execution? 11 A No. 12 Q So you have not observed a person being executed who 13 was not under the effect of anesthesia, either in Missouri 14 or around the country? 15 A I have never been present to observe the induction of 16 general anesthesia during any execution procedure. 17 Q Now, I believe you testified that there was a 18 monitoring device at the execution chamber. Is that an 19 EKG monitor? 20 A My recollection is there is a thing called a pulse 21 oximeter and another device called an EKG which monitors 22 the electrical activity of the heart. 23 Q And the purpose of that is to determine when the
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24 offender has passed away? 25 A I believe that's correct, yes. It is not being used
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1 to monitor anesthetic depth. 2 Q Up on your computer screen is Exhibit 30. Do you 3 know where in the execution support chamber that picture 4 was selected? Whether that's the position of John Doe One, 5 John Doe Two, John Doe Three or John Doe Five? 6 A I don't know for sure. I know it's not -- well, you 7 have to understand that the video camera has a zoom 8 function, so I can't tell from this picture how far the 9 videographer was standing from the window when it was 10 taken. I think it could either be from the person who is 11 standing directly behind the bench or it could be from a 12 person who is looking over their shoulder or between two of 13 the people who are standing behind the bench, but I can't 14 say for sure because of that zoom effect. 15 Q Now -16 A But there's a wall behind that area, quite close 17 behind it, so they couldn't have been more than probably -18 I'd say that's at most five feet, probably more like four 19 feet from the window. 20 Q Now, you said that there could be a problem with the 21 IV access because it would become disconnected; is that 22 right? 23 A Yes. 24 Q If it becomes disconnected, then none of the drugs 25 enter the offender; isn't that correct?
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1 A If it's fully disconnected, then no drug would enter.

2 In fact, there would be blood leaking back out of the

3 triple lumen catheter. If it became partially

4 disconnected, which is another kind of disconnection,

5 then there would be -- one would expect only a partial

6 delivery of the drugs.

7

I'll make this comment. The way it's set up

8 with a mattress is different from other -- many other

9 execution chambers. Other execution chambers just have a

10 hard metallic gurney and any leaking would immediately drip

11 through onto the floor. But in this setting there's a

12 mattress there that in all likelihood would absorb a

13 considerable amount of fluid before it showed up on the

14 floor. And again, the IV introduction site is deliberately

15 kept visible to the personnel so they can see if a leak is

16 occurring. And neither of these conditions are applied

17 here.

18 Q Now, for it to be disconnected, the entire length of

19 the catheter would have to come out of the offender; isn't

20 that correct?

21 A No, that's incorrect.

22 Q So there is a connection between the catheter and the

23 tubing that you're saying could become dislodged?

24 A That's correct. There is a piece of tubing, I forget

25 how long it was, maybe six or seven or eight feet,

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1 something like that, and then that is attached to the end 2 of the triple lumen -- the end that's outside the prisoner

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3 of the triple lumen catheter. 4 Q And if that were to happen, none of the drugs would go 5 into the offender; isn't that correct? 6 A If there was a partial disconnection, then there would 7 be a partial reduction in the delivery of drugs. If there 8 was a complete disconnection, then there would be a 9 complete obliteration of all drug delivery. 10 Q And similarly, if there is, as you described it, a 11 kink in the line, then the drugs, none of the drugs would 12 go into the offender; isn't that correct? 13 A No, that's not correct. 14 Q Okay. If there's a kink in the line are you saying 15 they would go into the offender more slowly? 16 A A kink in the line could be a complete obstruction so 17 that no drugs could go in, or it could be a partial 18 obstruction, increasing resistance. Just like your garden 19 hose, you can kink it so no water comes out the end of it, 20 but you can also kink it in a way where the flow is just 21 decreased. So another possibility is if the tubing could 22 be kinked. And the way it's configured, there's a real 23 risk of that, and that would increase the resistance to 24 injecting drugs and it would also interfere with the 25 ability to assess the back pressure, which, as I described,
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1 is an important thing. 2 Q So when that happens, the person who is doing the 3 injection has to plunge harder? 4 A My understanding in this context is they are unable to 5 plunge harder because they are already plunging as hard as
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6 they can, so they would be unable to do anything greater 7 than what they were already trying to do. 8 Q So in that scenario is the effect of the kink the 9 drugs would go in more slowly? 10 A That's correct. 11 Q Now, your understanding of the Missouri protocol is 12 that there's one -- is it correct that your understanding 13 is that there is the first drug, sodium pentothal, followed 14 by a flush, followed by a second drug, Pavalon, followed by 15 a flush, followed by the third drug, potassium chloride, 16 followed by a flush? 17 A Just to clarify, there is no protocol. But in terms 18 of what has been done in the past, that's a fair 19 representation of the drug phase. But as I described, I 20 think it's useful to break this whole thing into four 21 phases, with the first phase being achieving an IV access, 22 and that's something that warrants protocol surrounding 23 that. And then there's the second phase, which is delivery 24 of the anesthetic. The third phase, the paralyzing drug. 25 And the fourth phase is the drug that causes death.
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1 Q But that is a correct description of the order that 2 the drugs are injected? 3 A That's correct, that's the order they're intending to 4 inject them. 5 Q And if there is a kink in the line, that would not 6 change the order of the drugs that are being injected? 7 A No, it wouldn't, unless a person said something is 8 wrong and stopped and they said we better stop this and
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9 they went and decided to run a different line of tubing or 10 maybe plug it into a different one of the three catheters 11 in the triple lumen catheter and they forgot where they 12 were, or the syringes got knocked around in that process. 13 So there are ways where a kink -- anything that disrupts 14 the sequence of injection in an unexpected way can cause 15 disorder and, therefore, disrupt the smooth performance of 16 the procedure. 17 Q And are you telling the court this morning that there 18 should be a written protocol that covers all of those 19 contingencies? 20 A When you have individuals who are not competent or 21 qualified to adapt to unexpected events and contingencies, 22 then you need to have some written instructions for them 23 about what they would need to do. 24 Q To cover all contingencies? 25 A I think all reasonably foreseeable contingencies. One
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1 needs to plan properly for an important event like this. 2 Obviously there are things that can happen that nobody can 3 reasonably expect or anticipate, and that's why in the end 4 you also want to have people who are able to adapt. 5 Q When you say reasonably foreseeable, what percentage 6 of a possibility are you placing on that? Is it like a one 7 percent chance of something happening or a tenth of a 8 percent chance of something happening or a hundredth of a 9 percent chance of something happening? What are you 10 telling the court? 11 A You can't put numbers on it. It's like teaching
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12 somebody to drive to be safe to take a motor vehicle on the 13 road. They have learned a lot of procedures as it were, 14 how to use their hand brake and how to signal and how to do 15 various things. They learn how to make hand signals if 16 their signals go out. But there are things that you can't 17 anticipate, so they need to have a certain demonstrative 18 level of training and proficiency in driving a car before 19 you allow them to go out on the road. And there are 20 unexpected things that you can't put down in the driver ed 21 manual that can happen. A cow crossing the road, that's 22 probably not in the book, but the person needs to be able 23 to figure out what to do if a cow crosses the road, that 24 there might be other cows coming around and they need to 25 slow down and take it easy.
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1 Q Now, you state that other states do not use an IV bag, 2 is that correct, in their execution protocol? 3 A If I stated that, I misspoke. Other states do use 4 IV bags. 5 Q And Missouri is the only state that does not? 6 A To my knowledge, yes. I should clarify that while 7 most states have revealed their written protocols in some 8 cases to the public and in other cases under protective 9 orders, not every state has done that. 10 Q Now, the reason -- is there a reason that they use an 11 IV bag? 12 A I'm not inside their head so I don't know what is 13 their thinking, but there is a good reason to use IV bags 14 for the induction of anesthesia.
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15 Q Now, in Missouri the execution process is a very quick 16 process; isn't that correct? 17 A Can you describe quick? Quick as compared to what? 18 Q Compared to surgery, what you're used to. 19 A We're not talking about surgery. We're talking about 20 the induction of general anesthesia, and I'd say within 21 boundaries it's approximately the same kind of time frame 22 as induction of general anesthesia tends to occur during a 23 clinical setting. 24 Q Now, assuming that an execution is scheduled at 25 midnight, do you recall when the insertion of the catheter
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1 occurs? 2 A I'm sorry, I don't recall, but I believe it was in a 3 relatively short time frame beforehand. It was not the day 4 before or anything like that. 5 Q And the purpose of using the catheter would be -- is 6 only for the execution; is that correct? 7 A That's right. It's not being put in for any 8 therapeutic purpose. 9 Q So once it's used, there's no further use for it? 10 A Once the execution has been achieved? 11 Q Yes. 12 A Yes. Assuming the execution is not stayed, assuming 13 the execution is actually carried out, then that catheter 14 does not serve any useful purpose, although for autopsy 15 purposes it's standard procedure to leave all catheters in 16 their normal place. 17 Q I believe you stated during direct examination that if
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18 there was leakage, that the syringe -- that the pressure on 19 the syringe would not feel right. Am I summarizing your 20 testimony correctly? 21 A It might not feel right, that's correct, yes. 22 Depending on the leakage and whether there were things like 23 kinking or other problems interfering. And also implicit 24 in that, knowing that it would feel right implies that the 25 person has in their head a notion of what feeling right and
105

1 feeling wrong is. If they lack that, then there is no feel

2 right or feel wrong for them to experience.

3 Q Are you familiar with the experience of John Doe Three

4 and John Doe Five in the execution process as injectors?

5 A I'm sorry, I don't have in my head exactly who -- I

6 know who John Doe One is, not who they are but I know what

7 their responsibilities are, John Doe One, the physician,

8 John Doe Two, the nurse. But if you could refresh me on

9 what John Does Three, Four and Five specifically do. I

10 don't want to confuse the record.

11 Q Three and Five are the current injectors.

12 A They're the individuals pushing the drugs?

13 Q Yes.

14 A Okay.

15 Q Are you familiar with their experience at doing that

16 job?

17 A I don't know their life history, how many executions

18 they have participated in, how many times they have

19 injected through central lines and all of those things, no.

20

Further, I believe those are just titled

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21 positions. They could be occupied by any individual, just 22 like the presidency or a senator. So it's a titled 23 position, No. 1, No. 2, No. 3, that any individual could 24 occupy. If John Doe Three was sick that day, somebody else 25 would step in to fill his place, I believe. So I don't
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1 know the backgrounds of whomever might be available to step 2 in. 3 Q Now, the syringes that are used at the execution 4 support room, do you recall that those syringes are 5 labeled? 6 A You'll have to refresh me. I don't want to confuse 7 the record. I have seen many different methods used in 8 different states. I believe that the name was written on 9 the syringe, but I'm not sure whether it was -- a paper 10 label was put on or whether it was written directly on the 11 syringe, so if you could describe for me what is done, that 12 would be helpful. 13 Q You don't remember? 14 A I don't remember precisely. I believe they wrote with 15 a magic marker on the actual plastic of the syringe. 16 Q And do you recall that the syringes are placed on a 17 block of wood in a particular order in the execution 18 support chamber? 19 A Yes, I do recall that there's an especially shaped 20 block of wood with concave depressions in it for the 21 syringes to lie in. 22 Q And they go onto that block of wood in the order in 23 which they are to be given; isn't that correct?
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24 A That's the plan. That's what is supposed to happen, 25 but there is no protocol dictating that.
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1 Q I believe you testified during direct examination, and

2 correct me if I'm wrong on that, that even if Missouri

3 intended to use 50 grams of sodium pentothal, you would

4 still find the Missouri practice to be unacceptable?

5 A If that were the only change that were made, yes.

6 When you use potassium to kill a person or any animal,

7 which is what is being -- what the Department of

8 Corrections is choosing to do in this setting, it's

9 essential that the person who is performing the

10 administration of the potassium, intravenous potassium, is

11 experienced in the assessment of anesthetic depth and

12 experienced in the administration of intravenous

13 anesthetics and, further, that they undertake specific

14 tests to ensure that the person or the animal is properly

15 anesthetized, they're at a surgical plane of anesthesia.

16

So if the only change that were made to Missouri

17 protocol were just to increase the dose of thiopental, that

18 would still be deeply adequate. It's very important to

19 have a person who knows how to check anesthetic depth, who

20 knows how to administer intravenous anesthetics, actually

21 go and assess that the animal, if it's a veterinarian

22 procedure, or the prisoner in an execution, if you want

23 the execution to be humane, they have to assess that the

24 surgical plane of anesthesia has been achieved. If they

25 don't do that, it's inadequate.

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1 Q So a massive overdose of the first drug, sodium

2 thiopental, is insufficient, in your estimate?

3 A The intent to deliver a massive overdose is

4 insufficient. When veterinarians use potassium to put down

5 dogs, they have an intent to give a massive overdose of

6 barbiturates. They are also professionals who are trained

7 and experienced in the administration of intravenous

8 anesthetics. Even in that setting, even when they're right

9 there in the same room, they are required to be

10 knowledgeable in assessing anesthetic depth and are

11 experienced, and they are required to undertake certain

12 tests to demonstrate a surgical plane of anesthesia.

13

So you can be intending to give any amount of

14 thiopental. It doesn't matter if you're going to use

15 potassium to kill an animal or a person, you need to first

16 demonstrate a surgical plane of anesthesia. You need to

17 assess anesthetic depth.

18 Q So giving a massive overdose is insufficient?

19 A Intending to give a massive overdose is insufficient.

20 If you successfully achieve delivery into the circulation,

21 which is something that can never be assumed with

22 intravenous anesthetic, then a 50-gram dose would certainly

23 be sufficient, but you can never make that assumption.

24 Q Is there any barbiturate that would satisfy you?

25 A If one is going to use potassium to cause cardiac

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1 arrest, to achieve the death, then it doesn't matter what 2 drug you use to provide the anesthesia or how much you're

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3 intending to use. You must assess the anesthetic depth. 4 You must demonstrate the animal or the person is in a 5 surgical plane of anesthesia, which is a very deep plane of 6 anesthesia. 7 Q Now, you stated during direct examination that 8 Missouri was the only state to use femoral venous access; 9 is that correct? 10 A If I stated that, that was a misstatement. It's the 11 only state that I'm aware of that does not first attempt to 12 obtain peripheral IV access and only proceeds to femoral -13 proceeds to a femoral access in people who do not need 14 femoral access. 15 Q Now, peripheral access is through the arm, or is it 16 through the leg as well? 17 A Either one of those would count as peripheral IV 18 access. The hands, the wrists, the arms. Anything -- I 19 don't think there is exactly a bright line, but anything in 20 the extremities would count as peripheral access. And I 21 should just say the groin is -- the end of the catheter is 22 inside the main part of the body, the trunk of the body, 23 and most people would call that peripheral access. 24 Q And would you agree, generally speaking, that those 25 peripheral veins are the ones that drug addicts use for the
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1 injection of illicit drugs? 2 A That's right. 3 Q And that use of illicit drugs damages those veins? 4 A Over time it tends to do that, yes. It's not just 5 drug addicts who have that problem. It can be people who
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6 have never used intravenous drugs of abuse. 7 Q And would you agree with the statement that use of a 8 femoral vein provides an effective access to the venous 9 system, to the circulation system? 10 A When the catheter is properly placed, it does provide 11 effective access, that's right. 12 Q And it puts the drugs -- it puts the poisons where 13 they need to be, close to the heart; would you agree? 14 A Well, first of all, they're not poisons. They're 15 medications. Secondly, the circulation is what carries 16 them where they need to be. The place where they need to 17 be is not close to the heart. The place where they need to 18 be is different for each of those three medications. The 19 thiopental needs to be in the brain and the spinal cord. 20 The pancuronium needs to be in the muscles. And the 21 potassium needs to be in the heart. The central line does 22 not put them close to the heart. The circulation is what 23 brings them to the heart and into the other places. 24 Q The central line places the potassium close to the 25 heart; would you agree?
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1 A Define close. What's your definition of close in this 2 context? 3 Q Why don't you define it for the court? 4 A Well, just to clarify, I will say that peripheral IV 5 access can be closer to the heart than central IV access. 6 A catheter placed in the elbow right here has -- the drug 7 would have to travel from about here to the end of the 8 catheter, a distance of about one foot, to reach the heart.
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9 And that contrasts with a femoral catheter that's down in

10 the groin. If that catheter is six inches long, it comes

11 up to somewhere in the lower pelvis, but it would still

12 have to travel a considerable distance to get to the

13 heart.

14

The surgeon mischaracterized his catheter and

15 where its location is. He's very wrong. He's off by

16 about --I think about ten inches, and that's a great

17 distance.

18 Q About like that (indicating)?

19 A Yes. He's saying it's under the xiphoid, I think two

20 inches from the xiphoid process, which is the bottom of

21 the breast bone and very close to the heart, and he's

22 wrong.

23 Q Now, you started your direct examination by stating

24 that you had practiced anesthesiology for 15 years; is that

25 correct?

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1 A That's right. I think it's actually more like 18 2 years now since I became attending anesthesiologist. 3 Q But your practice does not include participation in 4 the lethal injection process of any state? 5 A Not for human beings. I have done animal research 6 where we have used IV intravenous drugs to end the animal's 7 life after an experiment. 8 Q So when you stated that you induced anesthesia, that 9 would be for a clinical purpose. Not for the purpose of 10 lethal injection? 11 A In human beings, that's correct.

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12 Q Now, you stated that you had been involved in 13 lethal -- in testifying in other lethal injection cases; is 14 that correct? 15 A That's correct. 16 Q And is there a state or a commonwealth where the 17 government has retained your services to testify about the 18 government's execution protocol? 19 A I know -- just to be clear what your question is -20 Q The government being the state or a prison official. 21 A No, no one has ever asked me to testify in that 22 regard. 23 Q So generally speaking then, it is fair to characterize 24 your testimony as being at the behest of the offender; you 25 are retained by the offender?
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1 A In most cases. Sometimes it's been by another party, 2 but not the state. There was an execution in Connecticut 3 where the offender was volunteering, wanted to proceed and 4 other parties did not want the execution to proceed, or the 5 other parties were concerned about the manner in which the 6 execution was going to be conducted. 7 Q In Connecticut, did they set up the peripheral access 8 with two peripheral sites, or with one? 9 A I believe the Connecticut protocol calls for two 10 access sites, but I don't recall specifically in that 11 execution whether they put one or two in. In some cases 12 there is difficulty in securing a second line and it's 13 abandoned, so I don't know specifically. I can't recall 14 that autopsy report.
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15 Q In those states that use peripheral access, do they 16 set up two peripheral IVs? 17 A Yes. 18 Q And in those states, do they use one of the access and 19 keep the other as a back-up, or do they use them both? 20 A It varies from state to state. 21 Q Okay. So some states just have one in reserve if it's 22 needed? 23 A That's correct. 24 Q And other states actually actively use both accesses? 25 A That's correct.
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1 Q But --

2 A At least that's their representation. I'm not there

3 to see what they actually do.

4 Q I understand. And I believe you testified that you

5 had observed the execution chambers of other states.

6 A If I did, I -- only one other state.

7 Q One other state. Which state was that?

8 A California.

9 Q And did you approve of what you observed in the

10 California execution chamber?

11

MS. ANDERS: Objection, Your Honor; relevance.

12

THE COURT: I'll allow the question.

13 A Well, I wasn't in the posture of approving or not

14 approving. I don't have the authority to do that.

15 Q (By Mr. Hawke) Have you written a report about the

16 California chamber?

17 A I'm -- I'm not sure that I have. I have written stuff

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18 about it before seeing it. I just can't recall whether I 19 was asked to provide a report after that inspection. I 20 honestly don't know. 21 Q Let me approach the question a little bit 22 differently. Are you critical of what you observed in 23 California? 24 A There are some features of what is being done that 25 is very problematic and some features that are not
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1 problematic. 2 Q That's fine. Now, I believe you stated that you 3 corresponded with the first person who set up the lethal 4 injection process? 5 A Yes. 6 Q Who was that person? 7 A A person named Dr. Chapman. When I say set up, that's 8 probably the -- when you say set up, that's not the term. 9 The person who -- he's not the person who conceived the 10 concept of lethal injection. I think that was actually 11 done during -- by the German government in World War II, 12 but he's the person who -- he's not the person who 13 conceived the introduction of lethal injection in the 14 United States. That was done by a legislator in Oklahoma, 15 but he's the person who conceived the use of these three -16 or the use of the drugs that are used in lethal injection. 17 He didn't really go beyond that to talk about exactly how 18 they are given as they are given now. 19 Q And he's the doctor from Oklahoma; is that correct? 20 A He is a doctor from Oklahoma.
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21 Q Now, during direct examination I believe you stated 22 that today you find use of capital punishment, and what I 23 wrote down was, problematic when applied after the 24 adversarial process. Is that -25 A That's correct.
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1 Q By that, I think I understand you to say that you

2 disapprove of capital punishment. Am I understanding your

3 testimony correctly?

4 A The problem is how you get to decide. In my view, one

5 of the problems is how one decides who should get it and

6 who shouldn't, and it's not -- it's a result of our

7 judicial system, which has got to be the best judicial

8 system in the world, but it's still designed to reach an

9 outcome which is necessary for maintaining order in

10 society, and generally that outcome is the same as a

11 righteous or truthful outcome.

12

But the system is not perfect and errors can

13 occur in the sense that the correct outcome might not be

14 arrived at. And if the outcome is to do something

15 irreversible, mainly to execute someone, then I think the

16 protection can be arrived at in a open, truth-seeking

17 method as opposed to an adversarial one.

18 Q So as it's currently administered today in the United

19 States, you would be opposed to the imposition of capital

20 punishment?

21 A That's correct. I should clarify I didn't really have

22 a position on this before I found out what drugs were being

23 used and how it was being done. It really wasn't on my

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24 radar. It wasn't something that I thought much about. 25 Q Now, you stated during direct examination that your
117

1 review of the Missouri process showed that there were what

2 you described as variations in the quantity of sodium

3 pentothal given to the offender; is that correct?

4 A It showed variations in the amount that they were

5 intending to give.

6 Q And those variations range between 2.5 grams and

7 5 grams; is that correct?

8 A No, we don't really know -- well, we know how many

9 bottles -- sorry, kits, containers, each of which have half

10 a gram, they took out. So it's accurate that it sets a

11 ceiling of how much they were given. If ten kits, each

12 containing half a gram, were checked out as it were, then

13 it sets an apparent ceiling of five grams. There's no

14 floor set here because as the doctor describes, they give

15 some, they waste some, and they put down the total of those

16 two amounts and so you can't tell.

17

And even with the doctor's intention, given what

18 we know about these individuals working in the dark, under

19 time pressure, a person who has difficulty completing a

20 cable bill, who has numeric dyslexia, who has to rely on

21 the nurse because he's not good with figuring out

22 percentages and milligrams and things like that, you really

23 don't know how much was delivered to those prisoners.

24 Q Okay. Now, the other states that you have studied,

25 what is their intent on the quantity of sodium pentothal to

118

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1 be administered to the offender? 2 A That also ranges -- the highest I have seen is five 3 grams. 4 Q And what's the lowest? 5 A The lowest I have seen is around one or one and a 6 quarter grams. 7 Q One or one and a quarter. Okay. So one, one and a 8 quarter up to five is the intent of those other states that 9 you have studied? 10 A To my knowledge, yes, although I'm also aware of 11 consideration of protocol revisions that would change those 12 amounts. 13 Q Downward or upward? 14 A Upward. 15 Q Upward. Okay. Is any state contemplating a change to 16 an amount higher than five? 17 A I believe California is. 18 Q To an amount higher than five? 19 A I believe so, yes. 20 Q Okay. 21 A I think the latest iteration of their protocol 22 included a bolus amount and also an infusion of a 23 continuous drip, and that would result in a higher amount 24 than five, but I'd have to refresh myself to be certain 25 about that.
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1 Q And on the second drug, the Pavalon, you stated there 2 were also variations in the amounts that were given?
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3 A There's apparent variations. Again, we don't know 4 exactly how much was delivered. All we know is there was 5 an intended amount. 6 Q Okay. And is it true to say that for every state we 7 don't know what amount is actually given, only the intended 8 amount? 9 A Well, many states perform toxicology testing, so after 10 the prisoner is dead blood is drawn and used to measure the 11 concentrations of the thiopental and/or the pancuronium 12 and/or the potassium and that, in some settings, can be 13 used to provide information about the amount of thiopental 14 in the prisoner. 15 Q You might draw an inference; isn't that correct? 16 A Correct. You are sampling from one part of the body. 17 The only way to know the total amount delivered would be to 18 take the entire body and extract all the thiopental from 19 the entire body. 20 Q And those measurements from the blood, it depends on 21 where that blood is drawn; isn't that correct? 22 A That's correct. Among other things. 23 Q Now, I believe you stated during direct examination 24 that no other state has a physician participate in the 25 lethal injection process.
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1 A I didn't mean to -- if I said that, it's not what I 2 meant. No other state has participation to this level and 3 this level of authority vested in one sole physician. 4 Q Okay. Do other states have medical personnel assist 5 before the lethal injection occurs?
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6 A Yes. 7 Q During direct examination you were shown Plaintiff's 8 Exhibit 25, the drug log. What is the purpose of that log? 9 A If you could clarify the question, because purpose 10 implies an intent in some person's head, and I need to know 11 who -- the purpose for what person. 12 Q Do you know why that record is kept? 13 A I believe it's kept because the person who completes 14 it has been instructed to fill out this information. 15 Q What is the purpose of recording that information, 16 according to your understanding? 17 A It's to keep track of the flow of drugs, or the -- I 18 guess the transfer of the chain of custody of drugs from 19 one place and one person to another to know how much you 20 started out with, how much was given, how much was 21 injected, how much was discarded or flushed, and to keep 22 track of -- it's a tracking system I suppose one could call 23 it. 24 Q Okay. Now, in your clinical practice you state that 25 you record the amount of drug, anesthetic, that you
121
1 administer to an individual; is that correct? 2 A The amount that we intend to administer, yes; we 3 believe we administered. 4 Q But in Missouri, in this case we're dealing with an 5 execution, not a surgical process. 6 A We're dealing with the induction of general anesthesia 7 and after the induction of general anesthesia hopefully is 8 achieved, one then goes on to kill the prisoner with the
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9 injection of potassium. So there's a medical process

10 there, a necessary medical process, the induction of

11 general anesthesia. And that is followed by a step that

12 causes the prisoner's death, the injection of a lethal dose

13 of potassium.

14 Q And the purpose of recording the number, the amount of

15 the drug given in your practice, your clinical practice,

16 what purpose is that? Why do you write that number down?

17 A It serves several purposes. It allow us to know what

18 we have given, to know how a prisoner is responding when we

19 assess anesthetic depth. Since our memories aren't

20 perfect, we need to have a written record of what we have

21 done.

22

It's also used for tracking, again, the use of

23 drugs to make sure that the amount of a controlled

24 substance, say a narcotic, that's taken out by a doctor,

25 that none of it is diverted for purposes of abuse, that

122

1 it's either all given to the patient or it's flushed. 2 Q And you stated during direct examination that you 3 would not want to give an entire dose of an anesthetic or 4 an anesthesia after already giving a dose; is that correct? 5 A That's not what I was trying to say, no. I'm not sure 6 of the context, so you need to clarify your question, 7 please. 8 Q The doctor stated during his deposition that he would 9 give the entire dose of the anesthetic again in order to 10 achieve the effect that was needed, and you criticized the 11 doctor for trying to do that.

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12 A What he said, I believe, was that you have to give the 13 entire full dose. You can't just give, the second time 14 around, a partial amount of the amount you initially gave. 15 So, for example, if you were trying to give ten grams the 16 first time and you didn't get the desired effect, he said 17 you'd have to give ten grams again. And that's not true 18 and that's why I disagreed with it. 19 Q And you disagree with it based upon your clinical 20 practice, not with the goal of achieving an execution? 21 A I base it on the context that in order for the 22 execution to be humane, there is a phase of the execution 23 which is the induction of general anesthesia. The 24 procedure is very painful, it's a death-causing procedure. 25 The injection of potassium is very painful and requires a
123
1 surgical plane of anesthesia. You have to induce general 2 anesthesia successfully before you do that final painful 3 step. So I'm talking about a context of inducing general 4 anesthesia. 5 Q Now, you stated that sodium pentothal depressed the 6 cardiovascular system? 7 A That's correct. 8 Q How efficient is -- how quickly does that depression 9 occur? 10 A That depends on numerous factors. It can be rapid or 11 it can be slower. Depends on how much is given, how 12 quickly it's given, what the cardiovascular status is of 13 the patient or the prisoner when it's given, what their 14 cardiac output is, what their blood pressure is and the
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15 status of their cardiovascular system. Those are some of 16 the factors that would affect that answer. 17 Q So if it's robust, it fails more quickly, or if it's 18 sick, it's a bad heart, does it fail more quickly? 19 A We're not talking about failing. We're talking about 20 depression. We're talking about reducing the function of 21 it, and that effect will start very quickly after the drug 22 is administered. Basically as soon as it is pumped through 23 the heart it starts to depress the function of the heart, 24 and as soon as it's pumped into blood vessels it starts to 25 depress the tone of those blood vessels and lower the blood
124
1 pressure that way. So it's basically very, very rapid once 2 it reaches the thing that it's going to depress. 3 Q Now, the doctor, John Doe One, stated in his 4 deposition that the rapid onset of the effect of the 5 drugs is desirable, but I believe you testified that you 6 disagreed with that. 7 A Could you show me where he -- I don't remember 8 discussing -- I don't recall discussing that in my direct. 9 Q The reference given was page 95, line 4. 10 A I'm sorry. 11 Q Page 95, line 4. 12 A That was the questions of the direct examination. 13 Q Would you agree with me then, independently of that, 14 that the rapid injection of the drugs is a beneficial 15 feature of the Missouri execution process? 16 A No, that's not necessary to -- I believe the interests 17 of the execution process are, number one, to achieve
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18 justice by causing the death of the individual, and even

19 though it's not stated, I believe it's legally important

20 that it be conducted in a humane fashion, and that does

21 not require what I think you're characterizing as rapid

22 injection, that a humane execution could be a successful

23 injection of general anesthesia and anesthesia can be

24 achieved by injecting drugs at a rapid rate.

25

THE COURT: I thought your concern was as long as

125

1 the anesthesia had been effectively distributed within the

2 body, that was your primary concern.

3

THE WITNESS: You're exactly right.

4

THE COURT: And after that, it doesn't matter?

5

THE WITNESS: You're exactly right. So long as

6 it's delivered and maintained at a sufficient level to keep

7 the person asleep, how fast you gave it really doesn't

8 matter.

9 Q (By Mr. Hawke) Now, during direct examination you

10 were asked about Plaintiff's Exhibit 26, the package

11 insert. Does the package insert give information on what a

12 dose of sodium pentothal would be for the induction of

13 anesthesia for a surgery?

14 A It gives some approximate doses about -- these are

15 intended doses, doses that you would try to deliver. And

16 again, it's not for performing surgery. It's for inducing

17 anesthesia to a level where we can take control of the

18 airway.

19 Q Perhaps a step towards surgery, before surgery begins?

20 A The way it's supposed to work is before you undertake

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21 surgery you first induce and then maintain for a period of 22 time general anesthesia. 23 Q And what is the recommended quantity of sodium 24 pentothal that the package insert suggests? 25 A Can you refer me to the --
126

1 Q Page four. It's your exhibit.

2 A It starts off on page three talking about dosing and

3 administration. There's a long paragraph there and then it

4 goes into other things that doesn't relate to surgery like

5 treating convulsive states and procedures and psychiatric

6 disorders and so if you could just refer me to what --

7 Q Why don't you take a look at page four, what appears

8 to be the second -- I'm sorry, the first full paragraph,

9 the last sentence.

10 A Okay. I see where you're talking about now. It talks

11 about three to four milligrams per kilogram. And just to

12 clarify that, for a typical adult male who would weigh

13 around 70 kilograms, that would be an amount of about 200

14 plus milligrams, 210 milligrams, 280 milligrams.

15 Q Okay. And that sentence reads, "As an initial dose

16 210 to 280 milligrams of pentothal is usually required for

17 rapid induction in the average adult."

18 A That's correct, yes.

19 Q And for those of us who are numerically challenged,

20 that would be point -- .2, almost .3 grams?

21 A Correct.

22

MS. ANDERS: Your Honor, I'd like to object here

23 not to the substance of the cross, but the fact that his

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24 cross is counting against plaintiff's time.

25

THE COURT: I'll be the judge of that.

127

1

How much more time do you intend to take,

2 Mr. Hawke?

3

MR. HAWKE: I'm going to say twenty minutes.

4

THE COURT: I'll give you ten.

5 A I should clarify also, that that text there is

6 accompanied by a detailed description of how one assesses

7 anesthetic depth because these are just estimated initial

8 amounts. Like we discussed, these are intended amounts.

9 Q (By Mr. Hawke) For the purpose of surgery, not for

10 the purpose of execution?

11 A For the purpose of induction of anesthesia, whether it

12 relates to surgery or an execution.

13 Q And there's no instruction in there on monitoring

14 anesthetic depth for an intended dose of five grams, is

15 there?

16 A I believe the instructions for monitoring anesthetic

17 depth are just generic instructions of how one can do that.

18 I don't believe it's curtailed or restrained to any

19 specific dose range.

20 Q You said that the doctor found the sodium pentothal

21 to be hard to dissolve from which you concluded that the

22 sodium penothal was defective; is that correct?

23 A I didn't draw that as a firm conclusion, but it

24 certainly raises that concern. That's one possible

25 explanation.

128

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1 Q The manufacturer is Abbott Laboratories?

2 A It used to be Abbott Laboratories, but it no longer

3 is.

4 Q Okay. Has the manufacturer of sodium pentothal

5 recalled any ampules of sodium pentothal in the past three,

6 four years?

7 A I wouldn't know the answer to that question. I

8 haven't asked. I wouldn't be privy to it, I believe, even

9 if I did ask.

10 Q You wouldn't be privy to a recall of a drug you use

11 every day?

12 A First of all, I don't use thiopental every day, and

13 very few anesthesiologists do.

14 Q So you're unaware of any recall?

15 A I'm not aware of a recall of thiopental in recent

16 history.

17 Q Now, I believe you said that the doctor found

18 sodium --

19 A If I could clarify. Also recall is something that's

20 done when a whole batch of -- let's say the products of one

21 week's worth of manufacturing is all pulled back, not

22 knowing whether the individual lots are damaged or not.

23 But it is -- it definitely does happen with drugs. They

24 come to a specific hospital that there's problems with --

25

THE COURT: Doctor, if you don't know, there's no

129

1 need to clarify.

2

THE WITNESS: Okay.

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3 Q (By Mr. Hawke) Did John Doe One state in his written 4 interrogatory that he was unable to dissolve the sodium 5 thiopental? 6 A I think the word used was difficulty, there was 7 difficulty dissolving it and unable to dissolve the full 8 dose into the proper volume. He was only able to partly 9 dissolve it. 10 Q I believe you testified already that access to the 11 venous system through the femoral vein is an effective 12 means of obtaining access to the circulation system; is 13 that correct? 14 A When it's performed properly and the catheter is in 15 the right place, that's correct. 16 Q And you made reference to use of a needle during this 17 process. 18 A Yes. 19 Q Okay. Now, how broad, how wide is that needle? 20 A Do you mean specifically in the Missouri executions? 21 Q Yes. 22 A I'd have to look at the photograph of the kit. 23 Q I believe it says .18 gauge. So how wide is that? 24 A I don't know in terms of the number of -- it's a 25 little bit narrower than a coat hanger, a little bit
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1 narrower than a coat hanger wire or a guitar string, 2 approximately. 3 Q But you're not able to tell the court how many 4 millimeters? 5 A I don't know how many millimeters an .18 gauge is. I
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6 believe it is -- it also refers to the -- it may refer to 7 the inner diameter of the needle, not the outer diameter of 8 it. 9 Q Now, you state that piercing an artery happens 10 frequently; is that correct? 11 A Yes. 12 Q Dose that happen one out of two, one out of three, one 13 out of ten, one out of a thousand? What's the probability 14 of that? 15 A It really depends on the hands of the practitioner, 16 the experience they bring to the table, and on the 17 characteristics of the individual. But it's happened to me 18 many times. I don't want to put a number on it, but I'm 19 not at all surprised when I'm probing for the femoral vein 20 that I see blood that's from the femoral artery. 21 Q And when that happens, there's no remedy for that; is 22 that correct? 23 A That's not correct. 24 Q Oh, there is a solution to that problem. What is it? 25 A If there's a puncture of the artery and blood is
131
1 leaking or being pumped out of the artery and collecting in 2 a hematoma, then there are a series of things that one 3 might need to do depending on how severe the injury is to 4 the artery. 5 Q Okay. So it is something that can be remedied? 6 A Generally, yes. It may require a surgical procedure. 7 It may require opening up the groin to close the injury 8 directly.
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9 Q Now, on Plaintiff's Exhibit 18, where is that raised

10 ridge that you discussed?

11 A Maybe you should bring the picture back up. It's hard

12 to --

13 Q It's plaintiff's exhibit. I assume you have it.

14

Where is that raised ridge on that

15 two-dimensional picture?

16 A I'm sorry. Do you have the picture in front of you.

17 I can't see what you can see.

18

Okay. Right at the tip of the catheter is the

19 middle of that ridge. The ridge extends at about -- it

20 would be in the direction of 2 o'clock if it were a clock

21 face.

22 Q And that's raised?

23 A Yeah. You can see by the way the light is reflecting

24 off of it that it's -- even though I agree you're looking

25 at a two-dimensional picture, one's eye can render a

132

1 three-dimensional interpretation of that. We can see that 2 his thigh there is not flat. We can see that the catheter 3 is closer to us, as it were, than his thigh is. One 4 interprets three-dimensional information based on 5 reflection of light and coloration from that image. 6 Q Is it bigger than a goose egg? 7 A What you can see there is smaller, but this again can 8 be the tip of the iceberg. I don't know how big the 9 hematoma is. It could be larger or smaller than a goose 10 egg. 11 Q Is it smaller than a hen's egg?

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12 A I'm not a farmer.

13 Q Okay. Now, where is the blue you kept talking about?

14 A At the tip of where the white catheter goes in, there

15 is a bluish discoloration, and --

16 Q Where is that?

17 A You see the white -- the white part of the triple

18 lumen catheter, it's got a black piece of plastic on top of

19 it. If you go about the same distance as the length of

20 that black piece of plastic, beyond the end of that black

21 piece of plastic, there is a clear bluish-purple discolored

22 area there.

23 Q Okay. Now --

24

THE COURT: By my count, you should know you have

25 about three minutes left.

133

1

MR. HAWKE: I appreciate that.

2 Q (By Mr. Hawke) Does everybody who receives access

3 through the femoral vein receive -- in a clinical setting,

4 does everybody receive a sedative?

5 A In some cases it's not possible to achieve peripheral

6 access because somebody has bad veins and so you have to go

7 directly to putting in a central line, perhaps a femoral

8 line, without having given them sedation, but it's a very

9 undesirable situation both for the patient and the

10 practitioner. It's far better to give both a sedative and

11 an analgesic, a painkiller, and that's done through an IV

12 line so one can titrate the correct amount to that

13 individual patient.

14 Q And people who receive dialysis, is that done through

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15 the femoral vein? 16 A Usually it's done through a shunt that's usually 17 placed in the arm. 18 Q Before these people receive a shunt, is there access 19 for purpose of dialysis through the femoral vein? 20 A That's one place that can be used. Through the neck 21 or femoral vein. 22 Q And do these people receive sedation before that 23 happens? 24 A In my practice, yes. 25 Q Is that universal?
134

1 A I don't know the full universe of practitioners, but

2 putting in a central line is a nasty and painful procedure

3 and it's appropriate to do one's best to provide sedation

4 and analgesia. Any of us in this room, if we had to have

5 this procedure done to us, would want to have sedation and

6 analgesia provided.

7

MR. HAWKE: If I could have a minute with

8 cocounsel, Your Honor.

9

That concludes. Thank you.

10 REDIRECT EXAMINATION BY MS. ANDERS:

11 Q I just have a couple of questions for you, Dr. Heath.

12

Is it your understanding that when Joe Doe One

13 had difficulty mixing the thiopental, he testified he did

14 not have time to call the manager -- the manufacturer, I'm

15 sorry, and ask them about that?

16 A Yes. I think he referred to it being late at night

17 and they don't have time, yes.

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18 Q Is that something that raises concerns in your mind 19 with respect to his judgment? 20 A Yes. It's not an exigent circumstance where one has 21 to do things at a certain time. One can call the 22 manufacturer. They have 24-hour hot-lines and can connect 23 one to somebody who can provide the necessary information, 24 and I have done that on a number of occasions. 25 Q And have you seen, or is there any evidence or data
135

1 from Missouri executions from which it is possible to

2 conclude or draw inferences that a particular inmate was

3 sufficiently anesthetized?

4 A We have no information whatsoever as it currently

5 stands to know whether or not these individuals were or

6 were not properly anesthetized. We don't have toxicology.

7 They have been paralyzed so we can't tell. We just do not

8 know whether or not they received sufficient or any

9 anesthesia.

10 Q And is execution by lethal injection as currently

11 performed in Missouri a medicalized procedure?

12 A I'm not sure what you mean by the word medicalized,

13 but as it is currently structured if one wanted to be

14 humane, one has to first induce general anesthesia, and

15 that's a medical procedure. And as it's being done now,

16 one is placing a femoral catheter or perhaps a subclavian

17 catheter, and those are medical procedures.

18

The execution itself I think really distills

19 down to the administration of the drug that causes death,

20 the potassium. The other facets are things that are done

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21 to set one up to do the execution. 22 Q And so it's your view that the induction of general 23 anesthesia, whether in an execution setting or any other 24 setting, is a medical procedure? 25 A Yes. Therefore, in that context this is a medicalized
136

1 procedure. It's being done in a way that requires a

2 medical procedure to precede it.

3

MS. ANDERS: Nothing further.

4

MR. HAWKE: Nothing further.

5

THE COURT: Thank you, Doctor.

6

Why don't we take about a 30-minute break and

7 we'll resume. Okay.

8

9

10

11

12

(Lunch recess)

13

14

15

16

17

18

19

20

21

22

23

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24 25
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Page 1 of 116

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

MICHAEL TAYLOR, Plaintiff,
vs. LARRY CRAWFORD, et al.,
Defendant.

) ) ) ) Case No. ) 05-4173-CV-S-FJG ) ) ) JUNE 12, 2006 ) AFTERNOON SESSION

VOLUME II PAGES 137 - 261

TRANSCRIPT OF BENCH TRIAL PROCEEDINGS

BEFORE THE HONORABLE FERNANDO J. GAITAN, JR. U.S. DISTRICT JUDGE

For the Plaintiff: For the Defendants:

MS. GINGER D. ANDERS MR. ERIC BERGER MR. MATTHEW S. HELLMAN Jenner & Block, LLP 601 13th Street NW Washington DC 20005
and MR. JOHN WILLIAM SIMON 2683 South Big Bend Blvd. St. Louis, MO 63143-2100
MR. MICHAEL PRITCHETT MR. STEVEN HAWKE Missouri Attorney General's Office P.O. Box 899 Jefferson City, MO 65102

Donna M. Turner RMR U.S. Court Reporter, Room 7552 Charles Evans Whittaker Courthouse
400 East Ninth Street Kansas City, MO 64106 (816) 512-5641

I N D E X
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JUNE 12, 2006

DR. MARK HEATH

Direct Examination by Ms. Anders

9

Cross-examination by Mr. Hawke

86

Redirect Examination by Ms. Anders

134

DR. STEPHEN JOHNSON

Direct Examination by Mr. Hellman

137

Cross-examination by Mr. Hawke

169

Redirect Examination by Mr. Hellman

185

DR. THOMAS HENTHORN

Direct Examination by Mr. Berger

188

Cross-examination by Mr. Pritchett

232

Redirect Examination by Mr. Berger

253

Recross-examination by Mr. Pritchett

260

JUNE 13, 2006

262

DR. MARK DERSHWITZ

Direct Examination by Mr. Pritchett

262

Cross-examiation by Ms. Anders

301

Redirect Examination by Mr. Pritchett

332

Recross-examination by Mr. Anders

338

TERRY MOORE

Direct Examination by Mr. Pritchett

340

Cross-examination by Mr. Berger

348

LARRY CRAWFORD

Direct Examination by Mr. Pritchett

363

Cross-examination by Mr. Hellman

374

Redirect Examination by Mr. Pritchett

393

EXHIBIT INDEX

PLAINTIFF'S DESCRIPTION

1 - 23 Discovery materials

24

Dr. Heath's CV

26

Print-out of package insert

28

Photo of triple lumen kit

29

Still picture of execution chamber

30

Still picture of execution chamber

RECEIVED 86 10 32 62 74 86

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31

Dr. Johnson's CV

140

32

Diagram of venous system

144

33

Demonstrative IV tubing & syringe kit

166

34

Dr. Henthorn's CV

188

35 & 36 Diagrams of circulatory system

192

39

Figure 1 prepared by Dr. Henthorn

201

40

Figure 2 prepared by Dr. Henthorn

206

41

Affidavit of Dr. Dershitz

209

42

Figure 3 prepared by Dr. Henthorn

210

43

Figure 4 prepared by Dr. Henthorn

214

44

Letter from State

219

45

Figure 5 prepared by Dr. Henthorn

220

46

Figure 6 prepared by Dr. Henthorn

222

47

Videotape of execution chamber

75

DEFT'S

2

Excerpt of Dr. Dershwitz' paper re BIS

277

* * * * * * *

137

1

THE COURT: Ready to go?

2

MR. HELLMAN: Thank you, Your Honor. Before we

3 begin we'd just like to confirm, by our count we have used

4 approximately three hours of time for Dr. Heath's direct

5 cross and redirect. Is that consistent with your

6 accounting, and do we have approximately three hours left?

7

THE COURT: I'd say that's correct.

8

MR. HELLMAN: Thank you, Your Honor.

9

We'd like to call our next witness, Dr. Stephen

10 Johnson.

11 STEPHEN JOHNSON, called as a witness on behalf of the

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12 Plaintiff, being first duly sworn, testified: 13 DIRECT EXAMINATION BY MR. HELLMAN: 14 Q Good afternoon, Mr. Johnson. Would you please state 15 and spell your name for the record? 16 A Stephen Paul Johnson. Stephen, S-t-e-p-h-e-n. Paul, 17 P-a-u-l. Johnson, J-o-h-n-s-o-n. 18 Q And what position do you currently hold? 19 A I'm chief of interventional radiology at the 20 University of Colorado. 21 Q And degrees do you hold? 22 A I hold a bachelor of science and an M.D. 23 Q And what board qualifications do you hold? 24 A I'm a board-certified radiologist and I have a 25 certificate of ABA qualification in interventional
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1 radiology. 2 Q Could you please describe what interventional 3 radiology is? 4 A Interventional radiology is a subspecialty in which we 5 use imaging, ultrasound, CT to perform surgical procedures. 6 Q What types of surgical procedures do you perform? 7 A Actually I personally perform over 150 different types 8 of procedures and the common link is that we use the 9 imaging to accomplish those procedures. 10 Q So then you currently practice medicine? 11 A Yes, sir. 12 Q Where have you practiced medicine? 13 A Well, I trained at Northeastern Iowa College of 14 Medicine and interned at St. Thomas Hospital in Akron,
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15 Ohio. Did my residency at the University of Cincinnati. 16 Did a fellowship training, additional training in 17 interventional radiology at the University of Colorado. I 18 practiced for four years on active duty in the Air Force 19 down in San Antonio at Wilford Hall, and then I've been 20 back at the University of Colorado and at Denver Medical 21 Center as well as Denver Health -- the VA Hospital in 22 Denver ever since. 23 Q In your practice, do you place central lines? 24 A Yes, I do. 25 Q And how long have you been placing central lines?
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1 A Well, I've been placing central lines since I started

2 my training as a radiologist in 1989.

3 Q Do you have a sense of how many central lines you have

4 placed in your career?

5 A Whenever you asked me to review that, we have a

6 database and I think since 1996 or '97 when I came back to

7 Colorado I've placed over 1800 central lines.

8 Q And how many of those placements were through femoral

9 catheterization?

10 A The majority that I place are through the jugular or

11 the subclavian, but a couple hundred femoral catheters.

12 Q Is that a large number for someone with your age and

13 experience?

14 A Yes, absolutely.

15

MR. HELLMAN: At this time I'd like the record

16 to reflect I'm holding Plaintiff's Exhibit No. 31, which is

17 Dr. Johnson's curriculum vitae. I'm showing that to

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18 opposing counsel. I'm just going to bring this to the 19 witness, if that's all right. 20 Q (By Mr. Hellman) Dr. Johnson, do you know what this 21 document is? 22 A Yes, I do. 23 Q And what is it? 24 A This is my CV. 25 Q Did you prepare it?
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1 A Yes.

2 Q Is it an accurate statement of your accomplishments

3 and degrees?

4 A I believe so.

5

MR. HELLMAN: I'd like to move Plaintiff's

6 Exhibit No. 31 into evidence.

7

MR. HAWKE: No objection.

8

THE COURT: Be received.

9 Q (By Mr. Hellman) Have you given testimony in a legal

10 proceeding before?

11 A One other time.

12 Q Did that case involve lethal injection?

13 A No, it did not.

14 Q What documents have you reviewed to prepare for

15 today's testimony?

16 A I primarily reviewed John Doe One or the physician's

17 deposition, and I did a review of the literature on central

18 line placement, and then I looked at my own database of

19 cases as well.

20 Q Did you review materials obtained in discovery besides

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21 John Doe One's deposition, including photographs of 22 execution marks? 23 A Yes, I did as well. 24 Q And are you familiar with the manner in which Missouri 25 places femoral lines for executions?
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1 A Yes, I am.

2

MR. HELLMAN: At this time plaintiff would like

3 to tender Dr. Johnson as an expert witness on the subject

4 of central line placement, and femoral line placement in

5 particular.

6

MR. HAWKE: No objection.

7 Q (By Mr. Hellman) I'd like to ask you now if you

8 reached any conclusions upon your review, and what those

9 conclusions are.

10

First, have you reached any conclusion with

11 respect to whether it's necessary for Missouri to use a

12 femoral line to conduct executions?

13 A Yes, I have.

14 Q And what is that conclusion?

15 A The routine use of central lines for administering

16 medication for lethal injection in my opinion is in a large

17 majority of cases completely unnecessary.

18 Q Second, have you reached any conclusion about whether

19 Missouri's use of a femoral line creates a significant

20 likelihood that the inmate will experience painful

21 complications?

22 A Yes, I have.

23 Q And what is that conclusion?

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24 A The decision to place a central line from a femoral 25 approach in my opinion increases significantly the chances
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1 of pain and complications as opposed to peripheral IV 2 access. 3 Q So then, third, I take it then you have reached a 4 conclusion whether the risk of painful complications would 5 be reduced if Missouri were to use peripheral access to 6 administer its lethal injection drugs? 7 A Yes, that is my opinion. 8 Q That it would reduce it significantly, the risk of 9 complications? 10 A That peripheral IV access has a lot less complications 11 and pain associated with it. 12 Q To what degree of medical certainty do you hold these 13 conclusions? 14 A A high degree of certainty. 15 Q Why did you choose to testify in this case? 16 A Well, I'm asked to look, because of my position, at a 17 number of legal cases. When I looked at this, I just found 18 it completely unnecessary, in my opinion, to go straight to 19 placement of a central line for all executions, if a 20 peripheral IV is obtainable. I just find it to be an 21 unnecessary risk and unnecessarily painful. 22 Q And may I ask what do you think of the death penalty 23 in general? 24 A I'm not categorically against the death penalty. I 25 think that -- and actually I see a lot of trauma. I see a
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1 lot of violence in my profession. I'm basically on staff

2 at a trauma hospital, the county hospital there in Denver,

3 and I actually worked on a number of the Columbine kids

4 that day. In my opinion, the death penalty should be

5 reserved for the most heinous crimes in this society, and

6 so I'm not categorically against it.

7

I have some concerns about socioeconomic status

8 and race and how it's distributed, and also have some

9 concerns that I know that there have been people on death

10 row that have been completely exonerated by later

11 evidence. So I think personally it should be used in very

12 limited circumstances, but I'm comfortable with it.

13 Q All right, Doctor. Thank you.

14

Now I'd like to talk a little bit about some of

15 the basics of femoral line insertion.

16

MR. HELLMAN: I'd like the record to show that I

17 am holding what's marked as Plaintiff's Exhibit No. 32,

18 which is a diagram of the venous system of the human body.

19 I'm now showing that to counsel for the state.

20

MR. HAWKE: Do you have a copy for the state?

21

MR. HELLMAN: Yes, I do. Actually if counsel

22 doesn't mind, I'm going to put it up on the screen.

23

MR. HAWKE: So at the back end of the trial we'll

24 get copies of things we have seen?

25

MR. HELLMAN: Absolutely.

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1 Q (By Mr. Hellman) Doctor, is this diagram familiar to 2 you?

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3 A Yes. This is a drawing, anatomic -- standard anatomic

4 drawing by Dr. Netter.

5 Q Are drawings by Dr. Netter relied on by experts in

6 your field?

7 A Yes, they are.

8 Q And do you believe this drawing is accurate?

9 A Yes.

10

MR. HELLMAN: I'd like to move it into evidence

11 as Plaintiff's Exhibit No. 32.

12

MR. HAWKE: No objection.

13

THE COURT: Be received.

14 Q (By Mr. Hellman) Doctor, could you point to where the

15 femoral vein is on this diagram using the electronic system

16 we have here?

17 A The femoral vein is located in the groin, as indicated

18 in the drawing.

19 Q And is that where the femoral vein is accessed if a

20 femoral vein catheterization is used?

21 A Yes, it is.

22 Q Based on your review of the documents in this case,

23 can you give us an overview of how Missouri performs

24 femoral access?

25 A Yes. John Doe's deposition indicates that he does a

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1 femoral access basically with a blind technique using a 2 Seldinger needle. In layman's terms what that means is you 3 essentially do a surgical prep of the area. You've got to 4 prep your central line kit which all takes time of course. 5 He provides local anesthesia and then he places his fingers

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6 over the femoral, or what he determines should be the

7 location of the femoral artery. Of course the femoral

8 artery is pulsing so you're feeling pulsations on the

9 surface of the skin.

10

The femoral artery, nerve and vein lie deep to

11 the skin, several centimeters. And that varies obviously

12 depending on how obese the patient is. If you have an

13 obese inmate or patient, then it can be a number of

14 centimeters below the skin.

15

Then what you do with the Seldinger needle, you

16 feel the artery and then you aim medial to the artery, to

17 the location where you think the vein is, and you basically

18 put the needle down until you hit bone, pull the stylet

19 out. Then you hook the needle to a syringe and aspirate as

20 you are withdrawing the needle and then you get a flash of

21 blood. You can get a flash of blood if you're in the

22 artery. You can get a flash of blood if you're in the

23 vein. Obviously the artery is usually going to be brighter

24 and pulsatile and the vein is usually going to be darker

25 and non-pulsatile. If you don't hit the vein, then

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1 basically you redirect the needle, repeat the steps until 2 you get access into the vein. Then -3 Q I'm sorry -4 A I'll just finish it up. Then once you get blood 5 return through the needle, which is usually an .18 or 6 .19 gauge needle, you advance the guidewire through the 7 center or the lumen of the needle. That wire goes up into 8 the vein and then you pull the needle out and then you

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9 advance the catheter over that wire and pull the wire out 10 for your access. 11 Q Is this procedure typically used to administer drugs 12 in medical practice? 13 A No, it's not typical. 14 Q Is the femoral vein typically used to administer 15 anesthetics? 16 A No, it's not. 17 Q And why is that? 18 A Well, there are a lot of other more readily 19 accessible, less risky alternatives. I predominantly 20 prefer a peripheral IV. That's the way we standardly 21 administer medications in anesthesia. And actually the 22 femoral vein for administering medications is usually 23 reserved for emergency situations, patients who, you know, 24 are having cardiopulmonary arrest. And you're basically 25 aiming at a large, deep structure, but, you know, it's not
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1 typically used for standard IV access. 2 Q What risks are associated with femoral vein access? 3 A Well, there are a number of additional risks as 4 opposed to peripheral IV access. One, you can hit the 5 artery. The artery and the vein lie immediately adjacent 6 to each other. You're basically using the pulsation you're 7 feeling on the skin to get the general location, but the 8 reality of it is you not infrequently hit the femoral 9 artery if you're blindly trying to get access to the 10 femoral vein. If you look at the literature, that's up to 11 17 percent of the cases.
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12

With the Seldinger needle or the Seldinger

13 technique that he's using, you're actually doing

14 through-and-through puncture of the vessels. You're

15 putting two holes into the vessel. If you hit the artery,

16 you've created two holes. So bleeding occurs every time

17 you put a puncture into the artery.

18

It hurts. The Seldinger technique is designed so

19 you put the needle down until you hit the bone. And any

20 time you hit the bone with a needle, if you have ever had

21 your tooth numbed up when they go in with the anesthetic

22 needle and hit the bone, it hurts. So that's additional

23 pain, in my opinion, that's totally unnecessary.

24

The femoral nerve lies immediately adjacent to

25 the vein so they run basically in a sheath together and

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1 when you hit the femoral nerve, which also occurs a

2 significant percentage of time, then you usually feel very

3 bad about it, because what happens is it's like sciatica,

4 instantaneously you get a jolt of basically pain down your

5 leg.

6

Then there is the additional complication, one of

7 the reasons we don't use femoral access routinely, it's

8 right next to the scrotum. There is chance of

9 contamination, chance of infection. And then any time you

10 put a central line in the vein there is a chance of getting

11 a blood clot and that's a longer-term complication of

12 getting a deep vein thrombosis, but that's an additional

13 complication.

14 Q So, Doctor, putting all of these risks together

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15 collectively, could you give a range or an assessment of 16 what the likelihood is that a complication would occur 17 under clinical settings? 18 A It again does depend on the patient's body habits, how 19 fat they are basically, and the experience, but 10 to 15 or 20 10 to 20 percent of the time, collectively, this total 21 complication rate can occur. 22 Q You mentioned a puncturing of the artery. I'd just 23 like to get a sense of how painful that is. Sometimes 24 people talk about a scale of pain from one to ten where one 25 is a trivial pain and ten is excruciating pain. Could you
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1 give a number associated with arterial puncture? 2 A Well, it's not the puncture of the artery that's 3 painful, but it's the bleeding that occurs. And depending 4 on the amount of bleeding, it can be quite painful. The 5 reality of it is when you hit the artery you immediately 6 pull the needle out and you hold pressure on the artery. I 7 mean, that's how you get bleeding stopped. And you usually 8 have got to compress on somebody's groin for 15 minutes, 9 that's standard. Usually we're administering some sedative 10 at that point and some analgesic, because it hurts. On a 11 scale, I'd say six to eight. 12 Q Six to eight out of a scale of one to ten for pain? 13 A Yes. 14 Q And about how quickly will the pain result with the 15 bleeding, is a long-term onset or is it quick? 16 A Well, the pain is going to happen immediately. The 17 bleeding happens immediately. You're pushing on the groin
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18 and trying to control the bleeding, so it's an immediate 19 effect, yes. 20 Q Are there factors that would increase the likelihood 21 of a puncture with a patient? 22 A Well, I mentioned earlier how large the patient was. 23 That's one. The deeper the vessel, the more difficult it 24 is to accurately locate it by just palpating. Two, high 25 blood pressure. If you hit the artery and somebody has
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1 high blood pressure, then obviously you're going to get an

2 increased rate of bleeding. A lot of people who are either

3 going to go into a surgical procedure or obviously if

4 they're going to be executed, their blood pressure is going

5 to be up.

6

If you are resisting, you know, or if the patient

7 is uncooperative, you know, intoxicated patients, trauma,

8 whatever, in this particular type situation if the inmate

9 resisted at all, and I think it is very hard to immobilize

10 somebody, particularly if you're talking about the core

11 body muscles, that increases your likelihood you're going

12 to hit the artery.

13 Q Do you administer a sedative to your patients before

14 giving femoral catheterization?

15 A As -- I agree with Dr. Heath, yes. Typically we do,

16 unless we don't have a peripheral IV.

17 Q Is the medical standard of care to administer a

18 sedative whenever possible?

19 A I think that -- it's accurate to say that would be the

20 medical standard of care at this point, yes.

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21 Q Do you use any additional technology to help you find 22 the femoral vein and avoid hitting the femoral artery in 23 your practice? 24 A One of the reasons interventional radiologists are 25 putting these lines in now is because we're using the
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1 imaging to increase the accuracy and the safety of these

2 procedures. We usually put an ultrasound device on the

3 groin. You can directly visualize the artery and the vein,

4 and you can watch the needle go into the vein in the large

5 majority of cases, which decreases the overall incidence of

6 hitting the artery, which is a big complication.

7

Two, we use the X-ray to watch the guidewire go

8 up into the correct vein, because there are branch vessels

9 coming off the iliac system, so you want to be sure the

10 guidewire is going into the correct location and you

11 advance the catheter and confirm the catheter position.

12 Q Does Missouri use this technology in conducting its

13 executions?

14 A No, it does not.

15 Q Does Missouri give its inmates a sedative before all

16 executions?

17 A I don't know about all executions. The five ones that

18 I was available to review, they did not, no.

19 Q Doctor, I want to cover briefly, just so we understand

20 it, could you give in your own words exactly what a

21 hematoma is.

22 A Well, a hematoma is essentially bleeding. It's

23 localized bleeding. And any time that you -- even hitting

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24 the vein, although the vein is not under the pressure that 25 the artery is, you get bleeding. When the bleeding occurs
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1 in a contained space, that's called a hematoma.

2 Q Doctor, I'd like to now read you a bit of testimony

3 given by John Doe One in his deposition on page 77 of that

4 deposition regarding bleeding and hematomas. The question

5 presented to the doctor was, "So just hypothetically, if

6 you were attempting to insert a femoral catheter on anyone

7 and they moved and you ended up lacerating the femoral

8 artery, what would you do about that? Answer. It would

9 never happen."

10

What do you think of John Doe One's response?

11 A Well, I think he's incorrect. Number one, I think the

12 literature, it's not just my experience, but the literature

13 supports the fact that you do have complications hitting

14 the artery and getting bleeding occurs. And so

15 categorically to say it doesn't I think is incorrect.

16 Q Have you reviewed the photographs of the execution

17 logs that you were provided with in this case?

18 A Yes, sir.

19 Q Have you reviewed the photographs of the Timothy

20 Johnston execution?

21 A Yes, I have.

22 Q I'd like to now go back to what was part of

23 Plaintiff's Exhibit 18, which is one of two photos from

24 that execution. I'm going to put it up on the screen so

25 everyone can see it.

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1

Doctor, can you describe what you see here?

2 A Yeah. The first thing that is obvious is the amount

3 of blood in the field, and the blood that's in the field is

4 bright red, which indicates to me that it's oxygenated.

5 Obviously everybody has seen or had a peripheral IV put in.

6 You don't get this kind of blood-letting during the

7 insertion of a peripheral IV. And the fact that it's

8 oxygenated, and the degree of it, would indicate to me that

9 the artery was hit in this particular case.

10

If you look at the catheter, look at the blood

11 within the catheter, it's a significantly darker color,

12 non-oxygenated blood, so that would indicate to me that

13 that's venous blood.

14

And then around the site, as Dr. Heath pointed

15 out, and I agree with him, there's swelling, significant

16 swelling right in this location (indicating.) That

17 indicates to me that there's hematoma present.

18 Q And just so that everything is clear, I'd like to also

19 show you the same picture that Dr. Heath was looking at as

20 well. It's from the same site, the same exhibit.

21 A This is a different angle of the same patient, or same

22 execution, pardon me. And again, just so that there's --

23 again, there's a lot of blood in the field. It looks like

24 oxygenated blood indicating that this was arterial blood.

25 And then there's swelling around the catheter that

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1 indicates a hematoma. 2 Q And just to give you a chance to comment, I'd like to

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3 read what Dr. Doe said in response to the question about

4 whether or not there was a hematoma here. The question

5 was, and this is on page 102 of his deposition, which I

6 believe is a question from his own counsel: "What would

7 you see or what would you expect to see if there was a

8 hematoma? How can you say there's not one here? Answer:

9 What they're seeing is the site where I injected by local

10 anesthesia. It causes a little blue mark. A hematoma

11 would be the size of a tennis ball."

12

Can you please comment on Dr. Doe's explanation.

13 A Yeah, to me that doesn't make sense because the

14 lidocaine that you inject is clear, number one. Number

15 two, the amount of lidocaine that comes off these central

16 lines kits is a small volume, anywhere from five to ten

17 cc's. Here you're seeing a lump basically that is

18 distending the skin, and you don't see that with your

19 normal lidocaine administration. And the blue coloration

20 indicates to me that that's blood, not lidocaine. So I

21 would disagree with his assessment of that.

22 Q I want to talk a little bit more now about what

23 happens if a bleeding or a hematoma would develop. I

24 believe you were here when you heard the colloquy between

25 state's counsel and Dr. Heath about whether or not a

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1 hematoma and bleeding were treatable. If a doctor 2 punctures the artery, you have said it will bleed. How 3 does one stop the bleeding? 4 A The standard technique is you hold manual compression, 5 significant manual compression, because what you're trying

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6 to do is create more pressure outside that artery than is

7 from within the artery. That will control the bleeding.

8 Then you have to allow the body's coagulation system to

9 form a blood clot in the hole, and that takes time.

10

So the standard way of dealing with this, which

11 by the way is not 100 percent successful, is essentially

12 really to squish on the groin, hold pressure for 15, 20

13 minutes, and then restart your procedure.

14 Q Did you say 15 to 20 minutes? I'm sorry, I

15 couldn't --

16 A Yes, 15 to 20 minutes.

17 Q I'm going to read you now John Doe One's explanation

18 as to what he would proceed to do if a hematoma developed.

19 This is on page 78 of his deposition transcript and it's a

20 couple paragraphs long so please bear with me, and stop me

21 if you'd like to comment.

22

"Question: And just assuming for a second that a

23 hematoma developed, what would you do about that? Answer:

24 Reach over on the tray, take the knife that's provided with

25 the tray, open it and vent it and it would be controlled.

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1 Actually under this setting, the hematoma would actually 2 stop bleeding better than actually -- the medical treatment 3 would be to drain it, but in this setting the hematoma is 4 actually useful and it will stop the bleeding in a matter 5 of seconds by itself. So there's a medical reason why you 6 drain a hematoma, but the reason in this situation was the 7 hematoma would actually stop the bleeding. But we have 8 never and could not possibly see a hematoma in this setting

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9 because of the small needles used. Question: So when you

10 say the hematoma would stop the bleeding, I really don't

11 follow that. Answer: As it bleeds into the space, it

12 increases the pressure around the vessel. The pressure of

13 the hematoma is going to stop the bleeding no matter where

14 the bleeding is."

15

I'll stop right there for the moment. First,

16 Doctor, is it proper procedure to open and vent a hematoma?

17 A No. No. I mean, you would not make an incision in

18 the skin and allow the bleeding just to basically well up

19 in front of you. That would be a totally inappropriate way

20 to deal with a hematoma.

21 Q And then I'm going to continue reading. The question

22 that follows immediately the passage that I just read says,

23 "Question: So the bleeding would stop on its own? Answer:

24 It would stop on its own."

25

Now, would the bleeding stop on its own if a

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1 hematoma developed? 2 A Highly unlikely. That would be a very painful way of 3 dealing with that particular problem, because essentially 4 you'd allow blood just to accumulate in the leg, dissect up 5 into the abdomen, and then what's he's basically indicating 6 he's allowing enough bleeding to create pressure in the 7 groin and that pressure which basically is what I described 8 as the physician usually applies, would -- that would be a 9 lot of blood in the groin. That would be an extremely 10 painful way of dealing with that particular issue. And 11 that is not how you deal with it. You don't sit there and

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12 watch a hematoma expand and expand, generate enough 13 pressure. 14 Q Would it eventually -15 A I mean, you could bleed to death that way, yeah, but 16 that would be a very painful way to go. 17 Q If the artery were punctured, could that femoral line 18 still be used? 19 A Well, now it makes it harder because the artery has 20 got a lot of muscle in it and it's hard to compress an 21 artery. The vein has a muscular wall, but it's a lot 22 thinner so it's easy to compress a vein. And it's not 23 under pressure. So as soon as you start having a hematoma 24 develop in the groin, it squishes on the vein and it makes 25 it a lot more difficult to get your femoral line in. So
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1 it's possible, but it becomes a lot tougher. 2 Q If the doctor were to use another site, say the other 3 leg, would the inmate experience pain while another site 4 was found? 5 A If there's continued bleeding, absolutely. I mean, if 6 your method of dealing with it is just to let it bleed out 7 and go to the other leg, yeah, absolutely. 8 Q I just want to read you again for your comment a 9 passage continuing on page 78 where I left off. "If that 10 happened" -- this is the question: "If that happened while 11 you were trying to get the catheter in for an execution, 12 how would you then get the catheter in? Answer: He's got 13 two legs. Question: So you'd go to the other leg? 14 Answer: Yes."
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15

What do you take to mean by the two legs comment?

16 A Well, basically what I -- I take it as if they botched

17 up the first line attempt on the one leg, that they abandon

18 it and go to the other leg. But the statement seems a bit

19 crass to me, a bit unprofessional.

20 Q I'd like to talk now about a couple of the other

21 risks of femoral access. You described hitting the bone.

22 How often does that happen?

23 A Well, if it's the Seldinger technique, that's part of

24 the procedure because the femoral head lies just behind the

25 artery and the vein and you can use the Seldinger technique

159

1 to get into either one. But essentially what you do is you 2 do a through-and-through puncture of the artery or the vein 3 and then when you hit the bone you stop and pull the stylet 4 out and then slowly retract the needle until you get blood 5 return. 6 Q So this happens every time under the Seldinger 7 technique? 8 A Yes. You can do a single-wall technique where you 9 just try to puncture through the front side and that's 10 usually what I use when I'm using image guidance. But the 11 Seldinger technique is designed to hit the bone. 12 Q And how painful, on a scale of one to ten in the way 13 that we described, is hitting the bone would you say? 14 A Well, it hurts. It hurts. I would say again in the 15 six to eight range, and this is part of the reason you give 16 some sedation before you do the central line. 17 Q Would a local anesthetic be sufficient to eliminate

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18 that pain? 19 A Well, again, you've got to hit the bone to put the 20 anesthesia in so you can get deep anesthesia down on the 21 surface of the bone, but really when you hit the bone for 22 the first time, again I'll use that analogy of your tooth, 23 when the needle hits the bone you feel that and it's a 24 pretty intense pain. 25 Q And is this a pain that becomes painful immediately?
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1 A Oh, yeah. It's instantaneous. 2 Q And you mentioned another risk in terms of hitting the 3 femoral nerve. Could you describe what happens when that 4 complication occurs? 5 A Well, again, when you hit the nerve it's very 6 instantaneous. I mean, there's no mistaking it because 7 your patient will let you know immediately, because, one, 8 involuntarily they -- their leg jerks and they get a 9 shooting sensation down their leg. 10 Q And on a scale of one to ten, just so we have a rough 11 measure of comparison, how painful is that? 12 A That's like having very intense sciatica. I would 13 bump that up to the seven to eight range. It's a pretty 14 painful thing. 15 Q The complications we've talked about, are they the 16 type of thing that can be eliminated with practice? 17 A They cannot be completely eliminated, particularly if 18 you're doing all this blindly. Experience matters, there's 19 no denying that, but complications occur. There's just -20 I mean, that's a fact of medical practice.
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21 Q I want to read you another passage from Dr. Doe's 22 deposition, from page 89 of that deposition. The question 23 was: "So are there any complications that could make 24 themselves -- that could become visible after you have left 25 the execution chamber?" The answer is: "No.
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1 Complications can occur months and weeks later due to

2 long-standing problem, but the complications that you are

3 referring to that occur with the insertion, these only

4 occur on a person that is doing his first five insertions.

5 After someone has done ten of anything he'll never have

6 another complication for the rest of his life."

7

Do you agree with that statement?

8 A I categorically disagree with that statement.

9 Q In reading that, is it your opinion that Defendant

10 Doe One understands the risks of the procedure that he is

11 performing?

12 A No, I don't think he does. If he's making a blanket

13 statement like that, that sounds like denial to me.

14 Q Do you think his apprehension, or misapprehension if

15 that's the word you would use, of those risks would affect

16 his ability to properly perform and treat femoral

17 catheterization and any complications that ensued?

18 A I think that, number one, if he assumes he cannot have

19 a complication, then he's probably not even, first of all,

20 looking for that complication. And his description on how

21 he would address those complications is incorrect as well,

22 in my opinion.

23 Q Now, I'd like to turn to your thoughts on femoral

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24 access vs. peripheral access specifically. I know we have 25 talked a little bit about it, but now I'd like to get to
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1 some specific questions. Could Missouri's drugs that they

2 use currently in their execution process be administered

3 through the peripheral veins?

4 A Yes.

5 Q With peripheral access, is the risk of painful

6 complications reduced?

7 A Very significantly.

8 Q How would peripheral access work?

9 A Peripheral access is basically placing the standard

10 IV. Your choices are in the top of your hand, in your

11 wrist. There are two large veins that are in your

12 antecubital fossa. You put a tourniquet on, put a little

13 bit of alcohol on the skin. You advance essentially a

14 standard IV. When you see a flash of blood, you advance

15 the plastic tubing into the vein. Hook it up to the IV.

16 One of the very first things you do is you hook that to an

17 IV bag. One indication that it's working is you see the

18 dripping of the IV fluid which indicates there's no

19 obstruction.

20

Two, it's very standard to flush the IV. You

21 flush it, manually observe it. No swelling, no

22 resistance. Perfectly good intravenous access.

23 Q Would you say peripheral access is less invasive?

24 A By far. Way less invasive.

25 Q Could a hematoma result from peripheral access?

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1 A The vein is running right beneath the skin. Most of 2 the hematomas that we're talking about happen when you hit 3 the artery. So a significant hematoma from a peripheral 4 IV, you might get a little bruise, but no is my answer. 5 Q Is it possible to hit a nerve with peripheral access? 6 A Very, very unlikely because these are superficial 7 veins. They're not deep veins, okay. And the deep vein 8 and artery and nerve run together. So with peripheral 9 access you're placing the IV in a vein that essentially is 10 running right beneath the skin. 11 Q Is it possible to hit the bone with peripheral access? 12 A Highly unlikely. 13 Q And are IVs, in general, administered peripherally in 14 medical practice? 15 A Absolutely. Routinely. 16 Q Are you aware of any indications in this case that 17 would make femoral access appropriate? 18 A The only indication, in my opinion, here that they 19 would choose to use a central access like femoral access is 20 they could not establish peripheral IV. 21 Q Do you have any reason to believe that that would not 22 be possible in this case? 23 A I'm not aware in this case that this patient is a 24 chronic IV drug abuser which would probably be the primary 25 indication in an inmate.
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1 Q I want to read you a few statements that John Doe One 2 has made with respect to peripheral access as compared to
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3 femoral access and get your thoughts.

4 A Okay.

5 Q Question on page 86 of the Doe deposition: "And if a

6 complication occurred using femoral access for an

7 execution, would you consider changing back to peripheral

8 access? Answer: No. Question: Why not? Answer: It

9 isn't reliable or predictable or safe."

10

Do you believe that's an accurate statement of

11 the relative benefits and disadvantages of peripheral as

12 compared to femoral access?

13 A That's an incorrect statement. And do you want me to

14 elaborate? I mean, during my review of his deposition they

15 even admitted that they tried a femoral access in one

16 inmate and couldn't get it in because the vein was probably

17 thrombosed. So, one, I think probably one of their

18 reasons, and he may have mentioned this in his deposition,

19 is to avoid any type publicity problems and having to go

20 explain to the press why they struggled with the IV access.

21 You can struggle with central venous access. One.

22

Two, if you follow standard procedures, placing

23 an IV, checking it, flushing it, it is very reliable, very

24 safe, and you can rapidly administer medications through

25 it. As a matter of fact, every day in CAT scan, CT scan,

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1 you get a peripheral IV in and you can inject three to five 2 cc's a second for a total of 150 cc's. That's a big bolus 3 of contrast which can be a desiccant or basically can cause 4 sloughing of the skin. But that rarely, rarely happens 5 because they do standard techniques, put the IV in, check

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6 to make sure it's an adequate IV. So I just disagree with

7 that statement.

8 Q In his deposition the doctor suggested that femoral

9 access would yield quicker administration of the drugs. Do

10 you believe that to be correct?

11 A Not how they're currently doing it. It makes sense

12 the larger caliber a tube, the faster a fluid can go

13 through it, but they have elected to connect either, well,

14 the central line here to eight feet of tubing. And by

15 doing that, they admit that what they next have to do -- to

16 fill up eight feet of tubing, that requires 10 or 15 cc's

17 of your injection, and then you've got to follow it with a

18 flush.

19

Even given all that, with the exhibit there I'd

20 like to show the court you can very rapidly administer

21 40 cc's through a peripheral IV.

22

MR. HELLMAN: At this time I'd like to offer

23 into evidence Plaintiff's Exhibit No. 33 which is a

24 60 cc syringe and eight feet of IV tubing. I'm now showing

25 that to state counsel.

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1

And now with the court's permission I'm going

2 to present it to the witness who will use it as a

3 demonstrative aid.

4

THE COURT: No objection?

5

MR. HAWKE: No objection.

6

THE WITNESS: So this is a standard peripheral

7 IV. That's the size of an IV that's placed in the arm,

8 typically. The rate of injection also depends on the size

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9 of the syringe. If you used a five or ten cc syringe you

10 can create a lot more pressure than a 60 cc syringe. They

11 have done this to simplify their procedure.

12

And, Your Honor, I don't know if you have a

13 secondhand on your watch, but I just want to show -- this

14 is 40 cc's which is what the standard volume that they were

15 injecting. And if we take a peak at the clock, I'll just

16 show you that basically you can inject this within 30

17 seconds.

18

(Witness demonstrates.)

19

So even power injecting a peripheral IV, if it's

20 working, is completely adequate for -- for what they say

21 they need to accomplish, which is very rapid injection.

22

MR. HELLMAN: Thank you, Doctor.

23

Plaintiff would like to move this equipment,

24 Plaintiff's Exhibit No. 33, to be put into evidence.

25

THE COURT: I think we did that earlier.

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1

MR. HELLMAN: I wanted to be sure that happened.

2

MR. HAWKE: No objection.

3

MR. HELLMAN: Very good.

4 Q (By Mr. Hellman) I just want to read you one more

5 statement from Defendant Doe One regarding the relative

6 virtues of femoral and peripheral access. Actually, I take

7 that back. It's the next to the last statement I'm going

8 to read. The next to the last statement is this, and I

9 believe it comes from pages 87 and 88 of the Doe

10 deposition. "Question: I see. And when you said that the

11 femoral procedure is safe, what did you mean? Answer: No

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12 complications. I can't puncture a lung. Can't hit the

13 wrong thing. The vein is protected by muscle on one side

14 and the artery, which I can feel with my finger. So if I

15 can feel the artery with my finger and my finger is on top

16 of the artery, I'm not going to stick my finger. And the

17 nerve is on the other side of all of this, so nerve and

18 artery lacerations are impossible."

19

Again, I'd just like to get your comment in light

20 of what you reviewed in this case.

21 A Well, I think I illustrated for the court how that can

22 and does occur, and it certainly -- the literature shows

23 that as well. It's just not my opinion. You do in fact

24 hit the artery and nerve, and not insignificantly when

25 you're doing it blindly as they're doing here.

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1 Q And then the last statement I'd like to draw the

2 witness's attention to is on page 83 of that deposition.

3 "Question: And in making your recommendation, did you

4 consider the risks and benefits of femoral

5 catheterization? Answer: Yes. Question: And what risks

6 and benefits did you consider? Answer: No risk. All

7 benefit. Question: And what are the benefits? Answer:

8 All benefits. There's no way it can fail and no risk to

9 the inmate. Question. So there's no risk of

10 complication? Answer: Really, no."

11

Do these statements strike you as someone with

12 sound medical judgment when it comes to femoral line

13 catheterization?

14 A It sounds like statements from somebody who doesn't

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15 understand the risks of this procedure. I think I have

16 illustrated, hopefully, for the court that it hurts. It's

17 significantly more invasive, and it involves risks that are

18 basically avoidable by putting a peripheral IV in.

19 Q And if I told that you Missouri was the only state in

20 the union to use femoral access, what would your response

21 be?

22 A My response would be that that -- they're in agreement

23 with me, that in the large, large majority of cases this is

24 totally unnecessary and avoidable.

25

MR. HELLMAN: Thank you, Doctor. No further

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1 questions at this time.

2 CROSS-EXAMINATION BY MR. HAWKE:

3 Q My name is Stephen Hawke. I'm an assistant attorney

4 general with the state of Missouri, and I have a few

5 questions I will need to ask you for cross-examination this

6 afternoon.

7

The demonstration you did a couple minutes ago,

8 that represented the injection through -- into a peripheral

9 port; is that correct?

10 A That was a peripheral IV.

11 Q Peripheral IV. And during your demonstration, you did

12 not make a comparison of a peripheral IV vs. a femoral IV,

13 did you?

14 A I did not.

15 Q Okay. And during the demonstration, you were -- I

16 assume the liquid in the vial was water; is that correct?

17 A That's correct.

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18 Q And the receptacle of the water leaving the syringe

19 was a plastic bag; is that correct?

20 A That's correct.

21 Q I just want to make sure the record reflects that.

22

Now, are you familiar with the execution

23 practices of other states?

24 A No, I'm not.

25 Q So you have no knowledge --

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1 A I have no knowledge. 2 Q Okay. So you don't know if Missouri is the only state 3 that uses a femoral vein access? 4 A No, no, sir. 5 Q Just don't know. Okay. Now, during the -- during the 6 initial discussions you stated that you had been placing 7 central lines since 1989; is that correct? 8 A That's correct. 9 Q And during your practice, your radiology practice, 10 that is primarily the insertion of central lines in the 11 arteries; isn't that correct? 12 A No, that's incorrect. I place probably 80 percent of 13 the venous catheters for the hospital. Myself and my two 14 colleagues. 15 Q Okay. So you are a vein person, a person that uses a 16 vein? 17 A We use both, depending on the procedure. We place 18 central lines primarily for chemotherapy. We place central 19 lines when you require long-term access and they're going 20 to come back and have multiple injections, and we place

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21 them for pretty much all the dialysis patients. 22 Q Dialysis patients. When a person receives a central 23 line access for dialysis, does that person receive 24 sedation? 25 A Yes, in my practice.
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1 Q And is that standard in your community? 2 A Yes, it is. 3 Q Now, you stated that when you use a -- or when you use 4 the femoral access, that there is a risk of hitting the 5 artery; is that correct? 6 A Yes, sir. 7 Q And from your experience, what percentage of the time 8 does that happen? 9 A Well, depends on the technique, okay. If you use 10 image guidance like I described, you still can hit the 11 artery probably one to two percent of the time. If you are 12 blindly sticking the artery -- or blindly sticking the vein 13 without any guidance, then that incidence has been shown to 14 be up to 17 percent of the cases. 15 Q 17 percent of the cases. And that is based on the 16 study in France back the end of 1990? 17 A I've seen I think several articles basically 18 documenting the risks of femoral venous line placement, 19 that's correct. 20 Q And I believe that 17 percent included all risk of 21 complications, not just hitting the artery. 22 A Well, we'd have -- I'd have to relook at that document 23 to accurately state that.
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24 Q Do you have that with you? 25 A I don't know. I don't have it with me, no. The
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1 incidence of bleeding I believe, at least in one of the 2 documents I submitted, was ten percent, significant 3 bleeding, hematoma formation. Inadvertent femoral artery 4 puncture I think was actually 17 percent. 5 Q And that study from France involved critically ill 6 people, did it not? 7 A That particular one did, yes. 8 Q And in fact, all of these studies involve people who 9 are in need of this for some clinical purpose. 10 A Usually because there is no peripheral femoral access, 11 or the patient, yes, is in an emergent type of situation 12 which is the only real reason to put it in. 13 Q So those people who are ill are not really comparable 14 with a person who is condemned to death, are they? 15 A I'd say anatomically, yes, they're very comparable. 16 They're -17 Q But the circumstances under which the procedure is 18 administered is certainly different. 19 A I would say yes, I would agree with that statement. 20 Q Now, during direct examination you were shown, or you 21 showed us the diagram by Dr. Nets, or Netzi? 22 A Netter. 23 Q Neter. And the picture that it showed of the femoral 24 vein, at least to my eye, it appeared substantially larger 25 than the other veins around it, did it not?
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1 A It is the largest vein in that particular anatomic

2 region, yes.

3 Q Is it -- it's bigger than a straw of spaghetti; is

4 that correct?

5 A Yes.

6 Q And is it bigger than a person's little finger?

7 A I would say in general that's probably pretty

8 accurate.

9 Q Okay. Is there another anatomical landmark that you

10 can compare it to, to say it's the exact same size as --

11 A It depends on the patient. You know, a small, five

12 foot two female, it's going to be significantly smaller

13 than that. A 300-pound male, it would be a little bit

14 bigger than that.

15

One thing I didn't talk about, it depends on

16 where you access it as far as your degree of actually

17 hitting the artery as well. If you access it a little bit

18 lower -- the artery splits into two arteries and the one

19 artery goes directly in front of the vein, and without any

20 imaging, you know, you don't know exactly where you're

21 entering or trying to enter that vein. So that's another

22 anatomic description that I didn't bring up earlier.

23 Q And I recall you discussing during direct examination

24 that the artery does have a pulse to it; is that correct?

25 A Yes. But it's continuously under pressure would be my

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1 point. Diastole and systole. During systole when the 2 heart is contracting, the pressure is significantly

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3 elevated, say 140. During diastole, there's still pressure

4 in that vessel, and that's the lower pressure in your blood

5 pressure. 60, you know.

6 Q And the vein does not pulse?

7 A The vein does not pulse, that is correct.

8 Q Okay. When you described the Selman method of

9 doing this --

10 A The Seldinger technique, yes.

11 Q -- it involved running a needle through the front of

12 the vein through the vein; is that correct?

13 A Well, what the Seldinger needle is, it's a needle that

14 has a stylet and it goes through the central hole of the

15 needle, okay. And what basically that needle is designed

16 to do is to puncture through-and-through the vessel. Then

17 you pull the stylet out so -- in the center of the needle

18 is a hole, so when you pull back, when you enter the blood

19 vessel, you get a return of blood. That's one reason it's

20 designed for that.

21

The other reason it's designed for that is so

22 then you can put a guidewire through the center of that

23 hole which allows you access into the blood vessel.

24 Q Okay. And I believe you stated during direct

25 examination that femoral vein access was not typically used

175

1 for drug administration or for anesthesia administration; 2 is that correct? 3 A That's correct. 4 Q But it certainly can be used for both of those things; 5 is that correct?

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6 A Yes. And I would say would be one of my last choices. 7 Q And it is certainly typically used for medical 8 procedures, is it not? 9 A It definitely can be used for therapeutic procedures, 10 absolutely. 11 Q Now, I believe during direct examination you testified 12 that the -- that all the complications put together, the 13 likelihood of complications was between 10 and 15 percent? 14 A I think -- I gave a range. I thought I said 10 to 20 15 percent if you put it together, but -16 Q 10 to 20 percent. 17 A But again, it is extremely variable. But if you look 18 at the literature, that would be your range typically. 19 Q And hitting the artery I believe you testified was at 20 17 percent? 21 A I said up to 17 percent in the literature. There's a 22 range again. 23 Q And hitting the bone you said happens all the time 24 with this technique; is that correct? 25 A It's a pretty routine part of the procedure because of
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1 the Seldinger technique as I described it. 2 Q So that is not a complication then? 3 A No, but it's painful. 4 Q And hitting the femoral nerve, you used the word a 5 significant percentage. What did you mean by that? 6 A It lies immediately adjacent to the vein, just like 7 the artery, and I don't think -- I don't think there's any 8 actual reported incidence of that in the literature.
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9 However, when I say significant, I mean, you know, at least 10 10 percent of the time, just like the artery. 11 Q So it's not reported in the literature. What is your 12 basis for saying it's 10 percent? 13 A Because I have hit it. 14 Q 10 percent of the time? 15 A Particularly before we used imaging guidance. And you 16 know it. It's immediate. It's painful. But it doesn't 17 have long-term sequelae. 18 Q Now, with the lethal injection process, is really the 19 risk of infection a complication to be worried about? 20 A Only if there's a stay of execution. 21 Q And again, in the lethal injection context, is the 22 risk of a, quote unquote, blood clot really something to be 23 worried about? 24 A Again, only if there's a stay of execution. 25 Q So help me with my math here. Hitting the artery
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1 happens up to 17 percent of the time. Hitting the nerve 2 happens 10 percent of the time. But total complication is 3 10 to 20 percent of the time? 4 A That's -- that's my testimony, yeah. 5 Q Okay. Now, can you describe in the literature the 6 work that was done to support your opinion, the study that 7 has been done to support your opinion that puncturing an 8 artery constitutes a pain rating of I believe you said 9 6 to 8 on a scale of 10. 10 A That is my professional opinion from my experience as 11 a practitioner. He asked me to rate it.
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12 Q Okay. So there's not any literature then that 13 supports that conclusion? 14 A Not that I brought to the courtroom, no. 15 Q Okay. And as I recall, you said that -- are the 16 people that you use the femoral vein access on, have they 17 been sedated? 18 A A large majority get sedation beforehand, absolutely. 19 Q So a large majority, or all? 20 A Well, only if we don't have a peripheral IV access, 21 okay. And that means potentially in a life-threatening 22 situation, or when we don't have or are unable to access 23 a peripheral IV. 24 Q So the sedated people, you did not ask them what the 25 pain felt like then?
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1 A It still hurts, believe me. 2 Q But you didn't ask those sedated people? 3 A Sure. Every time we do a procedure, our nurse is 4 documenting the pain scale. Are you in pain? What is your 5 1 to 10 pain scale? That's actually now a standard part of 6 conscious sedation. 7 Q And the nurse, when they're asking this question, do 8 they ask the patient to distinguish between the pain that 9 they have from the trauma that's requiring the femoral vein 10 access as compared to what you just did to them by hitting 11 the artery? 12 A I don't know, how you phrase that question. 13 Essentially when you hit the bone, when you hit the nerve, 14 when you get bleeding, you have just caused significant
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15 pain in your patient. They're hurting. Our nurses are 16 going, Are you in pain, yes. What's your degree of pain, 17 6, 8. That's where I base my clinical opinion from. 18 Q And these are the same people that have come in and 19 are in sufficient trauma to require you to do a femoral 20 vein access? 21 A They're all patients essentially. Now, the reason we 22 use conscious sedation is because a local anesthesia hurts, 23 number one. Number two, it relaxes that person, brings the 24 blood pressure down which decreases the degree and, you 25 know, the likelihood of a complication, but it doesn't
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1 eliminate completely the pain when you hit the nerve, when 2 you hit the bone. And usually you titrate your medication 3 through the procedure to deal with these additional 4 problems. 5 Q I think I understand. Now, you say this pain is 6 immediate. By that do you mean within a minute, five 7 minutes, ten minutes, an hour? What do you mean? 8 A Well, we talked about a number of different instances, 9 a number of different problems. One, when you hit the 10 nerve, that's instantaneous pain, okay. When you hit the 11 bone, that's instantaneous pain. When you start bleeding, 12 that hurts. And if the bleeding continues and a hematoma 13 continues to expand, and if you sit there and watch it and 14 let it expand, that pain is going to progressively 15 increase. 16 Q Okay. And I believe you testified that there are ways 17 of preventing the hematoma from becoming a problem.
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18 A Not always. If you're blindly sticking the blood 19 vessel -- the one situation you can't deal with is if you 20 stick the femoral vein above the inguinal ligament there, 21 so essentially you do your Seldinger technique, if you poke 22 a hole in the back wall of the artery that's in the 23 abdominal cavity and you start bleeding out, it's very 24 difficult to manually control that. There definitely are 25 cases when you send a patient to the operating room, just
180
1 like Dr. Heath had talked about, where they have to do a 2 cut-down and sew up the artery to stop the bleeding. 3 Q And you are unfamiliar with that being necessary in 4 Missouri during the past five executions? 5 A Yes, I am unaware of that occurring. 6 Q Now, are you aware if Missouri offers the offender a 7 sedative before the execution -- during the period before 8 the execution occurs? 9 A From the documents that I looked at, it said sedative 10 offered, yes. 11 Q Now, this afternoon you were shown a couple of 12 photographs in which you said that there was a lot of 13 blood. 14 A Well, what I said was if you look at this field, there 15 is a significant amount of blood in the field. If you 16 compare that to the amount of blood that you see with a 17 typical IV, which I think most people in the room have some 18 experience having an IV put in, or one of their loved ones, 19 that's a significant -- that's a lot more blood than occurs 20 when you have a peripheral IV established. Absolutely.
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21 Q And that appears to be a teaspoon of blood, two 22 teaspoons of blood, a cup, a quart; what number would you 23 give it? 24 A It's difficult to quantify that because you can see 25 the gauze is absorbed with blood. It's difficult to
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1 quantify that.

2 Q The gauze is certainly covered with blood.

3 A Well, it's soaked.

4 Q And I believe that there is oxygen in the air; is that

5 correct?

6 A Hopefully.

7 Q And that explains why the blood is red, doesn't it?

8 A That's incorrect, in my opinion.

9 Q You described the blood as being oxygenated?

10 A Oxygenated blood is -- obviously the blood that's

11 located within the artery is coming from the lungs which is

12 oxygenated. That's a physiological response.

13

This is instantaneous, and this to me indicates

14 basically when they pulled that Seldinger needle out, to

15 get this kind of volume of blood, that coloration, they

16 obviously hit the artery, in my opinion.

17 Q And when blood is exposed to air it's red, is it not?

18 A It -- different varying degrees of red. I'll give you

19 that, absolutely.

20 Q And in the catheter you described the blood as being

21 darker; is that correct?

22 A Yes.

23 Q And blood in the catheter has not been exposed to air,

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24 has it? 25 A Most likely not.
182

1 Q All right. Now, can you explain to the court the risk

2 that you explain to your patients when you -- before you do

3 a peripheral IV on them?

4 A We don't consent for peripheral IVs.

5 Q A patient does not consent?

6 A Absolutely not. There basically are no legitimate

7 risks for putting in a peripheral IV. I mean, you might

8 not be able to get it in, but we don't have patients

9 signing consent to have a peripheral IV. You would be

10 having thousands of consents signed every day. Absolutely

11 not. Because the risks are so minimal that it doesn't

12 justify a formal consent.

13 Q A formal consent. Well, let's phrase the question

14 differently. If you're talking with the patient and the

15 patient asks you what risks are there from a peripheral IV,

16 what will you tell the patient?

17 A I would tell the patient primarily it may take us one

18 or two pokes to get an IV in. If we've got an established

19 IV, there is essentially very, very little risk. There is

20 a small risk of extravasation which, because it's on the

21 surface of the skin, we will immediately detect.

22

I mean, you know, if you're trying to, in my

23 mind, increase the overall risks of a peripheral IV I'm

24 just going to disagree with that, because they're just an

25 essentially well-functioning IV that you can see sitting on

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1 the surface of your skin that poses very little, minuscule 2 risk for the patient. 3 Q And you do not inform the patient of those risks 4 before you do a stick? 5 A No. 6 Q Okay. And is that the standard of care that I can 7 expect in Colorado? 8 A I would think that is the standard of care, 9 absolutely. You talk about the surgical risk of the 10 procedure you're doing, et cetera, et cetera. But the risk 11 for a peripheral IV, no. 12 Q Okay. So from your perspective, there's no risk of 13 bleeding? 14 A Not significant bleeding, no. 15 Q I didn't say significant. 16 A You might get a few -- a tiny bruise. Nothing that's 17 going to require surgery or evacuation. The vein is not 18 under pressure, no. Significant bleeding, absolutely not. 19 Q And is there a risk of pain? 20 A Relative, yes. I would say the initial -- the initial 21 pin-prick, sure. It's a much smaller catheter. 22 Absolutely. 23 Q And there's no risk of hitting a nerve? 24 A I have never -- I personally have never hit a nerve 25 putting a peripheral IV in. So is there a chance? Yeah, I
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1 would say, but it's not a significant chance. 2 Q Not enough that --
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3 A Way less than a percent.

4 Q -- you would inform your patient.

5

Now, would you agree as a general matter that the

6 more experience one has doing a peripheral IV or doing a

7 femoral vein access, the more proficient one becomes at it?

8 A I would agree with that. And I'd also like to state

9 that his statement that there is no risk is just

10 categorically wrong.

11 Q Now --

12

THE COURT: Mr. Hawke, I hope you're winding

13 down now.

14

MR. HAWKE: I am.

15 Q (By Mr. Hawke) Are there certain patients where you

16 would not advise them to use a peripheral IV?

17 A For which particular type of procedure? I mean, in

18 general, patients who are going to need a long-term IV

19 access, okay, for multiple infusions of chemotherapy,

20 you would not put a peripheral IV in that type of patient.

21 Dialysis, in which you require flow rates of 350 to

22 450 cc's a minute, obviously you're not going to do that

23 through a peripheral IV.

24

MR. HAWKE: If I could have a moment with

25 counsel.

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1

That concludes my questioning, Your Honor.

2

MR. HELLMAN: Just a brief redirect, Your Honor.

3 REDIRECT EXAMINATION BY MR. HELLMAN:

4 Q Dr. Johnson, is there any difference in the anatomy

5 relative to femoral catheterization between an older person

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6 or a sick person and a prison inmate, the best you can 7 tell? 8 A The anatomy is pretty standard, yeah. There's no 9 change in the anatomy, no. 10 Q Do you believe that a prison inmate about to undergo 11 execution might suffer from high blood pressure? 12 A Absolutely. 13 Q Is that a factor that would increase the risk over the 14 general population of femoral access? 15 A Well, I -- hypertension definitely increases the 16 chance of getting significant bleeding, yes. 17 Q Would you call it a significant increase over the 18 general population? 19 A In a nonsedated person, I would say in a nonsedated 20 person, because you can generalize that to the acute 21 critical stage when you couldn't sedate somebody as well, 22 yes, that situation increases your chance of complications. 23 Q Are you aware if Missouri, when it offers sedation to 24 an inmate, explains the risks of femoral access and the 25 possible painful complications that could result?
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1 A I see no documentation of that, no, because they have 2 stated there are no risks. 3 Q If a severe bleeding were to occur as a result of an 4 arterial puncture, does Missouri have equipment in the 5 execution facility to properly care and remedy that type of 6 injury? 7 A Not that I'm aware of. If they had to go to the 8 operating room to repair the hole in the artery, no, I'm
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9 not aware of that. But I personally haven't toured the 10 facility. 11 Q Just for the record, what type of equipment would be 12 necessary to do that? 13 A Well, you're talking major surgical procedure. You 14 need to have general anesthesia. You need to have a 15 sterile surgical field, as well as all of the sterile 16 surgical steps required to do a femoral arterial cut-down 17 and repair the artery. 18 Q Going back to the exhibits from the Johnston 19 execution, I just want to be sure I understood your 20 testimony. The color of the blood that is outside the 21 catheter is a lighter red than the color of the blood 22 inside. What is your medical opinion about why the reason 23 the blood outside the catheter is lighter? 24 A Because it came from a femoral source. It's 25 oxygenated compared to the venous blood.
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1 Q To what degree of certainty do you hold that opinion?

2 A A high degree of certainty.

3

MR. HELLMAN: One second, Your Honor.

4

Those are all the questions I have for

5 Dr. Johnson.

6

MR. HAWKE: Nothing else, Your Honor.

7

THE COURT: Thank you, Doctor.

8

MR. BERGER: Your Honor, I apologize for this,

9 but our third expert, Dr. Thomas Henthorn's flight was

10 delayed by about two and a half hours. He landed in Kansas

11 City about 20 minutes ago and should be here within a half

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12 hour, hopefully much sooner. We certainly apologize to the

13 court for the inconvenience in time, but I'm wondering if

14 you wouldn't mind if we could take a short recess to allow

15 Dr. Henthorn to get into the courtroom. We certainly

16 believe his testimony is important to this case.

17

THE COURT: Well, if it was important he would be

18 here sooner rather than later. I'll take a brief recess,

19 but I'm going to recalculate your time as well.

20

Thank you.

21

(Recess)

22

MR. BERGER: Your Honor, I'd like to call

23 Dr. Thomas Henthorn to the stand.

24 THOMAS HENTHORN, called as a witness on behalf of the

25 Plaintiff, being first duly sworn, testified:

188

1 DIRECT EXAMINATION BY MR. BERGER:

2 Q Please state your name.

3 A My name is Thomas Henthorn.

4 Q For the record please spell your name.

5 A First name T-h-o-m-a-s. Last name H-e-n-t-h-o-r-n.

6

MR. BERGER: Let the record reflect that I'm

7 showing opposing counsel your CV marked as Plaintiff's

8 Exhibit 34.

9

May I approach the witness.

10 Q (By Mr. Berger) Is this your CV, Dr. Henthorn?

11 A Yes, it is.

12

MR. BERGER: Plaintiffs would like to move

13 Plaintiff's Exhibit 34 into evidence, Your Honor.

14

MR. PRITCHETT: No objection.

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15

THE COURT: Received.

16 Q (By Mr. Berger) Please state your position.

17 A I am currently the -- professor and chair of the

18 Department of Anesthesiology at the University of Colorado

19 in Denver.

20 Q And you have researched the pharmacokinetics of

21 thiopental; right?

22 A Yes, I have.

23 Q And you are also a practicing anesthesiologist?

24 A Yes.

25 Q How long have you been an anesthesiologist?

189

1 A 23 years.

2 Q And about how many patients do you anesthetize a week?

3 A These days it's about 20 a week.

4 Q And you were on call last night too, weren't you?

5 A Yes, I was.

6 Q Until about what time?

7 A About 7 this morning.

8 Q Did you get any sleep?

9 A I got two hours.

10 Q And did you review any of Missouri's execution records

11 in preparing for this hearing?

12 A Yes. I reviewed the last six, I believe.

13 Q And did you rely on these records in forming your

14 opinions of Missouri's lethal injection procedure?

15 A Yes, I did.

16

MR. BERGER: Your Honor, we would like to tender

17 Dr. Thomas Henthorn as an expert witness.

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18

MR. PRITCHETT: No objection.

19

THE COURT: Okay.

20 Q (By Mr. Berger) Did these Missouri records you

21 reviewed include for each of the six inmates the ECG

22 reports?

23 A Yes, they did.

24 Q And did you also review the interrogatory responses of

25 John Does One through Five?

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1 A Yes. 2 Q And did you also review the Crawford interrogatory 3 answers? 4 A Yes. 5 Q And did you review Mr. Crawford's deposition 6 transcript? 7 A Yes, sir. 8 Q And did you review the deposition transcript of John 9 Doe One? 10 A Yes. 11 Q Have you ever testified before in a lethal injection 12 case? 13 A No. 14 Q Would you be testifying in this case if you didn't 15 think there were problems with Missouri's lethal injection 16 procedure? 17 A No. 18 Q In your medical opinion, based on your review of the 19 execution materials provided by Missouri, does Missouri's 20 lethal injection procedure leave enough time for the

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21 thiopental to take effect before injecting the potassium 22 chloride? 23 A No, it does not. 24 Q So in your opinion, do you think the lethal injection 25 procedure causes significant risk of unnecessary pain?
191

1 A Yes.

2 Q Now, is thiopental one of your areas of expertise?

3 A Yes, it is.

4 Q And as you understand it, does Missouri use thiopental

5 in its lethal injection procedure?

6 A Yes, it does.

7 Q What is thiopental, briefly?

8 A Thiopental is a barbiturate that acts on the brain to

9 produce sedation and sleep or hypnosis.

10 Q And is sodium pentothal just another word for

11 thiopental?

12 A Yes, it is.

13 Q Where does thiopental need to get into the body to

14 take effect?

15 A Well, it needs to enter the brain.

16 Q Can it take effect before it gets into the brain?

17 A No, it cannot.

18 Q Do you understand Missouri's lethal injection

19 procedure to inject thiopental into the femoral vein?

20 A Yes, that's true.

21

MR. BERGER: Your Honor, let the record reflect

22 that I'm showing the opposing counsel Plaintiff's Exhibit

23 35 and 36.

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24 Q (By Mr. Berger) Is this an accurate picture 25 regarding the human circulatory system?
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1 A Diagrammatically it appears to be accurate.

2 Q Is this the system through which thiopental must

3 travel on its way to the brain?

4 A Yes, it includes that.

5

MR. BERGER: Your Honor, we offer into evidence

6 Exhibit 35, Plaintiff's Exhibit 35.

7

MR. PRITCHETT: No objection.

8

THE COURT: It will be received.

9 Q (By Mr. Berger) Please describe the course of

10 thiopental, starting when it is first injected. And

11 could you mark the path of the thiopental on the screen.

12 It actually will show up so we can all see it.

13 A Yes. It would be injected into the femoral -- there

14 it is -- into the femoral vein. It would then travel into

15 the pelvis through the iliac vein, which is here. And then

16 into the inferior vena cava and from the vena cava it would

17 travel up to the heart in the chest.

18 Q Okay. Thank you. Let the record reflect the screen

19 is now showing Plaintiff's Exhibit 36. Is this an accurate

20 depiction of the heart and lungs?

21 A Yes.

22

MR. BERGER: Your Honor, we offer into evidence

23 Exhibit 36.

24

MR. PRITCHETT: No objection.

25

THE COURT: Be received.

193

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1 A Okay to proceed?

2

Okay. Thanks. From here it would enter the right

3 side of the heart, specifically the right atrium. It would

4 travel down into the left -- the right ventricle which is a

5 powerful pump which will pump the blood out into the

6 pulmonary artery. Here the artery is marked as being blue

7 because the blood is not oxygenated. Then it goes out into

8 the capillaries of the lung.

9

The blood re-collects in these red vessels which

10 brings the blood back into the left side of the heart, the

11 left atrium. From the left atrium it goes into the left

12 ventricle and the ventricle contracts and would then send

13 the blood up the aorta into the arteries and very rapidly

14 after that it would be in the tissues of the body.

15 Q Dr. Henthorn, from the time the injection is first

16 started, how long does it take the thiopental to travel

17 this course and get to the brain?

18 A If you include the injection tubing, it's about 45

19 seconds.

20 Q And once the thiopental is in the brain, does it take

21 affect instantly?

22 A No, it does not.

23 Q Why not?

24 A It must move across the concentration gradient

25 Initially the concentrations in the blood are very high.

194

1 It then diffuses into the brain tissue and the 2 concentrations in the brain begin to rise.

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3 Q Please describe briefly the concept of depth of 4 anesthesia. 5 A Well, depth of anesthesia refers to interplay between 6 unconsciousness and a stimuli that might interrupt that 7 unconsciousness. At the farthest end of the curve would be 8 no stimuli whatsoever. Somebody may appear to be 9 unconscious, they close their eyes or fall asleep 10 spontaneously. Next up would be a stimulus of voice, a 11 voice command. Beyond that would be like touch. And then 12 various levels of pain would be moderate pain and high pain 13 and extreme pain. 14 Q So is it possible to not be able to respond to voice, 15 but to be able to respond to touch? 16 A Yes. I have to think about that. I'm slow after no 17 sleep. 18 Q And is it possible not to be able to respond to touch, 19 but to be able to respond to moderate pain? 20 A Yes. 21 Q And is it possible to not be able to respond to 22 moderate pain, but be able to respond to a higher level of 23 pain? 24 A Yes, it is. 25 Q Have you read Dr. Dershwitz' affidavits in the
195
1 Johnston litigation in Missouri? 2 A Yes. 3 Q Have you read Dr. Dershwitz' affidavits in the Brown 4 case in North Carolina? 5 A Yes.
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6 Q In those affidavits, what depth of anesthesia does 7 Dr. Dershwitz select as appropriate for a lethal injection? 8 A He uses for his modeling response to voice command, or 9 lack of response to voice command. 10 Q Do you think voice recognition loss of consciouness is 11 the correct depth of anesthesia to choose? 12 A Not for something painful. 13 Q Why not? 14 A Because there could still be a response to pain. 15 Q What depth of anesthesia would you select as 16 appropriate for a lethal injection execution? 17 A I would select silence of the cerebral cortex that 18 corresponds to an isoelectric or flat line ECG. It's also 19 known as burst suppression. 20 Q Why is burst suppression the appropriate method of 21 determining consciousness for a lethal injection execution? 22 A Because without having cerebral activity there is no 23 chance that there would be any conscience recognition of 24 pain. 25 Q So if someone has been anesthetized but has not
196
1 reached burst suppression, is it possible for them to feel 2 pain? 3 A Yes, it is. 4 Q But if someone has reached burst suppression, is it 5 possible for them consciously to feel pain? 6 A In my best medical opinion, no, it's not possible for 7 them to feel pain, or experience pain. 8 Q Why do trained anesthesiologists monitor anesthetic
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9 depth during surgery? 10 A To be sure that the anesthetic drugs are working, that 11 they're working properly. 12 Q Can we be sure that anesthesia is working without 13 monitoring anesthetic depth? 14 A In my opinion, no. 15 Q And in the execution context, what can go wrong that 16 can prevent anesthesia from working? 17 A Well, with these large doses, the thing that could 18 prevent it from working would be delivery, so it could be a 19 leaking tube, leaking stopcocks, things like that, could be 20 extravasation into the tissue instead of into the blood 21 vessels. It could be prevention of the blood to freely 22 flow if there were straps on an arm or something like that, 23 if it were going into a peripheral IV. Or the dose could 24 be incorrect, either prepared improperly or was a defective 25 dose.
197

1 Q Let the record reflect that the screen is now showing

2 a photo of the executioner and doctor's view of the

3 gurney.

4

MR. BERGER: My understanding is this has already

5 been admitted into evidence as part of the video from the

6 tour of the facility.

7

MR. PRITCHETT: I understand that as well. No

8 objection to the still photograph.

9 Q (By Mr. Berger) There's a person lying on the gurney

10 here. The first of these photos shows a person lying on

11 the gurney as seen from the execution support room from the

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12 view approximately of one of the plungers. Dr. Henthorn, 13 in your medical opinion, could a person untrained in 14 anesthesiology properly judge anesthetic depth given this 15 view? 16 A No. 17 Q Why not? 18 A Well, first of all, the individual is covered up so 19 many of the signs of late anesthesia, movement, et cetera, 20 would not be discernible with someone covered up. Second 21 of all, you can't even really see the facial expression. 22 And most importantly, there is an object in the way that 23 prevents you from interacting with the patient -- or the 24 inmate, sorry. 25 Q What is that object?
198
1 A It's the window with blinds on it. 2 Q In your medical opinion, could a trained 3 anesthesiologist properly judge anesthetic depth given 4 this view? 5 A They would be extremely hesitant to because most 6 anesthesiologists would believe you could not do that, 7 and I believe that as well. 8 Q And this is also a picture from the execution support 9 room of a person lying on the gurney with a slightly 10 different angle. This would be the view of one of the 11 other plungers. In your medical opinion, could a person 12 untrained in anesthesiology properly judge anesthetic depth 13 given this view? 14 A No.
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15 Q Would that be for substantially the same reasons that 16 you said before? 17 A The same reasons. 18 Q And in your medical opinion, could a trained 19 anesthesiologist properly judge anesthetic depth? 20 A No. 21 Q Also for the same reasons? 22 A The same reasons. 23 Q When we talk about the word pharmacokinetics, what 24 does that mean? 25 A It's the study of the timed course of drugs in the
199
1 body. Specifically, it would be the distribution of drugs 2 through body tissues, and the other would be metabolism of 3 the drug or its elimination. 4 Q Does thiopental take effect immediately? 5 A No, it does not. 6 Q And the affidavits you referred to above, does 7 Dr. Dershwitz' affidavits take into account the time it 8 takes for thiopental to take effect? 9 A It was not evident to me that he used those in his 10 calculations. 11 Q Have you read the transcript of John Doe One's 12 deposition? 13 A Yes. 14 Q Based on your reading of the transcript, how long does 15 he say it will take for thiopental to take effect? 16 A He says it will take effect within 15 seconds. 17 Q In your medical opinion, is this right?
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18 A This is not correct.

19 Q Dr. Dershwitz testified in this case on January 30th,

20 2006. He said, quote, the typical time to lose

21 consciousness will be somewhere between 30 seconds and one

22 and a half minutes.

23

Defining loss of consciousness as Dr. Dershwitz

24 does as being unable to respond correctly to verbal

25 commands, do you agree that loss of consciousness might

200

1 arrive within a minute and a half? 2 A Yes, it's possible. 3 Q Would burst suppression arrive within one and a half 4 minutes with a five-gram dose? 5 A It's unlikely, according to my calculations. 6 Q Would burst suppression arrive within a minute and a 7 half with a two-and-a-half-gram dose? 8 A Well, actually -- you said the first one was five? 9 Q Yes. 10 A Let me backtrack. It would be likely at a minute and 11 a half to have burst suppression, but not with a 2.5. 12 Q And would burst suppression arrive -- strike that. 13 Would burst suppression within the minute and a half with 14 a five-gram dose still be likely if we considered the 15 reduction in cardiac output? 16 A No, not with reduction in cardiac output. 17 Q Do you consider reduction in cardiac output likely? 18 A Extremely likely. 19 Q And would burst suppression arrive within a minute and 20 a half with a two-gram dose?

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21 A It's -- it's unlikely with a two-gram dose. 22 Q So while Dr. Dershwitz does recognize that thiopental 23 needs time to take effect, is he correct that a minute and 24 a half is the longest it would take for thiopental to reach 25 the necessary level of anesthesia to assure that the inmate
201

1 would not feel pain?

2 A No. It's too short.

3 Q In your medical opinion, is there a significant risk

4 that the protocol as carried out by Missouri causes

5 unnecessary pain?

6 A Yes.

7

MR. BERGER: Your Honor, let the record reflect

8 that I'm showing opposing counsel Figure 1.

9

Your Honor, would you like me to bring each of

10 the figures up to the witness that are on the screen, the

11 physical figures?

12

THE COURT: Are they the same thing that's on the

13 screen?

14

THE WITNESS: The same. I don't need them.

15

THE COURT: He doesn't need them.

16 Q (By Mr. Berger) What is this, Dr. Henthorn?

17 A This is a graph that first shows the course of

18 thiopental as it works its way from the injecting syringe

19 to the brain, which takes about 45 seconds.

20 Q How do you know what this is?

21 A I prepared this.

22

MR. BERGER: Your Honor, we offer Plaintiff's

23 Exhibit 39 into evidence.

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24

MR. PRITCHETT: No objection.

25

THE COURT: It will be received.

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1 Q (By Mr. Berger) So please take us through the 2 thiopental's path through the body and how long each step 3 takes. How long does it take for the thiopental to get to 4 the end of the tubing from the syringe? 5 A 7.5 seconds. 6 Q And how long does it take from there to get to the 7 heart? 8 A 12 seconds. 9 Q And at that point, once the thiopental is in the 10 heart, what is the arterial concentration of thiopental? 11 A As it shows in this graph, it is zero. 12 Q And what is the brain concentration of thiopental at 13 that point? 14 A It would also be zero. 15 Q Does the thiopental go to the lung next? 16 A Yes. 17 Q And about how long does it take for it to go to the 18 lung? 19 A About 13 seconds. 20 Q What is the arterial concentration of thiopental then? 21 A Still zero. 22 Q And the brain concentration at that point? 23 A It's still zero. 24 Q Does the thiopental then go back to the heart? 25 A Yes.
203

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1 Q About how long does it take to get back to the heart? 2 A Approximately another 13 seconds. 3 Q And then does it go to the arteries? 4 A Yes, it does. 5 Q And from there how long does it take to get to the 6 brain? 7 A Best guess would be -- not a guess, but it would be 8 one to three seconds. 9 Q Once the thiopental is in the brain, does it take 10 instant effect? 11 A No, it does not. 12 Q What needs to happen for it to work in the brain? 13 A What needs to happen is it needs to diffuse from the 14 arteries in the brain -- the capillaries in the brain, into 15 the brain tissue. 16 Q The graphs here plot both arterial plasma 17 concentration and brain concentration. Which measure is a 18 better indicator of when a patient or inmate will be at 19 burst suppression? 20 A It would be the brain concentration, or the effect 21 side concentration. 22 Q And does it take longer for the thiopental modeling 23 to run to the arteries or in the brain? 24 A It's more rapid in the arteries. It's longer in the 25 brain.
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1 Q In your opinion, does Missouri give enough time for 2 the thiopental to take effect before the potassium chloride
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3 is injected? 4 A No. 5 Q What knowledge did you base this modeling on? 6 A This modeling is based on modeling that was developed 7 in our laboratory, mostly by myself, and it's based on 8 experiments over a number of years. 9 Q How much experience do you have performing this kind 10 of modeling? 11 A I exclusively did this sort of modeling for at least 12 twelve years, and with thiopental for I believe about six 13 manuscripts. We also -- yeah. 14 Q And have you tested your models in the scientific 15 community? 16 A Yes. These have been subjected to peer review in very 17 good journals. They have been published and well-received 18 there. And in addition, this was the basis of my National 19 Institute of Health research. 20 Q And what has the response of the scientific community 21 been to your models? 22 A It was favorable. We got quite a good score and we 23 were funded for -- I was funded for eleven straight years 24 to do this kind of work. 25 Q How many people in the country would you say have as
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1 much experience as you do modeling the pharmacokinetics of 2 thiopental? 3 A If we're talking about the specifics of onset and the 4 intensity of onset, I would say it's less than six. 5 Q Do you know Dr. Mark Dershwitz?
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6 A Yes, I do.

7 Q Did you teach Dr. Dershwitz pharmacokinetics at

8 Northwestern?

9 A I was the teaching assistant for the pharmacology

10 course where we had an intense experience with

11 pharmacokinetics.

12 Q Is Dr. Dershwitz considered an expert in the onset of

13 the effect of thiopental?

14 A No, he's not.

15 Q Let the record reflect that the screen is now showing

16 Figure 2 and I'm showing Figure 2 to opposing counsel.

17

What is this, Dr. Henthorn?

18 A This is a graph showing the difference in onset time

19 between simple loss of consciousness as defined by loss of

20 voice recognition to a deeper level of anesthesia.

21 Q And how do you know what it is?

22 A I prepared it.

23

MR. BERGER: Your Honor, plaintiff offers

24 Figure 2, otherwise known as Exhibit 40, into evidence.

25

MR. PRITCHETT: No objection.

206

1

THE COURT: It will be received.

2 Q (By Mr. Berger) What does the X axis in this graph

3 represent?

4 A It's time and it shows the first two minutes after

5 beginning the injection of thiopental.

6 Q And just to be clear, the X axis is the horizontal

7 axis?

8 A Yes.

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9 Q And what does the Y axis represent? 10 A It would be the vertical axis, and it looks at the 11 probability of effect. 12 Q And what probability of effect are you most interested 13 in as an anesthesiologist? 14 A As an anesthesiologist, and actually most clinicians, 15 but we are interested in 95 percent probability. 16 Q Why do you choose 95 percent? 17 A This -- because it's, first of all, it's a standard in 18 pharmacology. We understand the mathematics behind it. 19 And it also means that virtually all, or the vast majority 20 of individuals will have reacted to the drug. So it's a 21 good way of calibrating a dose. 22 Q And what does the dotted line on the left represent? 23 A The dotted line on the left is -- represents the 24 probability of having loss of consciousness vs. time after 25 starting infusion at time zero.
207

1 Q And what does the solid line on the right represent?

2 A Basically the same thing. Starting at time zero, but

3 this one is looking at a deeper level of anesthesia.

4 Specifically burst suppression.

5 Q

And again, which depth of anesthesia do you believe

6 is necessary to assure that a person will not feel pain?

7 A The one represented by the solid line, EEG burst

8 suppression.

9 Q How much longer does it take to achieve a 95 percent

10 likelihood of burst suppression compared to achieve a 95

11 percent likelihood of lack of voice recognition

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12 consciousness? 13 A It's going to depend on a number of things, including 14 dose. This was modeled with a five-gram dose, so you can 15 see with a five-gram dose it's only about 20 seconds 16 difference. 17 Q And how did you choose that amount of five grams? 18 A From the Crawford affidavit saying that was the dose 19 used in Missouri. 20 Q If you found out that Missouri used a different amount 21 of thiopental or that not all the thiopental that was used 22 was delivered successfully into the inmate's veins, would 23 that change the result? 24 A It would -- the only result that would change would be 25 moving the curve to the right, which would mean that the
208
1 effects would come on slower. 2 Q Does this figure take into account the reduction in 3 cardiac output that might be caused by thiopental? 4 A No. This -- it was simply to show the difference in 5 time between the two kinds of effect of thiopental. 6 Q Is a reduction in cardiac output likely? 7 A With a five-gram dose, yes, it is. 8 Q Why did you exclude that assumption from this graph? 9 A This -- because it would affect both. And the idea 10 here was just to illustrate that there is a time 11 differential between loss of consciousness and achieving a 12 deeper level of anesthesia from the same dose. 13 Q And what effect does a reduction in cardiac output 14 have on the circulation?
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15 A It would slow the circulation down.

16 Q And what effect does a reduction in circulation have

17 on when thiopental is delivered to the brain?

18 A It would slow that down as well, so it would take

19 longer to take effect.

20 Q And what effect does less thiopental in the brain have

21 on the time it takes to reach burst suppression?

22 A It would prolong that as well.

23 Q Let the record reflect I'm showing Exhibit 41 to

24 opposing counsel.

25

This is an affidavit submitted by Dr. Dershwitz

209

1 in the Page case in North Carolina. Have you read this?

2 A Yes.

3 Q Let me read a short portion. Dr. Dershwitz writes,

4 "During an execution by lethal injection" --

5

MR. PRITCHETT: Where are you reading from?

6

MR. BERGER: I'm sorry. My apologies. Page 9,

7 paragraph 22.

8

MR. PRITCHETT: Thank you.

9

MR. BERGER: My apologies.

10 Q (By Mr. Berger) "During an execution by lethal

11 injection, circulation is slowed or stopped immediately by

12 the administration of thiopental."

13

MR. BERGER: Your Honor, we offer Exhibit 41 into

14 evidence.

15

MR. PRITCHETT: No objection.

16

THE COURT: Be received.

17 Q (By Mr. Berger) Do you agree with Dr. Dershwitz'

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18 assessment that the thiopental slows circulation? 19 A Yes, I do. 20 Q Do you agree with Dr. Dershwitz' assessment that the 21 slowing would happen immediately? 22 A No. It would take time for it to reach the arterial 23 side of the circulation so it would take approximately 24 45 seconds to a minute. 25 Q Do you agree with Dr. Dershwitz' assessment that the
210

1 heart could stop?

2 A In some patients with heart disease it might be able

3 to stop their heart, but I don't think it would stop their

4 heart.

5 Q Have you seen evidence of the heart stopping on the

6 ECGs you studied?

7 A Not in the ones from Missouri. It continued to beat

8 after the thiopental.

9 Q For the record, I am now showing Figure 3, Exhibit 42,

10 on the screen. What does this figure represent?

11 A This figure illustrates the effect of onset time to

12 95 percent probability of an effect as the heart function

13 decreases. More specifically, that the cardiac output

14 decreases.

15 Q And how do you know?

16 A I prepared this one as well.

17

MR. BERGER: Your Honor, I would like to enter

18 Exhibit 42 into evidence.

19

MR. PRITCHETT: No objection.

20

THE COURT: It will be received.

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21 Q (By Mr. Berger) So would a reduction in cardiac 22 output delay the onset of thiopental? 23 A Yes. 24 Q Will the reduction in cardiac output delay loss of 25 consciousness?
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1 A Yes. 2 Q And will the reduction in cardiac output also delay 3 burst suppression? 4 A Yes. 5 Q Have you seen the timetables provided by defendant 6 Crawford to plaintiff's first interrogatories? 7 A Yes, I have. 8 Q Is it correct that these timetables represent that 9 each injection is typically given within a minute of each 10 other, or less? 11 A Yes. 12 Q And have you read Mr. Crawford's answers at his 13 deposition? 14 A Yes, I have. 15 Q And does he represent that Missouri injects the drugs 16 about as quickly as it can? 17 A Yes. 18 Q And have you seen the ECG reports from the last six 19 executions? 20 A Yes. 21 Q From these ECGs, can you usually tell when each drug 22 was injected? 23 A In five of the six it was pretty easy to tell.
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24 Q And have you relied on the ECGs and these markings in 25 your analysis?
212

1 A Yes, I have.

2 Q And have you read John Doe Two's interrogatory answer

3 stating that he or she marks on the ECG report when each

4 injection begins and when it ends?

5 A Yes.

6 Q Which is on page two, No. 17, of John Doe Two's

7 interrogatory answer.

8 A Yes. I was happy to read that because I already

9 assumed that was the case.

10

MR. BERGER: I believe this is already in

11 evidence.

12 Q (By Mr. Berger) And based on this testimony, these

13 ECGs, would you say that Missouri generally injects the

14 drugs extremely quickly?

15 A Yes.

16 Q Do you remember the Vernon Brown ECG?

17 A Yes, I do.

18 Q Based on the Vernon Brown ECG report, how long after

19 the thiopental was first injected did the potassium

20 chloride reach the veins?

21 A I believe it was 128 seconds.

22 Q In your medical opinion, with any dose of thiopental,

23 five grams or less, is it likely that burst suppression was

24 reached by the time that potassium chloride reached the

25 veins in the Vernon Brown case, based on those times?

213

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1 A I'm sorry. You said any dose less?

2 Q Yes. With any dose of thiopental five grams or less,

3 is it likely that burst suppression was reached, counting

4 in the cardiac -- the effects on cardiac output?

5 A No.

6 Q And from your analysis of the ECGs, is the Vernon

7 Brown timing pretty representative of the timing of the

8 injections in the other five -- the other four executions

9 for which we have records and markings on the ECGs?

10 A Yes, it was.

11 Q And if we look at defendant Crawford's timetables for

12 other executions for which we do not have the ECGs, are

13 some of the timings even faster?

14 A Yes. There were two that -- actually No. 7 and No. 8

15 were probably less than two minutes.

16 Q Let the record reflect I am now showing Figure 4,

17 Exhibit 43 on the screen. What is this, Dr. Henthorn?

18 A This is a graph showing when potassium is in the

19 veins, that's the shaded part, in relation to when -- the

20 probability of burst suppression occurring under different

21 conditions.

22 Q And how do you know what it is?

23 A I prepared this one.

24

MR. BERGER: Your Honor, we offer Plaintiff's

25 Exhibit 43 into evidence.

214

1

MR. PRITCHETT: No objection.

2

THE COURT: It will be received.

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3 Q (By Mr. Berger) How much thiopental does this graph 4 assume? 5 A Five grams. 6 Q And what again does the box represent? 7 A This would be the time that thiopental was entering 8 the femoral vein. 9 Q And what does the left-hand side of the box then 10 represent? 11 A That would be when it first arrives in the femoral 12 vein. 13 Q So assuming that cardiac output is unchanged by 14 thiopental, what is the probability of thiopental achieving 15 burst suppression when the potassium chloride reaches the 16 veins in about one and a half minutes? 17 A It's approximately a 98 percent certainty. 18 Q And how can you see this on the graph? 19 A Well, that is where the left-hand part of the box, or 20 the left-hand edge of that box hits the solid line which 21 represents that cardiac output has no effect -- I mean, 22 thiopental has no effect on the cardiac output, and this 23 would be the probabilities of achieving burst suppression. 24 And as you can see, it's near the top of the box -- or the 25 line, so it's about 98 percent.
215
1 Q What are the chances that with a five-gram dose of 2 thiopental there would be no effect on cardiac output? 3 A I think it's virtually zero. 4 Q So if we assume that there is, say, a 25 percent 5 reduction on cardiac output so that cardiac output is 75
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6 percent of the baseline, what are the chances that 7 thiopental would have reached burst suppression when the 8 potassium chloride reaches the veins in about a minute and 9 a half? 10 A That reduces it to -- it's now 75 percent. 11 Q And if we assume that there is a 50 percent reduction 12 in cardiac output, so that cardiac output is 50 percent of 13 the baseline, what are the chances that the thiopental 14 would have reached burst suppression when the potassium 15 chloride reaches the veins in a minute and a half? 16 A As you can see, these are very steep curves, and at 17 this point the probability is about two or three percent. 18 Q And if we assume that there's a 75 percent reduction 19 in cardiac output, so that cardiac output is 25 percent of 20 the baseline, what are the chances thiopental would have 21 reached burst suppression when the potassium chloride 22 enters the veins? 23 A It would be infinitesimally small. 24 Q And again, is it likely that there will be some effect 25 on cardiac output with a five-gram dose?
216
1 A I think it's a virtual certainty. 2 Q With a five-gram dose would you expect that effect on 3 cardiac output to be big or small? 4 A I would expect it to be large. 5 Q So would you expect that the reduction in cardiac 6 output following a dose of that size would likely be 7 somewhere between 50 and 75 percent? 8 A It would be at least 50 percent, in my best medical
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9 opinion. 10 Q And possibly more? 11 A And possibly more. 12 Q And assuming such a reduction in cardiac output, is 13 it likely that the thiopental will have achieved burst 14 suppression at one and a half minutes when the potassium 15 chloride reached the veins in Vernon Brown's execution? 16 A It would be very unlikely. 17 Q And once again, is the timing of the injection of 18 thiopental and potassium chloride in the Vernon Brown 19 execution typical of the timing of the other -- of the 20 injections in the other executions you have reviewed? 21 A Yes. 22 Q Is Figure 4 up on the screen, Exhibit 43, identical 23 to what was known as Figure 5 which was attached to your 24 expert report, representing the same thing? 25 A No.
217

1 Q What changed on it?

2 A Well, the main thing that changed was that it became

3 clear after reviewing the ECG records that the injection

4 time was not one minute as it had been on the record, on

5 the handwritten record, just writing the times that the

6 injection began and ended. I used those initially and it

7 was one minute.

8

When you actually look at the ECG it's almost

9 exactly 30 seconds. So I sped up the injection time for

10 these.

11 Q So does the new graph make your findings more

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12 accurate? 13 A I believe they do. 14 Q And would it be fair to say that the new graph is more 15 in favor of the state than the old graph was? 16 A Yes, it is. 17 Q Now, what is the probability of burst suppression if 18 there is no change in cardiac output, in the new graph? 19 A I'm sorry? 20 Q Am I correct that you just said the probability of 21 burst suppression in the new graph, if there is no change 22 in cardiac output, is about 98 percent? 23 A Yes. 24 Q Do you remember what it was in the old graph? 25 A I think it was closer to 60 percent.
218
1 Q And in the new graph, what is the likelihood of burst 2 suppression if cardiac output is at 50 percent? 3 A It's two percent. 4 Q And what is the probability of burst suppression at 5 50 percent in the old graph? 6 A I believe it was also quite small, but I don't 7 remember the number. 8 Q But would it have been less than -9 A It was less than two percent, yes. 10 Q And again, what is the probability of burst 11 suppression -- strike that. How likely is it that a 12 five-gram dose of thiopental will have a 50 percent effect 13 on cardiac output, or more? 14 A I think it's very likely.
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15 Q Have you reviewed the chemical log provided by the 16 state? 17 A Yes. 18 Q Do you remember what amount of thiopental was 19 indicated for the Marlin Gray execution? Let me show it to 20 you. Do you remember -- in those last two executions how 21 much thiopental was used, according to the chemical log? 22 A 2.5. 23 Q And what effect will a reduced dose of thiopental have 24 on the time it takes for thiopental to reach burst 25 suppression?
219

1 A It will prolong the time.

2 Q And have you read the letter of the state admitting

3 that they used 2.5 grams?

4 A Yes.

5

MR. BERGER: Let the record reflect that I'm

6 showing opposing counsel Plaintiff's Exhibit 44.

7 Q (By Mr. Berger) Is this that letter, Dr. Henthorn?

8 A Yes.

9

MR. BERGER: Your Honor, we move to admit

10 Plaintiff's Exhibit 44.

11

MR. PRITCHETT: I think it's already in the

12 record, but to the extent it needs to be admitted as an

13 exhibit we don't object.

14

THE COURT: Okay.

15 Q (By Mr. Berger) And you have already said that you

16 have reviewed portions of John Doe One's deposition?

17 A Yes.

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18 Q And if we turn to that deposition, at page 21, he

19 says, "I'll get out five. I'll use 2.5." And at page 30,

20 he says, "I do remember when we used only 2.5."

21

Based on your understanding of John Doe One's

22 deposition testimony, has Missouri given a five-gram dose

23 of thiopental in any of the past six executions?

24 A No.

25 Q Can you tell how much thiopental he actually gave?

220

1 A No.

2 Q If we assume that he gave 2.5, let's -- let the record

3 reflect that the screen now shows Figure 5, which is

4 Plaintiff's Exhibit 45, which assumes a 2.5 gram dose. Can

5 you briefly describe what this is?

6 A This is very similar to the last graph. It shows

7 the -- when the potassium was in the vein in relation to

8 the probability of achieving an effect.

9 Q And how do you know what it is?

10 A I prepared this one.

11

MR. BERGER: Your Honor, we offer Plaintiff's

12 Exhibit 45 into evidence.

13

MR. PRITCHETT: No objection.

14

THE COURT: Received.

15 Q (By Mr. Berger) And again, what amount of thiopental

16 does this figure assume?

17 A 2.5 grams.

18 Q So assuming this 2.5 grams of thiopental and that

19 cardiac output is unchanged by thiopental, what is the

20 probability of thiopental achieving burst suppression in

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21 1.5 minutes? 22 A It's about 75 percent. 23 Q If we then assume 25 percent reduction in cardiac 24 output, what are the chances it would have gotten to burst 25 suppression at that point?
221
1 A It's about seven or eight percent. 2 Q And with a 50 percent reduction? 3 A It's less than one percent. 4 Q And with a 75 percent reduction? 5 A Again, it's infinitesimally small. 6 Q And is it likely that there will be some effect on 7 cardiac output with a 2.5 gram dose? 8 A Yes. This is still a very large dose. Again -- not 9 again, but these doses are not well-studied. Clinical 10 doses are well-studied and those produce a reduction in 11 cardiac output. So there is every probability that there 12 will be a substantial reduction in cardiac output from 2.5. 13 Q And roughly what change in cardiac output do you 14 consider most likely with a 2.5 gram dose? 15 A Based on what I have observed with thiopental in 16 the past I would say 50 percent. It's very likely, and 17 conservative. 18 Q And with any of those scenarios with reduced cardiac 19 output, is it likely that the 2.5 grams of thiopental here 20 would have achieved burst suppression at one and a half 21 minutes when the potassium chloride was injected -- entered 22 Vernon Brown's veins? 23 A No.
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24 Q Let the record reflect the screen now shows 25 Plaintiff's Exhibit 46, which is Figure 6.
222

1

Please describe what this is.

2 A Almost identical to the last graph. It again shows

3 when the potassium is in the vein in relation to the

4 probability of effect.

5 Q And how do you know what this is?

6 A I prepared this one as well.

7

MR. BERGER: Your Honor, we offer Plaintiff's

8 Exhibit 46 into evidence.

9

MR. PRITCHETT: No objection.

10

THE COURT: It will be received.

11 Q (By Mr. Berger) And based on your reading of John Doe

12 One's deposition transcript, do you think he actually used

13 2.5 grams?

14 A I think it would be very difficult, based on his

15 description of what he was doing, to actually get the full

16 content of every syringe withdrawn and put into another

17 syringe, so I think it's probably less.

18 Q So if we assume a two-gram dose, what are the chances

19 that the thiopental would have achieved burst suppression

20 before the potassium chloride reaches the veins at 1.5

21 minutes?

22 A Again, with no change in cardiac output, the

23 probability has now fallen to just under 40 percent.

24 Q And with a two-gram dose, do you consider a change in

25 cardiac output likely?

223

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1 A Yes. 2 Q And with a change in cardiac output, with a 25 percent 3 change in cardiac output, what would be the likelihood of 4 burst suppression? 5 A It's about three percent. 6 Q And with a 50 percent change? 7 A It's way less than one percent. 8 Q And with a 75 percent change? 9 A Again it's -- it has actually fallen to even more than 10 infinitesimal. 11 Q And what change in cardiac output would you expect to 12 be most likely with a two-gram dose? 13 A Again, I don't think it would be substantially 14 different from the 2.5 gram dose. I think it would be 15 in the neighborhood of 50 percent. 16 Q And is the dose of thiopental necessary to model the 17 onset effect of thiopental? 18 A Yes. 19 Q So if you don't know the dose, can you know the time 20 it takes effect? 21 A No. You will know that -- regardless of dose, you 22 will know when it reaches the arteries, but the next step, 23 which is the diffusion into the brain, is dependent on 24 concentration, so a bigger dose produces higher 25 concentrations so it would speed things up, and a smaller
224
1 dose would slow things down. 2 Q So assuming that whoever is mixing the thiopental does
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3 not know exactly what amount he is mixing, can that person 4 know when the thiopental will take effect? 5 A It's unlikely. 6 Q And even if a person knows how much he's mixing, if 7 the full amount of the thiopental that has been mixed is 8 not delivered successfully into the person's veins, is it 9 possible to know when the thiopental will take effect? 10 A No. 11 Q Assume that the thiopental did not achieve burst 12 suppression and that a patient or an inmate suffered pain, 13 let's assume it's an inmate, how likely is it that a 14 participant in an execution would be able to see that pain? 15 A I think it would be unlikely. 16 Q What effect might thiopental have that could prevent 17 an onlooker from being able to see an inmate's pain? 18 A Well, already before the pain would arrive, they would 19 have been relaxed and their ability to respond would be 20 curtailed. 21 Q Will it be harder for a witness to see the pain if 22 they're looking through a window from another room? 23 A Yes, I believe so. 24 Q Would it be harder to see the pain if there's a sheet 25 covering the inmate?
225
1 A Yes. 2 Q And would it be harder to see the pain if there's a 3 venetian blind partially drawn over the window? 4 A Yes to that as well. 5 Q In making the models that we have just reviewed,
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6 Dr. Henthorn, do you have to make certain assumptions? 7 A Yes. 8 Q Are these assumptions discussed in your expert report? 9 A Yes, they are. 10 Q Did you choose eight feet of tubing? 11 A Yes. 12 Q Why did you choose that amount of tubing? 13 A That was based on the report from the Department of 14 Corrections. 15 Q And did you choose seven and a half second mean 16 transit time to reach the patient? 17 A Yes. 18 Q And why did you choose seven and a half second mean 19 transit time? 20 A Well, the dead space, again from the report from 21 Missouri, was that the dead space of that eight feet of 22 tubing was 15 milliliters. So dividing the 15 milliliters 23 by two milliliters (sic) per second would give you a mean 24 time for injection would be 7.5. 25 Q And did you choose an injection speed of two cc's per
226
1 second? 2 A I did in these revised graphs, yes. 3 Q And why did you choose that injection speed? 4 A Well, because that's what Mr. Crawford said, first of 5 all. And second, if you look at the ECG and look at the 6 timing as marked from the beginning of the injection to the 7 end of the injection, it is remarkably close to the time of 8 two cc's per second. A 60 cc syringe is emptied in about
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9 30 seconds. 10 Q And did you choose a 12-second mean transit time from 11 the femoral vein to the heart? 12 A Yes. 13 Q And why did you choose that? 14 A That was based on the diameter of the vena cava 15 and the length of the vena cava giving a volume of 16 approximately 600 cc's. And that half of the cardiac 17 output would be going through the vena cava. You have to 18 realize that the vena cava picks up speed as it gets closer 19 to the heart, so it would probably be less than half the 20 cardiac output at the beginning and more than half at the 21 end, but on average it should be about half. 22 Q And do you assume normal cardiac output of five liters 23 per minute? 24 A Yes. 25 Q Why?
227
1 A This is based on my own experiments. When we looked 2 at individuals very carefully in pharmacokinetic studies, 3 this was a resting male around 80 kilos has a cardiac 4 output at rest of approximately five liters per minute. 5 Q And you assumed about an 80, 82 kilogram healthy male 6 inmate? 7 A Yes. My experiment actually I believe was 82 and I 8 think Dr. Dershwitz is assuming 80 kilos. There would be 9 really no difference between the two. 10 Q And do you assume essential blood volume of 2.5 11 liters?
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12 A Yes.

13 Q Why do you assume that blood volume?

14 A Approximately a quarter to a third or even half of the

15 blood volume can be in the thorax. And certainly when

16 someone is recumbent that number goes higher.

17

The other thing you have to understand is when

18 I am modeling thiopental, it's more than just the blood

19 volume. There would be an interaction of the drug. It

20 diffuses into the lung on its passage through the lung and

21 it would pick up an additional volume there, so there's an

22 additional 500 cc's.

23 Q So in your medical opinion, does Missouri's injection

24 times allow enough time for the thiopental to take full

25 effect before the potassium chloride enters the veins?

228

1 A No. 2 Q And in your medical opinion, do you think the lethal 3 injection procedure causes significant risk of unnecessary 4 pain? 5 A Yes, I do. 6 Q And if Missouri waited another two minutes after 7 injecting the thiopental before injecting the next drug, 8 could it substantially reduce the risk of pain? 9 A Very much so, yes. 10 Q And are there any drawbacks in waiting this additional 11 time to allow the thiopental to take effect? 12 A None that I can think of. 13 Q In your work as an anesthesiologist, do you place 14 central lines?

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15 A Yes, I do. 16 Q And in your work as an anesthesiologist, do you make 17 decisions about whether to place a central line or 18 peripheral line? 19 A Yes. 20 Q Are you aware that Missouri injects these chemicals 21 through a femoral line? 22 A Yes. 23 Q Would you ever select a femoral line as your first 24 option for injecting these drugs if the peripheral veins 25 were not compromised?
229
1 A No, I would not. 2 Q Does the femoral line create the possibility of more 3 complications than the peripheral line? 4 A Yes. 5 Q Can these complications be painful? 6 A Yes. 7 Q Can some of these complications be very painful? 8 A I believe so, yes. 9 Q How often do these complications arise with femoral 10 insertions? 11 A I would say slightly less than 20 percent. 12 Q Do the drugs take effect much quicker if they are 13 injected into a femoral line rather than a peripheral line? 14 A No. 15 Q So does the femoral line injection make the thiopental 16 take effect more quickly than with a peripheral injection 17 so that burst suppression will be achieved before the
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18 injection of the potassium chloride?

19 A No, not substantially.

20

MR. BERGER: One moment, Your Honor.

21

Let the record reflect that the photos from

22 Plaintiff's Exhibit 18 are on the screen.

23 Q (By Mr. Berger) Can you please describe what you see,

24 Dr. Henthorn?

25 A I believe this is a photo from the Johnston execution

230

1 and what I see is a line in the groin, in the right groin, 2 with quite a lot of blood on the field. If you notice 3 there's -- on the left there's a sponge that's almost 4 completely soaked, and it's soaked in bright red blood. 5 Also you note above the tip of catheter some bluish 6 discoloration and some swelling. 7 Q What do you think happened here, Dr. Henthorn? 8 A It's impossible to know for sure just by looking at 9 this one photo, but my best guess is that perhaps the 10 artery was punctured and the blood coming back was bright 11 red, and in a large amount, because the arteries are under 12 high pressure. 13 Q And what are you basing this view on? 14 A Experience, having seen arteries punctured in the 15 past. 16 Q Could this be painful? 17 A Yes, it can be painful. 18 Q Is this the kind of complication -- is this kind of 19 complication unusual with a femoral line insertion? 20 A I think this is one of the more common complications,

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21 because the femoral vein and the femoral artery run right 22 next to each other. It's very difficult to always be 23 certain when you're placing a needle in the groin that 24 you're going to hit the right structure. 25 Q Is this kind of complication possible with a
231
1 peripheral line insertion? 2 A No. 3 Q Do you see a hematoma in this picture? 4 A Well, I believe so. As I say, just to -- above the 5 catheter insertion site there is some purplish 6 discoloration and some swelling. 7 Q What makes you think that's a hematoma? 8 A Well, it's right where you put the needle, so it would 9 be likely that this would be a hematoma and not something 10 else, because if there was a hematoma it would be right 11 there. It's also because -- what you usually see with a 12 hematoma is some discoloration under the skin and some 13 swelling. This seems to have both. 14 Q And in addition to the complications you have just 15 discussed as probable in the Johnston photo, what other 16 complications can arise from a femoral line insertion? 17 A Well, first of all, I want to say I'm not an expert on 18 femoral line insertion. Most of my insertions are higher 19 up in the neck or the subclavian. But as with any line 20 placement, there's the potential for hitting an artery and 21 causing a hematoma. There is potential for hitting the 22 vein and going through the back wall and causing a 23 hematoma. That can be what this is from as well. Less
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24 likely would be hitting the femoral nerve. And as you can 25 also tell, we're very close, within an inch or two, of the
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1 pelvis, and it's possible to place the needle into the

2 pelvic structure such as the bladder, et cetera.

3 Q And once again, how likely collectively are these

4 complications?

5 A I believe there's a paper in -- well, I have seen a

6 paper in the Journal of American Medical Association by

7 More - ray (phonetic spelling), and it's approximately one

8 in six.

9 Q And are these complications painful?

10 A Some of them can be. I mean, a hematoma is going to

11 cause pain just from the swelling alone.

12 Q And are some of them very painful?

13 A I have seen people require treatment of these

14 hematomas with painkillers. So I would say that's pretty

15 painful.

16

MR. BERGER: One moment.

17

No further questions, Your Honor.

18 CROSS-EXAMINATION BY MR. PRITCHETT:

19 Q Good afternoon, Doctor. My Name is Mike Pritchett.

20 I'm here representing the state in this case.

21 A Okay. Thank you.

22 Q I'd like to start out, if I could, with some areas

23 where I think you will agree with Dr. Dershwitz' position.

24 Don't you agree that the administration of five grams of

25 thiopental will produce unconsciousness in any human being

233

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1 for many hours? 2 A I would agree with the first part of the statement, 3 in virtually every individual. And I would take some 4 exception with the duration, if you're defining it based 5 on burst suppression vs. some lesser definition of 6 consciousness, unconsciousness, but otherwise, yes, for 7 a very long time. 8 Q Could you tell us how long you think burst suppression 9 would last with a five-gram dose of thiopental? 10 A Well, one way to approach that very quickly is knowing 11 the half-life of the drug is six hours and you're looking 12 at two decrements of half life. Of course, there's some 13 redistribution going on as well. So in my best opinion 14 without having performed the simulation, I don't have a 15 computer in front of me so I don't know, but I would say it 16 would be 45 minutes at least. 17 Q Wouldn't you agree also that a dose down even as low 18 as 1.67 grams will produce a state of deep unconsciousness 19 in almost all people? 20 A Yes, it would produce even burst suppression in almost 21 everyone. 22 Q And is it correct to say that you have no argument 23 with the affidavit that's been provided by Dr. Dershwitz 24 about the time frame of about four minutes after the 25 administration of the thiopental until -- well, through the
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1 next five hours? 2 A Yes, except for the definition of unconsciousness.
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3 That's going to affect the calculation slightly.

4 Q Okay. But as a general matter, the --

5 A As a general matter, he did a good job on that.

6 Q So your conclusion, I think, is that an administration

7 of five grams of thiopental will obtain burst suppression

8 after what amount of time? Let's assume your best guess of

9 50 degree cardiac output reduction.

10 A Well, again, I would like to refer to the graph, but

11 I'm going to say that it was just under -- around two

12 minutes.

13 Q Would you like to see the graph?

14 A That would be great. Thank you.

15 Q I'm referring to what I think is Figure 4.

16

MR. PRITCHETT: If we could either get a copy for

17 the doctor or call it up on the machine. It's the one

18 titled, I think, onset of thiopental effect, probability of

19 effect, 5.0 gram dose.

20 Q And we're looking at -- I'm looking at your view as to

21 when burst suppression, the 95 percent chance of burst

22 suppression, is likely to happen on your best guess with 50

23 percent cardiac output reduction.

24 A It looks like about a minute and 40 seconds.

25 Q And in order for us to trace that, we would go to the

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1 line that equates to the 50 percent baseline, which is the 2 third one from the right? 3 A Correct. 4 Q And we would just follow up that line until we hit 5 95 percent on the left axis. Am I right?

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6 A You're right. 7 Q Thank you. And then with the five-gram dose of 8 thiopental, we're presuming burst suppression would last, 9 did you tell us 45 minutes at least? 10 A At a minimum. 11 Q At a minimum? 12 A I think it was probably closer to Dr. Dershwitz' 13 calculations. 14 Q You have chosen burst suppression as the level of 15 unconsciousness that should be achieved before the 16 administration of potassium chloride, am I correct? 17 A Correct. 18 Q Burst suppression is a very deep state of 19 unconsciousness, isn't it? 20 A Yes. It's complete unconsciousness. 21 Q Isn't it true that burst suppression is even a deeper 22 level of unconsciousness than is achieved during -- of a 23 person undergoing surgical procedures? 24 A Yes. It can be reached at times, but it's not -25 certainly isn't the target.
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1 Q So in surgical procedures where a person is being cut 2 into, the target is not as low as burst suppression? 3 A Correct. But you have to realize that in that 4 situation there's an expert in anesthesia monitoring very 5 closely. In the absence of monitors or someone who is an 6 expert, I think a higher level is necessary. 7 Q Once you have reached burst suppression, which you 8 have indicated with your best estimate of the 50 percent
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9 cardiac reduction occurring at somewhere around a minute 10 and I think you said -- somewhere between a minute and a 11 half and two minutes? 12 A Right. 13 Q Once you hit burst suppression, even under your own 14 definition of the appropriate state of consciousness, is 15 there any need at that point to have any monitoring of 16 the level of consciousness if the person is going to be 17 at burst suppression for the next 45 minutes to a few 18 hours? 19 A Well, what you would also need is some determination 20 that the effect is occurring, so you would need to see the 21 trajectory of the effect. So to be sure the drug has 22 reached the brain, you need to see some effect. Once you 23 have seen some effect, then I believe waiting the 24 appropriate amount of time would be reasonable. 25 Q So assuming the individual, the condemned prisoner,
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1 actually gets a five-gram dose, once you get burst 2 suppression, once the condemned prisoner gets to burst 3 suppression, there's no longer any need to monitor. It's 4 just a matter of realizing whether the inmate is at that 5 level? 6 A Correct. Because that would last a long time. 7 Q Do you have any reason to believe that in executions 8 in Missouri, whatever dose of thiopental has been given, 9 it's not fully being entered into the inmate's circulatory 10 system? 11 A I haven't seen evidence actually one way or the other.
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12 Q Okay. So you wouldn't tell me -- you wouldn't argue 13 with me that it's not happening, but you couldn't tell me 14 you're sure it is happening. 15 A Exactly. 16 Q You have indicated that Dr. Dershwitz chose a level of 17 unconsciousness that I think you call the voice command 18 level. 19 A Correct. 20 Q Were you able -- did you read the testimony from the 21 trial at the end -- the first part of this trial at the end 22 of January from Dr. Dershwitz? 23 A I did, yes. 24 Q And an affidavit was presented. And is it your 25 recollection -- isn't it your recollection that his
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1 statements with regard to how long a person would be 2 unconscious would -- the person would be unconscious and 3 unable to experience pain? 4 A Correct. 5 Q So a level of unable to experience pain is a level 6 below voice command unconsciousness, isn't it? 7 A Maybe I answered that incorrectly. 8 Q Okay. Do you have a recollection of the framing of 9 those questions as to whether it was -10 A Well, what I have a recollection of are his graphs, 11 and what he shows on the graphs is that the 50 percent 12 probability corresponds to the effect side concentration or 13 brain level that would be required to produce loss of voice 14 command. So I'm looking at the actual data he has in his
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15 graph to form that opinion. I really wasn't thinking

16 exactly the wording that he said.

17 Q Okay. But we can rely on what the transcript says for

18 that, presumably.

19

In terms of being able to monitor the condemned

20 inmate, you gave us some opinions based on a couple of

21 still photographs. Were you able to have the opportunity

22 to see the videotape of the execution room that was taken a

23 few weeks ago?

24 A No.

25 Q One of the photographs you saw was looking through the

239

1 window kind of straight on at not an inmate but a person on

2 the bed.

3

MR. PRITCHETT: And if you wouldn't mind, I know

4 there's two photographs that you have used, still photos.

5 There was one looking straight through the window and then

6 there was one off to the side. Yeah, this photograph here.

7 Q (By Mr. Pritchett) That's looking straight down from

8 the top of the person's head through the window, correct?

9 A Yes.

10 Q And then the other photograph, if you wouldn't mind,

11 that's a side view, and I understand that from the still

12 photograph we really can't see very well, but isn't this an

13 angle from which the aspect of an individual in that bed

14 could be determined by a person looking at him?

15 A The aspect perhaps, yes.

16 Q Isn't that one of the things that an anesthesiologist

17 would do in assessing anesthetic depth?

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18 A It's one of the very lowest things that we would use. 19 It's very unreliable. 20 Q But it is a step? 21 A It's a step. We use any information we can get. 22 Q You have had to make some assumptions, haven't you, 23 with regard to the effect of huge doses, two and a half to 24 five grams of thiopental, on human cardiac output? 25 A Yes.
240

1 Q Okay. Isn't it true that the magnitude of the effect

2 of these kinds of large doses of thiopental is something

3 that has not been well researched?

4 A Correct.

5 Q And the effect of these large doses is poorly

6 documented?

7 A Absolutely.

8 Q So isn't actually the degree to which the heart will

9 be affected in the minutes following a massive dose of

10 thiopental a matter of some speculation?

11 A Yes, and that's why I provided various curves.

12 Q Okay. And isn't it also true that the time it takes

13 for a massive dose of thiopental to begin to decrease

14 cardiac output is a matter of some speculation as well?

15 A Well, it would be the same -- the way I approached

16 this was that the material will be in the arteries for sure

17 by the time I started modeling at one minute.

18

And also I have had many occasions to have

19 patients on continuous cardiac output monitors and watch

20 what happens with clinical doses, and the changes begin at

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21 45 seconds or a minute or so. So it's not unreasonable to 22 use that as a basis. 23 Q You're making some extrapolations, though, without any 24 hard data. 25 A Absolutely.
241

1 Q So at least to some degree your conclusions here with

2 regard to the amount of time it would take for thiopental

3 to diffuse through the brain is based on some speculation?

4 A Well, there would be some -- yes, there is some

5 speculation, but as I said, I have seen clinical doses do

6 this in healthy people. And also we can see from the

7 potassium chloride injection and when it starts to have an

8 effect on the circulation. It's in the right ballpark.

9 Q Now, next I'd like to look at a couple of the figures

10 that you have done and if you would bear with me. The

11 numbers of the figures have changed a bit from the initial

12 report you gave so it's going to take me a minute to try to

13 sort out which is which.

14

What was Figure 6, assuming a 2.5 gram dose of

15 thiopental, I think is Figure 5 now. If we could call that

16 up, please.

17

Even with a dose of thiopental at the 2.5 gram

18 dose reduces cardiac output to 25 percent of the baseline

19 of normal, doesn't your graph show that a 95 percent chance

20 of burst suppression still occurs at something just over

21 two and a half minutes?

22 A Oh, okay. Yes.

23 Q And did you do, and I don't know that this was

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24 introduced, did you do an approximation of a 1.67 gram dose 25 of thiopental?
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1 A Yes, I did. 2 Q Do you recall when burst suppression on that occurred 3 with regard to the maximum reduction of 75 percent of 4 normal? 5 A No, not specifically, but I would assume it would be 6 later than even two and a half minutes. What I believe it 7 was very close to was that maximum concentration had to be 8 reached for a dose in that range, so -- when the peak 9 effect occurs with thiopental, so I'm guessing it's very 10 close to three minutes. 11 Q Okay. Still something short of three minutes, though? 12 A Probably, yes. 13 Q I guess since we do have this as an exhibit, the 14 2.0 gram dose, 95 percent burst suppression -15 A Go to the next one. 16 Q Even at the maximum effect it might have a 75 percent 17 reduction, we're still hitting 95 percent with a two-gram 18 dose short of three minutes, aren't we? 19 A Yes. 20 Q Would it be possible to track the effect of 21 thiopental, a large dose of thiopental by means of the 22 EKG strips you've seen? 23 A The EKGs, no. Well, I answered very rapidly and said 24 no, but one of the things you can see when there's a 25 cardiac effect of thiopental is an increase in the heart
243
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1 rate as it is compensating for a decrease in cardiac 2 output, but it's not reliable. You'll see it sometimes but 3 not others. But I do recollect seeing that on one or two 4 of the inmates. 5 Q Would that compensate, a more rapid heart beat, for 6 the suppression of the function? 7 A Exactly. Cardiac output is a function of stroke 8 volume, which is the force of the contraction. 9 Q If the heart sped up as a result, the heart rate 10 increased, would that alter your conclusions and your 11 figures? 12 A No. It would indicate to me there was a reduction 13 in cardiac output, there was an attempt by the body to 14 compensate. It probably can't compensate for something 15 that large, but it was trying. It detected it. 16 Q Are you aware of a recent execution that occurred in 17 North Carolina in which the condemned prisoner was 18 monitored by means of a BIS monitor? 19 A I was made aware of that by Mr. Berger. 20 Q And can you tell us what a BIS monitor is? 21 A It's a bispectral indexed specroscopy, I believe. 22 Q What are they used for, generally? 23 A They're used during anesthesia to monitor depth of 24 anesthesia. 25 Q Is it a scale 0 to 100?
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1 A It is, but it's a nonlinear scale. 2 Q Okay. By that, I understand it makes sort of an
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3 S-curve? 4 A Well, that, and I guess the other thing to say, it's a 5 nonparametric, and what I mean by that, a value of 30 is 6 not half the value of 60. 7 Q I understand. 8 A Okay. 9 Q At what level in surgery is targeted on a BIS monitor? 10 A Well, it would vary based on the stimulus being used. 11 Q Let's say a hernia operation. 12 A We probably would be in the 40 or 50 range. 13 Q Does burst suppression equate to a number on the 14 BIS monitor? 15 A Not really. Although there is some question of 16 whether it can recognize a flat line EEG. When zero pops 17 up it might mean that there's an isoelectric EEG, but it's 18 not designed for that. 19 Q Are you aware of the readings of the BIS monitor after 20 the thiopental was injected into the inmate in North 21 Carolina? 22 A No. 23 Q If it had been reported that the BIS monitor dropped 24 to near zero by the time the thiopental and the following 25 flush was fully administered, would that cause you to
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1 question some of the assumptions you have made and your 2 conclusions? 3 A No, because I would have to see what the timings of 4 those injections were. It's very possible a slow 5 injection, over two minutes, would make perfect sense.
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6 Q Have you reviewed, as far as you know, all the expert 7 reports that have been generated in this case, both by the 8 defense and by the plaintiff? 9 A No, I haven't seen Dr. Heath's or Dr. Johnson's. 10 Q Have you seen a report of Dr. Sri Melathil? 11 A No. 12 Q Are you aware that his view was a decline in the level 13 of thiopental in the brain is quite rapid and his concern 14 was the diminishment of thiopental in the brain instead of 15 the onset of the thiopental? 16 A I wasn't aware of that. I can understand where that 17 comes from because that's from clinical teaching and 18 clinical doses. I think, yes, there would be a very rapid 19 drop-off. If you look at my Figure 1, if you would look at 20 that, I think you'll see the reason for it. And -- but 21 basically what's going to happen is that concentrations are 22 going to flow across a gradient. And initially during the 23 onset, the arterial concentrations are much higher in the 24 tissue. Drugs goes into the tissue including the brain. 25 As the drug distributes to various body tissues and is
246

1 metabolized, it will start flowing back, and that's what

2 removes the effect.

3

However, if that flow-back starts at a very high

4 concentration, you'll still be unconscious even though that

5 flow is out of the brain and into the blood.

6 Q So huge doses like we're talking about will last --

7 A He's right, but without him doing those calculations

8 he's probably a little in the dark.

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9 Q So the effect of a massive dose, again somewhere 10 between 45 seconds to hours? 11 A 45 minutes to hours. 12 Q Execuse me. 45 minutes. Thank you. 45 minutes to 13 hours. 14 A Uh-huh. 15 Q You were also referred to a photograph of the femoral 16 catheter in Mr. Johnston at his execution. I don't know if 17 you mentioned it in testimony. In your report you noted 18 the brightness of the blood. Couldn't that be an effect of 19 the imaging -20 A Yes. 21 Q -- of the photograph? 22 A Could be. 23 Q And wouldn't blood, even venous blood, once it hits 24 oxygen in the air, become redder than it is inside the 25 body?
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1 A It could, but you would see gradations depending on 2 its depth in the sponge. 3 Q And the bluish area you noted in the photograph of 4 Mr. Johnston, couldn't the coloring be also an effect of 5 the photograph imaging program that was used? 6 A It could be. I'm not an expert on these things so, I 7 mean, in aggregate, as I said, those things suggested to me 8 that's what happened. 9 Q Your level of certainty, though, it sounded like was 10 not very great just from looking at the picture; is that 11 correct?
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12 A I would say it's -- yeah, I would say it's about 13 50/50, in my mind, looking at the photograph. 14 Q Is it impossible to determine from the photograph 15 whether there might have been an insertion into an artery 16 in Mr. Johnston's case? 17 A That's correct, it is impossible to tell exactly where 18 that insertion was made. 19 Q You noted a paper with regard to femoral vein access 20 that set out a 17 percent complication rate with regard to 21 central venous access. Was it just femoral vein access? 22 A It looked at all of them and it categorized the risk 23 according to where. 24 Q Was the 17 percent complication rate for femoral 25 access?
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1 A I believe it was. 2 Q Does that complication rate include complications that 3 would have resulted from persons new to the procedure and 4 inexperienced in the placement of the lines? 5 A I would have to go back and check the methods very 6 carefully to be sure, but it may have been at a teaching 7 hospital and it may have happened that way, yes. 8 Q As far as you know, are there any papers reporting 9 complication rates with regard to experienced physicians 10 who have made femoral IV access a regular part of their 11 practice? 12 A No, that's not my area of expertise. 13 Q You indicated early in your testimony that a problem 14 with delivery of thiopental into the body so we get the
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15 full effect of it, one thing could be an impact of 16 restraints on the body which is possible with an 17 execution. Would the restraints have an effect if it's 18 peripheral access through the arm, assuming straps across 19 the torso? 20 A It could, yes. 21 Q Wouldn't that restraint effect be less with femoral 22 access? 23 A It might. Would depend on where the other restraints 24 were and how tight they were. If they were across the 25 abdomen it could compress the vena cava.
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1 Q Would the effect of a bit of compression on the vena 2 cava be less as a percentage of outflow than compression of 3 say a peripheral vein? 4 A Certainly peripheral veins are easier to compress. 5 Q With regard to potential complications and any IV 6 access, isn't migration of the catheter a problem; its 7 leaving the vein that it's meant to be inserted into? 8 A It's a very rare complication. 9 Q Isn't it more likely to happen in a peripheral access 10 than it is in a femoral central line access? 11 A Again, this is not an area of great interest to me and 12 I haven't read the literature on that so I can't give you a 13 heads-up answer. 14 Q You noted a complication in your report being 15 potential delivery of the drugs into subcutaneous tissue 16 rather than into the vein. 17 A Uh-huh.
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18 Q Isn't that kind of complication less likely to happen 19 with femoral access? 20 A Well, yes and no. I have seen many instances where 21 because of where the femoral vein is and where the central 22 circulation is, you can't always observe extravasation, so 23 it could be happening but you don't see it. Certainly with 24 a peripheral if it happens, you know it's happening. You 25 can see it.
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1 Q But you're not aware of the differences and the 2 likelihood of it happening peripheral vein vs. central 3 vein? 4 A I can't even imagine someone setting out to study 5 that. That would be a tough question to try to collect 6 data on and be fair. 7 Q The output of a femoral IV is closer to the heart than 8 the peripheral access, isn't it? 9 A Would you restate that? 10 Q I'll try. It wasn't a very good question. The 11 catheter in a femoral IV, where it has the output where the 12 drugs come in, isn't that area closer to the heart than 13 where the drugs first enter the bloodstream in a peripheral 14 IV? 15 A The answer to that would be not necessarily, because 16 what we're looking at is time. The flow is less in the 17 arm, but the volume is much greater in the vena cava. So 18 the time it takes is the -- is the volume divided by the 19 flow. So both factor in. 20 Q And those factors work different ways?
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21 A We have done many studies where we've given drugs 22 peripherally and if it has a good flush behind it, it 23 actually can centralize, if you will, the drug. 24 Q Doesn't that kind of occur automatically with central 25 venous access through the femoral vein?
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1 A Yes and no. Not necessarily, because there was no 2 baseline infusion going here, so it was totally reliant on 3 the syringe. Whereas if it was given into a free-flowing 4 IV, that's not only going to bring it into the circulation 5 quick, it's going to push it up the circulation. So my 6 answer is a little equivocal because I'm not a hundred 7 percent sure that you can say one way or the other, not 8 knowing all the facts. 9 Q Do you insert femoral IVs on occasion? 10 A Very rarely. 11 Q What's your understanding as to the method by which a 12 physician would determine where the vein is? Isn't there 13 an anatomical landmark, the femoral artery? 14 A There would be the same as we do for internal jugular 15 catheterization of the neck. The old way of doing things 16 was to feel the artery and then go adjacent. In the case 17 of the femoral vein, it's just medial. 18 Q It's just medial? 19 A Uh-huh. 20 Q In other words, it's next to -21 A Next to. 22 Q -- the femoral artery? 23 A Right. So if you had your finger on the femoral
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24 artery you would reduce your chances of hitting the femoral 25 artery and increase your chances of hitting the femoral
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1 vein, although I will say that many places now are moving

2 towards ultrasound imaging, so there's a greater degree of

3 certainty.

4 Q Is that true of -- you said many places. Is that true

5 of every medical facility?

6 A No.

7 Q And the femoral vein is on the opposite side of the

8 femoral artery -- excuse me. The femoral nerve is on the

9 opposite side of the femoral artery than the femoral vein

10 is?

11 A Yes.

12 Q Isn't it true that femoral IVs are commonly inserted

13 into awake and unsedated patients?

14 A In my experience, they are usually sedated.

15 Q Okay. Nephrologists, isn't it true they commonly use

16 femoral vein IV access for kidney patients who haven't yet

17 gotten the shunt or the fistula, whatever it's called, for

18 common -- for periodic dialysis?

19

MR. BERGER: Objection, Your Honor. Beyond the

20 scope.

21

MR. PRITCHETT: I disagree, Judge. I think it

22 goes to the testimony we have had with regard to --

23

THE COURT: Objection is overruled.

24

MR. PRITCHETT: Thank you, Judge.

25 Q (By Mr. Pritchett) Nephrologists use femoral IV

253

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1 access at least on occasion for new patients going on

2 dialysis, don't they?

3 A Yes.

4 Q And isn't it common that those femoral IVs are placed

5 for dialysis with local anesthetic but without sedation?

6 A I don't have any direct knowledge of that. I'm not

7 with them when they place them.

8

MR. PRITCHETT: Thank you very much, Doctor. I

9 appreciate it. That's all I have at least for the moment.

10

And thank you for allowing me to use your high

11 tech equipment.

12

MR. HELLMAN: Sure thing.

13 REDIRECT EXAMINATION BY MR. BERGER:

14 Q I have a few questions for you, Dr. Henthorn.

15

Are all of your graphs based on the assumptions

16 that the full dose of the amount considered will make it

17 into the venous system?

18 A Yes, they are.

19 Q So if some of the prepared dose did not make it into

20 the veins, would the graph conclusions hold true?

21 A No.

22

MR. PRITCHETT: Objection. I think this is

23 beyond the scope of the direct and cross.

24

THE COURT: Well, I don't think it's outside the

25 spirit of either. Objection is overruled.

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1 Q (By Mr. Berger) And if in fact less than the prepared 2 dose made it into the veins, what effect would that have on

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3 when the thiopental takes effect? 4 A Well, it would depend on the percentage. If you 5 consider a reasonably close percentage, or -- of the dose, 6 then it would only slow it down. If it was much smaller, 7 you might not get the effect you're looking for. 8 Q And are all the opinions you are giving here given to 9 a reasonable degree of medical certainty? 10 A Yes. 11 Q Why is burst suppression appropriate for executions 12 even when it's not always used for surgery? 13 A The reason is that since there is no one monitoring 14 the onset of anesthesia, there is the possibility that when 15 something painful happens, such as injecting potassium 16 chloride, that there will be movement, there could be a 17 reaction. And I think it's very important to be able to 18 say that this reaction did not involve consciousness. It 19 could be simply a reflex lower in the system. 20 Q In surgery are you also concerned with the patient 21 waking up? 22 A Yes. 23 Q If you were not -- if you were concerned only about 24 pain and not about waking a patient up during surgery, 25 would burst suppression be the level of anesthesia one
255
1 would want to use? In other words, in the execution 2 setting, do those factors render burst suppression more 3 appropriate? 4 A Well, I think the process is very similar. I think 5 the difference is there is no one monitoring to say whether
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6 or not this is conscious or not conscious. If there is 7 burst suppression, there's no consciousness. 8 Q And without monitoring the depth of anesthesia, can 9 you be certain that the inmate will be properly 10 anesthetized? 11 A I don't believe so, no. 12 Q Is there such a thing as certainty that drugs are 13 delivered successfully? 14 A I don't -- I don't believe so, no. 15 Q And is this lack of certainty one of the reasons why 16 one needs to monitor the delivery of the drugs and the 17 depth of anesthesia? 18 A Oh, absolutely. If you look at the ASA -- that's our 19 society's recent guidelines on awareness, the first thing 20 to consider is are the drugs being delivered the way you 21 think they are, are your infusions working. Is the gas on, 22 if you want -- if you're using that. So I think that is 23 always on our mind, because it does happen. 24 Q Can you properly judge anesthetic depth based on the 25 view that you saw through the window in those figures?
256
1 A No. 2 Q When Mr. Pritchett was examining you, you said that 3 the aspect is a step in monitoring anesthetic depth. Is 4 that step enough to monitor anesthetic depth? 5 A No, it's not. 6 Q In discussing his graphs, Dr. Dershwitz stated, quote, 7 "So in a typical experiment where one is giving medication 8 to try to determine if a person is conscious, the person
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9 would be asked to perform a simple task. If they cannot

10 perform the task, they are deemed as unconscious." What

11 does that tell you about the measure of consciousness used

12 by Dr. Dershwitz in his graphs?

13 A Well, it indicates that is the end point that he was

14 modeling was loss of the voice command.

15 Q Can one feel pain at that level?

16 A Yes.

17 Q Then in the transcript Dr. Dershwitz says, "When one

18 considers the very, very large dose and the long duration

19 of the effects that occurs when one is given five grams of

20 thiopental, the effect is complete, total inability to

21 interact with the environment or perceive one's environment

22 for a very long time."

23

Assuming successful delivery into the

24 circulation, Dr. Henthorn, do you agree?

25 A Well, to a certain point he's absolutely right. I

257

1 think the point that we -- what's really disturbing here 2 is the onset time. That seems to be just overlooked 3 completely in these Missouri executions. The timing is so 4 rapid that there's no time for that to happen. But if you 5 give it enough time, then I would say Dr. Dershwitz' 6 conclusions are correct. 7 Q But at the level of consciousness used by 8 Dr. Dershwitz, that is inability to correctly respond to 9 verbal commands, can people feel pain? 10 A Yes, but you have to -- he was -- he selected -- he's 11 doing simply the very thing -- something very similar to

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12 what I'm doing, which is simulating the pharmacokinetics, 13 and he's selecting a blood level that is less than the one 14 I'm selecting. But in either case with a five-gram dose 15 both brain levels are achieved. 16 Q But they would not be -- would they be achieved 17 immediately? 18 A No. 19 Q And would the level that he is selecting take effect 20 quicker than the level you are selecting? 21 A Yes. 22 Q And if the level he has selected has taken effect but 23 the level that you have selected has not yet taken effect, 24 can a person experience pain? 25 A Absolutely.
258

1 Q Why do you --

2

THE COURT: Mr. Berger, it sounds like we are

3 getting back into redirect again. Let's stick with the

4 cross and wrap this up.

5

MR. BERGER: Okay, Your Honor.

6 Q (By Mr. Berger) Why do you select 50 to 75 percent as

7 the most likely reduction in cardiac output?

8 A Because this fits with anything in the literature.

9 It also fits with what I have observed when I have had

10 continuous monitors of cardiac output. And in fact,

11 Dr. Dershwitz basically believes the exact same thing.

12 Q And in your clinical practice, do smaller doses of

13 thiopental also have an effect on cardiac output?

14 A Yes, they do.

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15 Q Have you tested the extrapolations you make on the 16 scientific community, the extrapolations you make in your 17 model that Mr. Pritchett questioned you about? 18 A Yes. 19 Q And have you revised your conclusions over the years 20 as you understand it better? 21 A Oh, absolutely, yes. 22 Q Dr. Henthorn, Mr. Pritchett asked you about the BIS 23 monitor. Is the BIS monitor a reliable indicator of deep 24 unconsciousness? 25 A It is not -- the literature does not support that it
259
1 is reliable. 2 Q What are some of the problems of the BIS monitor? 3 A It does not predict what it is meant to predict, which 4 is awareness. It's -- it's useful. Some people believe 5 it's useful, but it's not an absolute measure, and for that 6 reason it was not included in the recent ASA guidelines 7 awareness. 8 Q Dr. Henthorn, is it possible for an anesthesiologist 9 or a pharmacokineticist who has not done the calculations 10 or the modeling that you have done to know when thiopental 11 will take effect? 12 A Well, they can rely on their empirical knowledge, but 13 I think when you're dealing with dose -- that's one of the 14 reasons you do pharmacokinetics is so that when you are 15 presented with a dose or a drug administration scheme that 16 you haven't performed, you can reasonably come up with what 17 will happen. It's predictive.
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18 Q Dr. Henthorn, Mr. Pritchett asked you some questions 19 about the photo of Mr. Johnston. Was your view that this 20 is a hematoma based just on the color of the blood? 21 A No. 22 Q Was it based on a number of factors? 23 A Yes. 24 Q What were those factors? 25 A It was the proximity -- it was the blue discoloration
260

1 under the skin. There was swelling in the skin and it was

2 proximate to the insertion site.

3 Q Would you ever choose to deliver these drugs through

4 the femoral vein when peripheral access is available?

5 A No.

6 Q Based on your review of the Missouri execution

7 records, does potassium chloride enter the veins at a

8 minute and a half?

9 A Yes.

10 Q And would thiopental likely have taken effect yet,

11 based on any of the doses John Doe One says Missouri uses?

12 A No.

13

MR. BERGER: One moment, Your Honor.

14

No further questions, Your Honor.

15

MR. PRITCHETT: I think one, Judge.

16 RECROSS-EXAMINATION BY MR. PRITCHETT:

17 Q We have talked about voice command level of

18 unconsciousness and burst suppression level of

19 unconsciousness. Is there some level of unconsciousness in

20 between those two poles, let's call them, where the person

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21 who is receiving the thiopental will not feel pain?

22 A Probably there would be, but it's a gray area. You

23 don't know unless there's someone there monitoring. That's

24 my point.

25

MR. PRITCHETT: Thank you.

261

1

MR. BERGER: Your Honor, may I ask one question

2 in response?

3

THE COURT: Go ahead.

4 FURTHER REDIRECT EXAMINATION BY MR. BERGER:

5 Q Dr. Henthorn, if a patient or an inmate is not at

6 burst suppression, is it possible for them to feel pain?

7 A Yes.

8

MR. BERGER: Thank you.

9

MR. PRITCHETT: Nothing further, Judge.

10

THE COURT: We have heard that one a couple

11 times.

12

Thank you, Doctor. You can step down.

13

THE WITNESS: Thank you.

14

THE COURT: It's my understanding that other than

15 the Doe witnesses, this is plaintiff's case. Is that

16 correct?

17

MR. HELLMAN: Those are our witnesses who are

18 present, Your Honor.

19

THE COURT: All right. Then we'll resume

20 tomorrow at 9 o'clock and the defense will have an

21 opportunity to have its witnesses present and ready to go.

22 Okay?

23

MR. PRITCHETT: Yes, Judge.

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24

25

(Adjourned to Tuesday, June 13, 2006)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

MICHAEL TAYLOR, Plaintiff,
vs. LARRY CRAWFORD, et al.,
Defendant.

) ) ) ) Case No. ) 05-4173-CV-S-FJG ) ) ) JUNE 13, 2006 )

VOLUME III PAGES 262 - 395

TRANSCRIPT OF BENCH TRIAL PROCEEDINGS

BEFORE THE HONORABLE FERNANDO J. GAITAN, JR. U.S. DISTRICT JUDGE

For the Plaintiff: For the Defendants:

MS. GINGER D. ANDERS MR. ERIC BERGER MR. MATTHEW S. HELLMAN Jenner & Block, LLP 601 13th Street NW Washington DC 20005
and MR. JOHN WILLIAM SIMON 2683 South Big Bend Blvd. St. Louis, MO 63143-2100
MR. MICHAEL PRITCHETT MR. STEVEN HAWKE Missouri Attorney General's Office P.O. Box 899 Jefferson City, MO 65102

Donna M. Turner RMR U.S. Court Reporter, Room 7552 Charles Evans Whittaker Courthouse
400 East Ninth Street Kansas City, MO 64106 (816) 512-5641

I N D E X
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JUNE 12, 2006

DR. MARK HEATH

Direct Examination by Ms. Anders

9

Cross-examination by Mr. Hawke

86

Redirect Examination by Ms. Anders

134

DR. STEPHEN JOHNSON

Direct Examination by Mr. Hellman

137

Cross-examination by Mr. Hawke

169

Redirect Examination by Mr. Hellman

185

DR. THOMAS HENTHORN

Direct Examination by Mr. Berger

188

Cross-examination by Mr. Pritchett

232

Redirect Examination by Mr. Berger

253

Recross-examination by Mr. Pritchett

260

JUNE 13, 2006

262

DR. MARK DERSHWITZ

Direct Examination by Mr. Pritchett

262

Cross-examiation by Ms. Anders

301

Redirect Examination by Mr. Pritchett

332

Recross-examination by Mr. Anders

338

TERRY MOORE

Direct Examination by Mr. Pritchett

340

Cross-examination by Mr. Berger

348

LARRY CRAWFORD

Direct Examination by Mr. Pritchett

363

Cross-examination by Mr. Hellman

374

Redirect Examination by Mr. Pritchett

393

EXHIBIT INDEX

PLAINTIFF'S DESCRIPTION

1 - 23 Discovery materials

24

Dr. Heath's CV

26

Print-out of package insert

28

Photo of triple lumen kit

29

Still picture of execution chamber

30

Still picture of execution chamber

RECEIVED 86 10 32 62 74 86

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31

Dr. Johnson's CV

140

32

Diagram of venous system

144

33

Demonstrative IV tubing & syringe kit

166

34

Dr. Henthorn's CV

188

35 & 36 Diagrams of circulatory system

192

39

Figure 1 prepared by Dr. Henthorn

201

40

Figure 2 prepared by Dr. Henthorn

206

41

Affidavit of Dr. Dershitz

209

42

Figure 3 prepared by Dr. Henthorn

210

43

Figure 4 prepared by Dr. Henthorn

214

44

Letter from State

219

45

Figure 5 prepared by Dr. Henthorn

220

46

Figure 6 prepared by Dr. Henthorn

222

47

Videotape of execution chamber

75

DEFT'S

2

Excerpt of Dr. Dershwitz' paper re BIS

277

* * * * * * *

262

1

TUESDAY, JUNE 13, 2006

2

THE COURT: Ready to go?

3

MR. PRITCHETT: Yes, Your Honor. Ready for me to

4 call my witness, Judge?

5

THE COURT: Certainly am.

6

MR. PRITCHETT: I call Dr. Mark Dershwitz to the

7 stand, please.

8 MARK DERSHWITZ, called as a witness on behalf of the

9 Defendant, being first duly sworn, testified:

10 DIRECT EXAMINATION BY MR. PRITCHETT:

11 Q Good morning, Doctor.

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12 A Good morning. 13 Q Would you state your name for the record, please. 14 A Mark Dershwitz. 15 Q What's your occupation, Dr. Dershwitz? 16 A I'm an anesthesiologist and faculty member at the 17 University of Massachusetts. 18 Q And have you testified already in this case at an 19 earlier stage? 20 A Yes, I have. 21 Q Just briefly tell us what your degrees are, if you 22 would, please. 23 A I have a bachelor's degree in chemistry and then 24 obtained my medical degree as well as a Ph.D in 25 pharmacology.
263
1 Q Where did those degrees come from? 2 A My graduate degree is from Oakland University in 3 Rochester, Michigan, and both my MD and Ph.D are from 4 Northwestern University. 5 Q Did you supply a copy of your CV at your earlier 6 testimony that we provided into evidence? 7 A Yes. 8 Q Now that we have reconvened this trial, additional 9 discovery has occurred. Have you had the opportunity to 10 review that additional discovery that's been provided by 11 both sides in this case? 12 A Yes. 13 Q And did this review include the post-remand discovery 14 responses of both Director Crawford as well as the John
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15 Does? 16 A Yes. 17 Q And did it also include a review of the deposition of 18 Dr. John Doe One? 19 A Yes. 20 Q So are you aware that the dose of thiopental used at 21 the last several executions in Missouri was not five grams 22 as we understood in January? 23 A Yes. 24 Q How, if at all -- excuse me. What is your 25 understanding of the amount of thiopental that was actually
264
1 given at the last several executions? 2 A I believe it was 2.5 grams. 3 Q How, if at all, does the administration of 2.5 grams 4 of thiopental the last few executions impact your opinions 5 regarding executions in Missouri? 6 A By decreasing the dose from five grams to 2.5 grams, 7 the probability of consciousness increases by a tiny and 8 minuscule amount. Other states use as little as two grams 9 of thiopental, and even in that situation the likelihood of 10 consciousness during the period of time that an execution 11 requires is a tiny fraction of one percent. 12 Q What's the key factor, in your opinion, regarding the 13 humaneness of executions in Missouri in particular and then 14 throughout the country in general? 15 A Well, in my opinion for an execution to be humane an 16 adequate dose of hypnotic agent like thiopental has to be 17 administered prior to the paralytic or the potassium
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18 chloride. And in the other states in which I have 19 performed calculations I would say that probably the 20 minimum acceptable dose would be 1.5 grams, and anything 21 above that is associated with diminishing likelihood of 22 consciousness. 23 Q Did your review of the new discovery in this case 24 alter your opinions that you gave back in January with 25 regard to the drugs used in Missouri and the dosages as
265
1 we now understand them? 2 A Well, I redid the calculations, and changing the 3 dose from five grams to 2.5 grams has a minuscule and not 4 clinically relevant effect on the probability of 5 consciousness throughout the duration of time that an 6 execution requires. 7 Q Did your review of the new discovery in the case alter 8 your opinions as given back in January with regard to the 9 use of the femoral catheter as a means of administration of 10 the drugs? 11 A No. 12 Q Can you explain why? 13 A Well, since the thiopental is given after the femoral 14 catheter is placed, the dose of thiopental itself has no 15 meaningful effect on the placement of the femoral catheter. 16 Q In reaching your conclusions as expressed in your 17 earlier testimony, what definition of unconsciousness were 18 you using? 19 A The definition of consciousness that I typically use 20 is that which is used as a standard in the field of
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21 anesthesiology when looking at the time course of the 22 production of unconsciousness during a clinical anesthesia, 23 and the end point is whether or not the person is capable 24 of consciously processing a verbal command. And so, 25 therefore, if the person is told raise your right arm or
266

1 raise your left leg, if they follow that command

2 appropriately they are deemed conscious. If they are

3 unable to follow that command, and the assumption is that

4 they are motivated to -- would be motivated to follow the

5 command if they could, if they could not follow that

6 command they would be deemed unconscious.

7 Q Why do you use this definition of consciousness vs.

8 unconsciousness, ability to respond accurately to verbal

9 commands?

10 A It is the most common end point used in research on

11 consciousness and unconsciousness in anesthesia. And, for

12 example, it is the end point that was used in the

13 development of the depth of anesthesia monitors that are

14 becoming more commonly used in anesthesia practice.

15 Q We'll get to that in a bit, but what's the name of the

16 monitor you're referring to?

17 A One of them is called the bispectral index monitor or

18 BIS monitor, but there are a number of other monitors made

19 by other companies also.

20 Q Because you use a definition of consciousness vs.

21 unconsciousness that concluded a person who can -- let me

22 back up and rephrase that.

23

When you used the BIS definition of consciousness

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24 vs. unconsciousness, does that mean that you concluded that 25 the person who has received thiopental remains at that
267
1 level of consciousness? 2 A No. That is the point at which they would lose 3 consciousness. And of course, consciousness can become 4 much deeper and have other end points, but that is a 5 readily measured end point. And for the purposes of 6 providing clinical anesthesia, it's a very clinically 7 meaningful end point, because in our practice we want to 8 make sure that the person is asleep, unable to process 9 information, which would mean in a clinical way they would 10 be unable to form a memory, which of course we would 11 consider to be very desirable. The inability to form a 12 memory would be very desirable in anesthesia. 13 Q So given a dose of thiopental at the level of 2.5, or 14 five grams if it makes a difference both ways, how quickly 15 is a person moving from the level of unconsciousness, 16 unable to respond accurately to voice commands, how quickly 17 does a person move from that stage to a deeper level of 18 unconsciousness? 19 A It actually happens very rapidly. The amount of 20 thiopental that it takes the average person to lose 21 consciousness is approximately 200 to 300 milligrams. And 22 once 200 to 300 milligrams are placed intravenously in the 23 body, loss of consciousness occurs typically in a matter of 24 20 to 30 seconds. As the dose is increased, the depth of 25 consciousness as well as the duration of unconsciousness
268
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1 continues to progress.

2 Q You said that at a level of two to 300 milligrams

3 of thiopental, it takes about I believe you said around

4 30 seconds?

5 A 20 to 30 seconds from the time 200 to 300 milligrams

6 reach the peripheral circulation through an intravenous

7 catheter.

8 Q How is it you are aware of that conclusion?

9 A Well, first of all, that is based on more than twenty

10 years of clinical experience of myself, as well as the

11 experience of many, many anesthesiologists, as well as

12 clinical studies that have been done using many different

13 measures of the depth of consciousness. Before we had

14 readily available EEG monitors, one of the ways that

15 patients were deemed to be unconscious is they would be

16 given, for instance, a syringe or a pencil to hold and told

17 hold on to this as long as you can, and when they dropped

18 it they were deemed to be unconscious. That was a

19 technique that was used, for instance, in the 1960s and

20 1970s.

21

And using that end point, and also using a

22 typical dose of the hypnotic agent, consciousness is lost

23 typically in 20 to 30 seconds from the time the drug

24 reaches the IV catheter.

25 Q Is there a fairly common medical practice that also

269

1 confirms your view, from a practical point of view, that 2 loss of consciousness occurs in 20 to 30 seconds?

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3 A Typically if we are inducing general anesthesia, 4 typically we wish to confirm that the patient is asleep 5 before giving, for instance, a paralytic drug or performing 6 a noxious stimulation, and clinically we may apply 7 observational techniques like speaking the person's name 8 and asking them to open their eyes for instance, or giving 9 them a command like take a deep breath. We are often 10 telling them to breathe deeply before they fall asleep, and 11 when they stop doing that volitionally, that's another way. 12 And then we can look for reflexes, like we take our finger 13 and gently stroke their eyelash and see if they still have 14 what we call a lid reflex and that's a normal response that 15 a person has to blink when their eyelash is stroked. 16 Q Is there a practice, though, in which general 17 anesthesia is induced and it's induced very quickly and 18 there is essentially no monitoring of the anesthetic depth? 19 A Yes. 20 Q What is that? 21 A That's called a rapid sequence induction, and in a 22 situation where we are concerned about the risk of 23 aspiration, which would mean passage of the abdominal 24 contents back into the throat and then going down the 25 trachea into the lung, certain patients are at higher risk
270
1 for this passive regurgitation and aspiration. Those 2 patients include patients who are having anesthesia who 3 have not been properly fasted; patients who have certain 4 anatomic abnormalities like a hiatal hernia; patients who 5 have a history of esophageal reflux; patients who have
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6 increased intra-abdominal pressure perhaps due to a tumor,

7 all of these people are at high risk for aspiration.

8

And during the period of time after they lose

9 consciousness and before we secure their airway with an

10 endotracheal tube, that is a period of time of great

11 vulnerability for aspiration to occur. So in order to

12 decrease this window of opportunity for aspiration to

13 occur, we perform what's called a rapid sequence induction.

14

And in that scenario we give the hypnotic agent,

15 like thiopental, followed by a paralytic agent immediately,

16 without assessing depth of anesthesia, followed by the --

17 a passage of about 30 seconds which is how long it takes

18 the paralytic agent in this case to work, and then the

19 insertion of the laryngoscope to visualize the airway and

20 then placement of the endotracheal tube.

21

So in the situation of a rapid sequence

22 induction, from the time we first begin administering the

23 hypnotic agent --

24 Q And what dose is typically used in the rapid sequence

25 induction of the hypnotic agent?

271

1 A If we were using thiopental as a hypnotic agent, a 2 typical dose would be 300 to 400 milligrams, and it would 3 take an average ten seconds to administer the thiopental, 4 five seconds to administer the paralytic agent, or less. 5 Waiting 20 to 30 seconds for the paralytic agent to begin, 6 and since this particular paralytic agent causes widespread 7 muscle twitching, we know when the paralytic agent is 8 working because it's very easily seen visually. At that

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9 point, we immediately put in the laryngoscope to visualize

10 the airway and put the endotracheal tube in.

11

So in this scenario we are instrumenting the

12 airway, which is very, very uncomfortable, well under a

13 minute after the thiopental administration was first

14 given. And based upon, you know, my extensive clinical

15 experience as well as the clinical experience of

16 essentially everybody who gives anesthesia, the likelihood

17 of awareness during this procedure is very, very small.

18 Q And we're talking about a time period between the

19 administration of the thiopental to the introduction of the

20 laryngoscope, how long between those two end points?

21 A Under a minute. Probably closer to 45 seconds.

22 Q And is there essentially any kind of monitoring of the

23 patient during the course of that time?

24 A Well, we would of course continue to monitor their

25 electrocardiogram and their heart rate and their oxygen

272

1 level because those are standard things that we monitor in 2 everybody. But as far as any attempt to monitor the depth 3 of anesthesia in a rapid sequence induction, that is not 4 done. And the assumption is made that the initial dose of 5 the hypnotic agent, like thiopental, is adequate to achieve 6 unconsciousness for the duration of the placement of the 7 endotracheal tube. 8 Q And I think this should be obvious, but that 9 assumption is one that has been confirmed at least in 10 your experience and the experience of your colleagues? 11 A Yes. It is certainly the standard description of how

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12 to perform a rapid sequence induction in our standard 13 textbooks. 14 Q Is the rapid sequence induction an uncommon procedure? 15 A No, not at all. It would be the standard way of 16 providing anesthesia for essentially everybody who is 17 having emergency or unscheduled surgery because most of 18 those patients are not properly fasted, and people who 19 complain of things like a hiatal hernia or gastro20 esophageal reflux, that represents a significant fraction 21 of the population. So people who undergo rapid sequence 22 induction, it's not the majority of anesthetics but it's a 23 significant minority. 24 Q Would you say it's a process that happens every day in 25 hospitals?
273
1 A Yes, every day in essentially every hospital in which 2 endotracheal anesthesia is provided. 3 Q What's your understanding, from your review of the 4 documents in this case, as to the level of consciousness, 5 unconsciousness that was used by Dr. Henthorn in reaching 6 his conclusions about when the second and the third drug 7 should be administered in an execution circumstance? 8 A My understanding is that he used an EEG end point that 9 he called burst suppression. And in further reviewing his 10 written materials, I believe he was using a definition of 11 burst suppression that was equivalent to a suppression 12 ratio of 50 percent, meaning that 50 percent of the time 13 the EEG had flat line and 50 percent of the time the EEG 14 had typical waves.
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15 Q In your medical judgment, is that the proper level to 16 be thinking we need to get to, that is needed to get to in 17 an execution circumstance when we get to the second and the 18 third drug? 19 A Well, this level of anesthesia in which we have what's 20 called a suppression ratio of 50 percent is far in excess 21 of what is needed in clinical anesthesia. Now, certainly 22 with the doses of thiopental that are employed in a lethal 23 injection, ultimately not only are you going to reach burst 24 suppression, you're going to reach a complete flat line, a 25 completely isoelectric EEG.
274

1

But at the point in time in which you can

2 reliably perform something uncomfortable and be convinced

3 that the person is not going to experience any pain or

4 suffering will occur much earlier, because one does not

5 need to go to an end point of burst suppression to prevent

6 the perception of noxious stimuli. And, in fact, when we

7 do clinical anesthesia for surgery, if we were monitoring

8 the patient with an EEG, which is something that, for

9 instance, I regularly do, the end point of burst

10 suppression is an unnecessarily deep level of anesthesia.

11 It's not harmful to the patient, but it is associated with

12 a prolonged wake-up at the end of the case. In other

13 words, it means that I'm not providing an efficient

14 anesthetic.

15

So a level of unconsciousness that is higher

16 than the point at which one reaches burst suppression is

17 still consistent with adequate surgical anesthesia and

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18 would be certainly associated with the inability to 19 perceive any noxious stimulus, as for example during a 20 judicial execution. 21 Q Is the level of unconsciousness, burst suppression 22 as used by Dr. Henthorn, a much deeper level of 23 unconsciousness than that that's targeted in surgery? 24 A Yes. 25 Q You mentioned the bispectral index and the S is for
275

1 the -- the BIS monitor, what does BIS stand for?

2 A Well, BIS is a shortened term for bispectral.

3 Q Okay. The bispectral index monitor. What is this

4 monitor built to measure?

5 A This is a monitor that is designed to facilitate using

6 EEG monitoring by anesthesiologists who are typically not

7 well-trained in the interpretation of complex EEG waves.

8 So the monitor consists of applying electrodes to the

9 forehead that acquire EEG waves from the brain. The EEG

10 signal is then processed by a computer, and although the

11 EEG waves are displayed on the screen, a person who is not

12 well-versed in their interpretation does not need to rely

13 on their appearance or pattern to use the monitor.

14

The monitor then displays a number between zero

15 and a hundred which is used to correlate with the

16 probability of unconsciousness. And the relationship

17 between the actual BIS value and the probability of

18 unconsciousness is a complex curve. It's called a sigmoid

19 curve. But clinically, anesthesiologists know that if they

20 target the anesthetic depth to a BIS value of between 40

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21 and 60 they know, based upon a huge body of clinical data, 22 that the probability of consciousness during the surgery is 23 minuscule. 24 Q So for surgery the BIS monitor is targeted at 40 to 25 60?
276

1 A Correct.

2 Q Burst suppression as used by Dr. Henthorn, what level

3 is that? What number on the scale, approximately, would

4 that be?

5 A Well, first of all, the appearance of any burst

6 suppression occurs as a BIS value of 40. And a 50 percent

7 suppression ratio, which as I described is what I believe

8 the end point he was using where we have a 50 percent flat

9 line, 50 percent EEG waves, that corresponds to a BIS value

10 of approximately 15 to 20, approximately.

11 Q I'd like to show you what's been labeled Defendant's

12 Exhibit 2 and I have already provided -- let me hand this

13 to you.

14

MR. PRITCHETT: And, Judge, I could give you a

15 copy if you would like to follow along.

16

THE COURT: Yes, if you would.

17

Thank you.

18 Q (By Mr. Pritchett) What is Exhibit 2, Defendant's

19 Exhibit 2?

20 A This is actually an exhibit from one of the papers

21 that I have published. I was a participant in one of the

22 early studies in which the algorithm underlying the BIS

23 monitor was developed, and this is some data from that

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24 paper. And so on the X axis, we have the BIS value and on 25 the Y axis we have probability of response.
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1 Q Before you go any further, you prepared this document?

2 A Yes. This is from a paper in which I am the coauthor.

3 Q And you have described what it is.

4

MR. PRITCHETT: I'd offer Defendant's Exhibit 2

5 in evidence for illustrative purposes.

6

MS. ANDERS: No objection.

7

THE COURT: Be received.

8

MR. PRITCHETT: Thank you.

9 Q (By Mr. Pritchett) Now, if you could explain for us

10 the meaning of the chart, and particularly I think it would

11 be helpful to talk about the relationship between the

12 probability of response vs. the BIS number read-out.

13 A So on the X axis we have the BIS value and on the

14 Y axis we have the probability of response, which in this

15 case again was properly and accurately following the

16 command like raise your right arm, raise your left leg.

17 And as you can see, the curve is shaped in a sigmoid in

18 which as the BIS value proceeds from 40 through the mid

19 50s, essentially the probability of response or the

20 probability of consciousness is very tiny.

21

And then after a point in the mid to high 50s,

22 the curve takes a rapid upturn, and by the time the BIS

23 value is in the high 70s, almost everybody is conscious.

24

Now, in the same experiment we also determined

25 whether or not the patient would have recall. And the way

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1 that was determined, immediately following giving the

2 patient the command to raise your right arm, raise your

3 left leg, they were also told something like John, I want

4 you to remember the word table. John, the word table is

5 very important. Please remember it. And then after the

6 experiment was over, they were asked to recall the words

7 that they were told.

8

And as you can see, there's a separate curve

9 which plots the probability of recall vs. the BIS value.

10 And these two curves are separated by approximately 15 to

11 20 BIS points on the X axis. The reason that clinicians

12 have chosen to target a BIS of 40 to 60 for clinical

13 anesthesia is that even though 15 -- approximately 15

14 percent of the population may have some degree of

15 consciousness at a BIS of 60, the probability of recall is

16 still extremely low. And it is thought that awareness

17 under anesthesia and the absence of recall is probably not

18 harmful.

19

The reason that a BIS value of 40 is chosen as

20 the lower limit in clinical anesthesia is because anything

21 below that is thought to be unnecessarily deep and is

22 thought to be associated with a prolonged awakening at the

23 end of the case.

24 Q Thank you for the description, Doctor.

25

In your medical judgment, does a BIS monitor

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1 reliably measure the depth of consciousness? 2 A Yes.

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3 Q And why do you say that? 4 A Well, it's borne out by a number of clinical trials 5 that have been published so far on thousands of patients. 6 Like any clinical test, it is not perfect. There are 7 certain people in whom it may not work well, especially 8 those with underlying abnormalities in their EEGs, but in 9 the vast majority of people it is a reliable clinical 10 monitor and has made our ability to deliver anesthesia 11 better and safer. 12 Q Are you aware of the use of a BIS monitor in a recent 13 execution in North Carolina? 14 A Yes, I am. 15 Q And what is your understanding of the read-out, the 16 impact of the use of thiopental as measured by the BIS 17 monitor at that execution? 18 A In the protocol that North Carolina applied, the 19 execution team placed a BIS monitor on the patient or on 20 the inmate before the beginning of the injection sequence. 21 And the protocol has built into it a pause at the 22 conclusion of the administration of the flush solution 23 following thiopental. And at this point in the protocol 24 the physician and nurse who were monitoring the BIS monitor 25 would then give the go-ahead to the execution team to
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1 proceed with the administration of pancuronium and then 2 potassium chloride. And the protocol mandated that the BIS 3 value was to be below 60 prior to the administration of the 4 second and third drugs. And the physician and nurse who 5 were monitoring the BIS monitor had the authority to order
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6 additional thiopental had the person not reached a BIS

7 value of 60 in a reasonable amount of time.

8

In fact, in that execution there was no pause

9 that was required because by the time the flush solution

10 had completed being injected, the BIS value was zero and

11 the EEG was flat line. So this is the lowest measurable

12 level of consciousness that one can achieve medically

13 because one cannot measure any depth of consciousness below

14 the complete cessation of electrical activity in the brain.

15 Q What's the dose of thiopental that was used in

16 North Carolina on this occasion?

17 A Three grams.

18 Q How long did it take the BIS monitor to drop to zero

19 after the beginning of the administration of the

20 thiopental?

21 A Well, the BIS value dropped continuously after the

22 thiopental started going in. It took approximately between

23 a minute and a minute and a half to complete the entire

24 injection sequence of the thiopental and the flush

25 solution. And prior to the completion of the flush

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1 solution, the BIS value had already reached zero and the 2 electrical activity of the brain was already flat line. 3 Q Is that actual experience in North Carolina 4 consistent with Dr. Henthorn's conclusions regarding the 5 time needed for thiopental to result in burst suppression? 6 A I think that his predictions are resulting in an 7 unnecessarily long time to the point at which burst 8 suppression will occur.

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9 Q And that's supported in part by the North Carolina 10 example? 11 A It's supported by the North Carolina example, and as I 12 said, it's also supported by many, many years of clinical 13 experience among many anesthesiologists who do rapid 14 sequence induction without having their patients awake or 15 have recall during the placement of the endotracheal tube. 16 Q You have had a chance to examine Dr. Henthorn's 17 modeling, I think? 18 A Yes. 19 Q And have you determined that there is a mistake or an 20 incorrect assumption in the analysis? 21 A I'm not sure I would phrase it as a mistake, but there 22 is an assumption with which I do not agree. 23 Q What is that assumption? 24 A Can we look at that figure so I could have it in front 25 of me?
282

1 Q Yes.

2

MR. PRITCHETT: What the doctor is asking for is

3 what I think was Plaintiff's Exhibit 43. 43, Figure 4.

4

MR. BERGER: Your Honor, we object on the grounds

5 that this wasn't covered in Dr. Dershwitz' expert report.

6

MR. PRITCHETT: I think the doctor did indicate

7 that he had looked at Dr. Henthorn's report and considered

8 that it did not accurately reflect what would occur.

9

MR. BERGER: Your Honor, Dr. Dershwitz' report

10 didn't give any bases for what that -- you know, what that

11 would be. It said with no detail at all what his attack

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12 would be on these models.

13

MR. PRITCHETT: It says the doctor's assumptions

14 are based -- the predictions are unscientifically sound and

15 are based upon assumptions that result in an over-lengthy

16 predicted time between the beginning of the thiopental

17 administration and the loss of consciousness.

18

MR. BERGER: I think it said they may, isn't that

19 right?

20

MR. PRITCHETT: They may be based.

21

MR. BERGER: That wouldn't have given us adequate

22 notice to think about and deal with Dr. Dershwitz'

23 conclusions.

24

THE COURT: I'll sustain the objection.

25 Q (By Mr. Pritchett) Did you consider in your report,

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1 in your review of this case, the onset time of the 2 effectiveness of thiopental to put a person at a sufficient 3 level of unconsciousness so that it would be appropriate to 4 administer the second two drugs in an execution? 5 A Yes, I did. 6 Q And how did you take account of that in your analysis? 7 A Well, I had to work under various scenarios. First of 8 all, in the graphs that I submitted prior to my testimony 9 in January I basically assumed that the five grams of 10 thiopental would be in 200 milliliters of volume because 11 that is the volume that we typically use clinically and I 12 used a one milliliter per second injection time. And in 13 that scenario the probability of consciousness at the time 14 that the second drug would be administered is a minuscule

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15 fraction of one percent. And that number is specified in

16 my report. I don't remember how many 9s after 99 percent

17 it is, but it's a tiny number.

18

I now understand that that assumption was

19 probably not accurate in terms of how the thiopental was

20 mixed and administered.

21 Q How do you understand the thiopental has been mixed

22 and administered in Missouri now?

23 A In the recent executions my understanding is that when

24 2.5 grams were used, the smallest volume of diluent that

25 could be achieved as far as getting the drug into solution

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1 was used. And that the injection was probably completed in 2 a minute or less. Even in that scenario, the probability 3 of consciousness at the time the second drug would begin to 4 be given is still a tiny fraction of one percent. 5 Q If five grams of thiopental was administered at an 6 execution, and let's assume that it's actually brought into 7 the body, is there any need for a monitoring of the 8 anesthetic depth of the condemned prisoner, in your view? 9 A I don't think it's necessary. 10 Q And can you tell us why not? 11 A Because it is inconceivable that there's any human who 12 could possibly remain awake after such a large dose of 13 thiopental being properly administered into a working 14 intravenous catheter. 15 Q Would the same be true at a somewhat lower dose of 16 thiopental, say 2.5 grams? 17 A Yes. And in fact, I have testified elsewhere that

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18 even doses as low as 1.5 grams will provide a high enough 19 probability of unconsciousness so that, in my opinion, an 20 execution would be humane. 21 Q Based on your clinical experience, based on the North 22 Carolina experience and the recent execution, what do you 23 conclude with regard to the effective onset time of the 24 administration of, say, five grams of thiopental? 25 A Well, as I have said before, loss of consciousness in
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1 the typical human occurs after the successful delivery of

2 approximately 200 to 300 milligrams of thiopental. And so

3 the delivery of increasing doses acts to decrease the level

4 of consciousness as well as to increase the duration of

5 unconsciousness.

6

However, I also have to mention that at these

7 large multi-gram doses, duration is not a meaningful term

8 because although I could predict that the duration of

9 unconsciousness would last for hours, and I believe

10 Dr. Henthorn confirmed that in his calculations, in reality

11 if we do not support the circulation and ventilation of the

12 person, the person will die from decreased oxygen delivery

13 to, you know, peripheral tissues, so duration is not in my

14 opinion a very meaningful term to discuss in this context.

15

I think everyone agrees on both sides of this

16 issue that if several grams are successfully administered,

17 the person will remain unconscious for a period of time far

18 in excess of that which is required to complete a typical

19 execution.

20 Q Stepping back from the durational component to the

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21 initial effective onset, how long it takes the thiopental 22 to reach a level at which an individual will be 23 unconscious, a five-gram dose will reach, in your view, 24 that level of unconsciousness after approximately what 25 time?
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1 A Well, first of all, unconsciousness will be achieved 2 once the first two to 300 milligrams circulate, and that 3 will take, you know, typically 30 seconds to 45 seconds in 4 the average person. And so as increasing amounts of 5 thiopental are given, from the person's perspective who is 6 receiving the drug nothing is different because once 7 unconsciousness is achieved, the depth of unconsciousness, 8 although perceptible to a clinician who is looking at an 9 EEG, is not perceptible to a person receiving the drug. 10 And so once the first few hundred milligrams circulate, 11 which typically takes 30 to 45 seconds, the person is 12 unconscious and they will remain unconscious for quite a 13 period of time after the rest of the dose is given. 14 Q Are you aware of scenarios in the induction of general 15 anesthesia when an anesthesiologist in an ordinary medical 16 practice is not at the edge of the bed of the patient 17 receiving the anesthesia? 18 A It does happen occasionally. One scenario that I 19 could envision, because this has happened to me, when we 20 provide care for a patient undergoing certain procedures 21 like an MRI scan, typically the anesthesia providers are 22 located in an adjacent room and all of our equipment is 23 located in the adjacent room because our equipment is not
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24 typically compatible with a strong magnetic field in an MRI 25 scanner. And so a scenario in which I can envision this
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1 happening is -- and I should tell you, first of all, the

2 vast majority of patients who need MRI scans do not need

3 anesthesia. The vast majority of people could properly go

4 into the scanner and lie there still and undergo their scan

5 without any problem.

6

When they ask an anesthesiologist to become

7 involved it's typically in a critically ill patient or in a

8 patient who for whatever reason is unable to hold still or

9 be cooperative. And sometimes we will provide intravenous

10 sedation so that the person is sleepy but not unconscious.

11 Sometimes we deliberately induce general anesthesia to

12 render the person completely unconscious. And sometimes,

13 and this has happened at my experience, where we attempted

14 to provide intravenous sedation, partway through the

15 procedure the radiologist said the patient is either moving

16 too much and then we make the decision to go from sedation

17 to general anesthesia, and we may do that remotely, meaning

18 I give additional medication from my point of observation

19 in the control room approximately 15 feet away from the

20 patient and have them make the transition from sedation to

21 general anesthesia.

22 Q And how are you able to, in this situation, administer

23 additional anesthesia to the patient who is in the MRI

24 machine?

25 A Typically we're giving the anesthetic medications

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1 intravenously so I would tell the infusion pump to give an

2 additional and higher dose.

3 Q I'm at a much more basic level. How does it get from

4 where you are to the patient?

5 A Through 15 feet or so of intravenous tubing.

6 Q I'd like to change topics here and talk about

7 potassium chloride for a second. Without use of

8 anesthesia, would the administration of potassium chloride

9 cause pain in an individual when it reaches the heart?

10

MS. ANDERS: Objection, Your Honor. It's not

11 covered in the expert report.

12

THE COURT: We can't have both of you objecting.

13 Only one of you is covering this witness and you need to

14 make up your mind which one it is.

15

Objection will be overruled.

16 A First of all, whether or not potassium chloride harms

17 the person or causes pain on injection is dependent upon

18 the concentration and the cumulative dose. So, for

19 example, we routinely give dilute potassium chloride to

20 patients as part of our routine intravenous fluids. When

21 the concentration of potassium chloride is high, it could

22 cause irritation to veins and cause pain. When the

23 cumulative dose of potassium chloride is very high, it

24 will cause the heart to stop and for a few seconds before

25 consciousness is lost the person will experience pain in

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1 the chest that is similar to what a person experiences when 2 they're having a heart attack.

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3 Q So without anesthesia, when potassium hits the heart,

4 and I'm not talking about the administration and getting to

5 the heart yet. When it gets to the heart, how long will

6 consciousness last, approximately?

7 A Well, if we assume that when the potassium chloride

8 reaches the heart, the heart stops --

9 Q And I'm talking about a dose like we use in

10 executions.

11 A So when hundreds of milliequivalents are given, when

12 that potassium chloride reaches the heart and the heart is

13 monitored with an electrocardiogram, electrical activity in

14 the heart stops almost immediately. And so the heart will

15 stop beating and circulation will cease.

16

Typically when circulation ceases consciousness

17 lasts, and again in an unmedicated person, approximately

18 ten seconds, because the brain has essentially no

19 significant oxygen or energy reserves. And during that

20 ten-second period with the heart not receiving any blood,

21 the person would experience angina pain similar to the pain

22 that a person is having when they're having a heart attack.

23 Q So if I understand correctly, without anesthesia when

24 a huge dose of potassium chloride gets to the heart it

25 would render -- it would cause some pain comparable to a

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1 heart attack? 2 A Yes. 3 Q And last for ten seconds at most? 4 A Yeah. The typical person loses consciousness about 5 ten seconds after cessation of circulation.

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6 Q So in that scenario, Doctor, is it accurate to say the 7 pain would last the five to ten seconds of the cessation of 8 circulation? 9 A Approximately. 10 Q I'd like to turn now to femoral IV access. Can you 11 describe for us advantages to the use of femoral IV access 12 over peripheral IV access? 13 A I think in general one could say that a femoral IV 14 would be more reliable in terms of it being less likely to 15 migrate to a place where it's not supposed to be, like 16 outside of the vessel. And it is located closer to the 17 central circulation so that the medication or anything 18 given through the femoral catheter is going to reach the 19 heart a little more quickly. And since the goal of giving 20 intravenous medication is to make sure that it is induced 21 in the vein and not somewhere else. Although peripheral 22 IVs tend to be very reliable when properly placed, I would 23 say femoral IV is very, very reliable. So it just 24 increases the reliability, and the likelihood of failure is 25 decreased.
291
1 Q What about with regard to an incorrect insertion of 2 the catheter that would lead to the delivery of drugs 3 instead of into the vein into subcutaneous tissue; which, 4 the peripheral or femoral, is more likely to avoid that 5 complication? 6 A Certainly hitting the femoral vein is easy because 7 it's huge in the typical person, so once the catheter is in 8 place it's very easy to check that it is intravascular
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9 because one can readily withdraw blood from it, or through 10 it. So confirmation of it being in the right place is 11 easy. And once it's there, it tends to stay put. 12 Q How would you compare peripheral access vs. femoral 13 access with regard to the chance of perforation or rupture 14 or leakage of the vein? 15 A Well, in both cases it's small, but with a femoral 16 catheter it's even smaller because the vessel itself is 17 larger, has a thicker wall, is stronger, it's harder to 18 perforate, et cetera. 19 Q So in general, would it be fair to say that drugs 20 administered through a femoral IV access are more likely 21 to be delivered into the vein as we expect to do than with 22 regard to a peripheral IV? 23 A Well, again very slightly increased reliability 24 because even a peripheral IV properly placed has a very 25 high degree of reliability, but that degree is increased
292
1 ever so slightly more by having it in the femoral vein. 2 Q We have had testimony in the case about an article in 3 the Journal of the American Medical Association regarding a 4 17 percent complication rate for femoral IV access. Are 5 you aware of that article? 6 A I actually read it. 7 Q What type of patients were being studied in regard to 8 that article that reached the 17 percent complication rate? 9 A Well, all of these people were critically ill and in 10 the intensive care unit. 11 Q And what significance does that have with regard to
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12 whether they would be more likely to have complications or 13 less likely to have complications? 14 A Well, first of all, although the authors did not 15 specify specific risk factors, one of the characteristics 16 of many, many patients in intensive care units is their 17 decreased ability to coagulate blood. So many patients in 18 ICUs are deliberately anticoagulated. And in addition, 19 many patients have a decreased ability to clot blood simply 20 because of their underlying disease, like if they have 21 sepsis. Sepsis is associated with a decreased ability to 22 clot. So it's not the least bit surprising that they would 23 have a high incidence of hematoma because they're sticking 24 these catheters in people who have a decreased ability -25 many of whom have a decreased ability, you know, to clot,
293

1 just based on the fact that they're intensive care

2 patients.

3

Similarly, patients who are in the intensive care

4 unit, many of them have low blood pressure. That's why

5 they're there. And a patient with low blood pressure is

6 going to have weaker peripheral pulses. And in my

7 experience, it is a little harder to locate the landmark,

8 which is the femoral artery, which should have a very

9 strong pulse. And in some critically ill patients, the

10 patients do not have a strong pulse because they're

11 critically ill.

12 Q Did the report, at least as far as can be told, look

13 at complication rates of physicians with all levels of

14 experience?

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15 A Well, one of the noteworthy things that the paper 16 commented on, it was done at eight hospitals in France, and 17 although they didn't specify which was which, two of the 18 hospitals were noted to have a significantly increased or 19 higher complication rate than the other six. And although 20 I certainly can't say this with any certainty, one possible 21 explanation is that at the two hospitals that had higher 22 complication rates, the people doing the procedures may 23 have been less experienced. For instance, they may have 24 been residents or fellows in training. 25 Q The complications that were reviewed in this article,
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1 did that include complications that would not even manifest 2 themselves for a length of time, say covering days? 3 A One of the major things that the paper discussed was 4 the infection rate, and of course an infection that is 5 visible to a physician would take hours to days to manifest 6 itself after the placement of the catheter. 7 Q How long is a femoral catheter typically left in in a 8 medical situation, a medical practice? 9 A It could be weeks and weeks and weeks. For instance, 10 lots of patients who have femoral catheters for dialysis, 11 the femoral catheter is kept in while waiting for their 12 surgical dialysis access to mature. 13 Q And how long, in your understanding, is the femoral IV 14 catheter useful in an inmate being executed? 15 A It's typically a matter of minutes. 16 Q In your clinical experience, what's the likelihood of 17 damage to a femoral nerve that's caused as a result of an
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18 attempt to achieve femoral IV access, femoral venous 19 access? 20 A Well, thankfully it's never happened to me, and I view 21 the likelihood of hitting the femoral nerve to be 22 particularly remote. 23 Q And why is that? 24 A Because the landmark for placing a femoral venous 25 catheter is the femoral artery which is the strongest pulse
295
1 in the body, and although the femoral nerve is indeed 2 located just adjacent to the femoral artery, so is the 3 vein, but they're on opposite sides. So as long as one is 4 making the injection on the proper side of the artery, the 5 likelihood of hitting the nerve is, in my mind, 6 unbelievably remote. 7 Q With regard to possible puncture of the femoral artery 8 as opposed to the femoral vein, what's your experience as 9 to the likelihood of that complication occurring? 10 A Well, first of all, the femoral artery sometimes is 11 contacted, but when the femoral venous catheter is placed, 12 the typical procedure involves using what's called a finder 13 needle first. And a finder needle, depending on the 14 manufacturer and the kit, is typically a .22 or .25 gauge 15 needle, which is a small, a small needle. And one probes 16 with this needle to make sure that one is in the right 17 place. And it's typically pretty easy to tell the 18 difference between being in the vein and being in the 19 artery because the arterial blood is bright red and the 20 venous blood is not. And the arterial blood pulses at high
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21 pressure and the venous blood does not.

22

If one accidentally goes into the femoral artery

23 with a .22 or .25 gauge needle, then one could apply

24 pressure for a few seconds and there will be essentially no

25 bleeding. And then one also knows that if they have gone

296

1 into the artery, they need to move over a little bit more

2 to get into the femoral vein.

3

Once the femoral vein is properly entered with

4 the small needle, typically .22 or .25 gauge, then that

5 needle is removed and a second needle is inserted in the

6 same site and in the same direction. That's typically an

7 .18 gauge needle, and it is that needle through which the

8 wire is then placed and then the catheter itself is

9 threaded over the wire.

10 Q So in your clinical experience, what's the

11 significance of, when it does happen, going into the

12 femoral artery rather than the femoral vein as it's being

13 inserted?

14 A It's generally not a big deal at all. We have all hit

15 the femoral artery on occasion and I have never had a

16 complication that required intervention, personally.

17 Q And I think you said the solution, the action to take

18 is to put pressure --

19 A Correct.

20 Q -- on the puncture site, I guess?

21 A Correct.

22 Q And how long?

23 A Depending on the size of the hole, but with a .22 or

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24 .25 gauge finder needle, if one applies pressure for a 25 minute or two in a person, a normal person, the hole will
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1 clot and bleeding will not occur.

2 Q What's the likelihood, in your clinical experience,

3 that a hematoma that results from an attempted femoral

4 access will be clinically significant?

5 A Well, sometimes there will be some blood leaking out

6 around the catheter, and when the catheter is in the

7 femoral vein, normal venous pressure is just a few

8 millimeters of mercury, so even if some blood leaks out,

9 because it's leaking out into a closed space, a process

10 called tamponade will occur whereby the pressure in the

11 enclosed space will then exceed the pressure in the vein

12 and the bleeding will stop. So if somebody is going to get

13 a hematoma from a femoral venous catheter, it's more likely

14 to occur in somebody who is anticoagulated or has some

15 other abnormality like that. But in a normal person,

16 significant hematoma formation from a femoral venous line

17 is not typical, and I can't remember ever needing to take

18 care of a patient who came to the O.R. whose hematoma was

19 due to femoral venous catheterization.

20 Q There's been some testimony in this case from

21 Dr. Johnson that a typical step, a standard step in the

22 insertion of a femoral IV by means of the Seldinger method

23 is to poke the needle through the vein and into the bone

24 that lies beneath the vein.

25

In your experience, is going through the vein

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1 and hitting the bone a usual and intended event in the

2 insertion of a femoral catheter?

3 A Well, it's not the way I do it and it's not the way I

4 teach my residents to do it. The way I do it is I insert

5 first a finder needle to locate the site and the

6 approximate depth of the vein and then remove that needle

7 and insert the .18 gauge needle. And as soon as I achieve

8 venous blood flow, with the tip of the needle in the middle

9 of the lumen of the vein, I then thread the wire and remove

10 the needle.

11

So I'm not saying it's impossible to perforate

12 the back wall of the vessel or hit the bone, but it is

13 certainly not deliberate on my part and it's certainly not

14 something, the way I would teach other people to do it.

15 Q Is the injection of potassium chloride into the

16 femoral vein less likely to be a painful process than

17 injection of potassium chloride through a peripheral vein?

18 A Yes, I believe so, although in clinical medicine we

19 don't use potassium chloride quite as concentrated as is

20 used during a lethal injection. It is commonplace to

21 administer potassium chloride at a concentration that would

22 not be recommended peripherally. So the particular

23 concentration of potassium employed when it's used in

24 my hospital therapeutically is 0.4 milliequivalents per

25 milliliter. That would be 20 milliequivalents in a volume

299

1 of 50 milliliters. That solution is not permitted in my 2 hospital, and in other hospitals with which I have been

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3 associated, that's not permitted to be given through a 4 peripheral IV. It has to be given through a central vein, 5 and through a central vein at that concentration patients 6 do not experience pain. 7 Q And why is it less likely to have pain and in this 8 case not pain at all from the administration of potassium 9 chloride in a femoral vein vs. a peripheral vein. 10 Physiologically, what's going on that makes it less 11 painful? 12 A When it's going into a femoral vein or the subclavian 13 vein or other large vein that's near the central 14 circulation, the blood flow is much higher than in the arm 15 in terms of the milliliters per second that are flowing 16 past that point in the vessel. And the volume in which the 17 medication is being diluted is much greater. So it's the 18 actual concentration of the potassium chloride that hurts. 19 And so once the potassium chloride is diluted, it's going 20 to hurt less. And it's going to be more readily and more 21 rapidly diluted when it is placed into a central vein as 22 compared to a peripheral vein. 23 Q Are you aware of any jurisdictions in the United 24 States that have chosen femoral IV access as the standard 25 for executions besides Missouri?
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1 A My understanding is the federal government also uses 2 the femoral venous route as its preferred route. 3 Q Are you aware of any class of physicians that would 4 commonly obtain femoral IV access with the use of local 5 anesthesia only?
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6 A Yes. In my experience and the hospital in which I 7 work now, as well as in other hospitals with which I have 8 been affiliated, although surgeons sometimes bring patients 9 to the operating room for placement of some types of 10 catheters, nephrologists, who are the specialists who deal 11 with patients with chronic renal failure, they're the ones 12 who are often consulted when a patient is needing dialysis, 13 and surgeons may be asked to perform surgery to create a 14 permanent and long-lasting dialysis access. But typically 15 from the time the surgeon does the operation to the time 16 that it's ready to be used is measured as weeks or months. 17 And in the meantime temporary dialysis catheters are often 18 inserted by nephrologists. It's typically a bedside 19 procedure, and it's typically done with local anesthesia to 20 provide comfort and no sedation whatsoever. 21 Q I believe you said that's at least a fairly common 22 practice at the medical facilities that you're familiar 23 with? 24 A Yes. Temporary dialysis catheters are placed by 25 nephrologists in my institution all the time. These
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1 patients don't come to the operating room. They don't go 2 to the recovery room afterward. They don't get sedation. 3 And, you know, this is not considered by the nephrologist 4 or by the patients to be a particularly noxious procedure. 5 Q So in your view, is the use of femoral IV access for 6 the administration of lethal chemicals in the case we're 7 here for today a reasonable choice to be made? 8 A I think it is a reasonable option, balancing the
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9 advantages and disadvantages of all the different options.

10

MR. PRITCHETT: I think I am at an end, or near

11 an end, Judge. If I could have a moment to consult with

12 cocounsel.

13

Just briefly, Judge.

14 Q The low doses that are typically used in a surgical

15 procedure, do those have an effect on cardiac output?

16 A You're speaking of low doses of thiopental?

17 Q Yes. Thank you. Sorry. I did not specify that.

18 A The typical dose of thiopental, a few hundred

19 milligrams, may drop the blood pressure by a small amount,

20 but it typically does not affect the cardiac output to a

21 meaningful degree as far as the circulation time.

22

MR. PRITCHETT: Thank you very much, Doctor.

23 That's all I have for you at this time.

24 CROSS-EXAMINATION BY MS. ANDERS:

25 Q Good morning. Have you published anything on

302

1 thiopental? 2 A I have published a fair number of chapters about 3 general anesthetic, intravenous anesthetic, in review books 4 and, for example, in one of the major standard textbooks of 5 anesthesiology that is in the process of being revised I 6 have a chapter on intravenous anesthetic which certainly 7 includes an extensive discussion of the pharmacology of 8 thiopental. I have also written about it and its use in 9 other chapters I have written elsewhere. 10 Q So textbook chapters, you rely on other sources for 11 that; is that correct?

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12 A Typically, yes. 13 Q You cite other sources. Have you published any human 14 studies on thiopental in peer review journals? 15 A No. 16 Q And I believe that Dr. Henthorn has done extensive 17 research and studies in thiopental, particularly the onset 18 of thiopental, the onset time; is that correct? 19 A Yes. He and I have done very similar work. His work 20 on thiopental is very similar to my work on propofol, which 21 is another hypnotic. 22 Q Have you ever received a grant to study thiopental? 23 A No. 24 Q And would you seek out Dr. Henthorn's judgment if you 25 had a question about the onset of thiopental particularly?
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1 A Well, his work on the rapid and early circulation of 2 thiopental is one of the sources that I have considered, as 3 well as the work of others. 4 Q And I believe you stated in your expert report that 5 the graphs you've done in this case are based on the work 6 by Dr. Henthorn; is that correct? 7 A A portion of the consideration is based upon his work 8 as well as the work of others. I did not rely on the 9 kinetic set based solely on one person's work because I 10 wanted to make sure it was more extrapolatable to the 11 general population. But I certainly did include 12 consideration of his published work. 13 Q What other published works did you rely on? 14 A Another lab that has done a fair bit of work on
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15 thiopental is the lab at Stanford and Doctors Stanski and 16 Shafer and Mada are amongst the authors who published 17 extensively on the kinetics of thiopental. 18 Q And where was the data that was relied on published? 19 Is there an article you can cite? 20 A Off the top of my head I would say it was probably in 21 the Journal of Anesthesiology or at least some of the 22 papers were in the Journal of Anesthesiology, but I'd have 23 to go back and look again. 24 Q Do you remember about when those papers were 25 published?
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1 A Late '80s, early '90s approximately, I believe. 2 Q And I believe you testified previously that in this 3 case, that -- and this is on page 32 of the transcript, the 4 detailed -- I quote, "The detailed kinetic and dynamic 5 predictions that I made for thiopental rely on 6 state-of-the-art studies that were performed on human 7 volunteers." So I take it you were referring to Dr. 8 Henthorn's article and the Stanski article as well; is that 9 correct? 10 A Yes, both of them published lots of things in human 11 volunteers. 12 Q And I believe that Dr. Henthorn's article that you 13 cited specifically was published in 1989; is that correct? 14 A In clinical pharmacology and therapeutics, yes. 15 Q And I think you just testified that the Stanski and 16 Shafer articles were also about the late '80s or early 17 '90s?
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18 A They were contemporaneously published within a year or 19 two of each year. 20 Q So do you consider data from 1989 to be 21 state-of-the-art in this field? 22 A Yes, simply because since thiopental was essentially 23 abandoned in anesthesia use in the early '90s, people 24 stopped doing high-level research on thiopental and chose 25 to explore other drugs like propofol.
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1 Q Are you aware of whether Dr. Henthorn has continued 2 publishing on thiopental? 3 A He may have. I can't cite any papers off the top of 4 my head beyond the early '90s. 5 Q Would you be surprised if I told you that Dr. Henthorn 6 has received eleven years of grants to study thiopental and 7 that has continued into the past few years? 8 A No, that wouldn't surprise me at all, but the area in 9 which he is studying is not exactly the same as which he 10 did in the late '80s and early '90s. 11 Q I see. So I believe you testified that it's not 12 necessary to monitor anesthetic depth assuming a five-gram 13 dose or 2.5 gram dose of thiopental is successfully given; 14 is that correct? 15 A Yes. And my understanding is that people -16 anesthesiologists on both sides of this issue have agreed 17 that the successful delivery of this large dose of 18 thiopental will result in a humane execution. 19 Q And I believe -- well, let me ask you. When you did 20 your graphs back in January for this case and you
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21 testified, did you assume that a five-gram dose of 22 thiopental would be successfully given into the 23 circulation? 24 A Yes. 25 Q And that turned out to be false, didn't it?
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1 A No. 2 Q Why not? 3 A I have no evidence that the catheter malfunctioned or 4 that the medication was not delivered into the central 5 circulation. 6 Q What is your understanding of the intended dose of 7 thiopental in the past five executions in Missouri? 8 A Well, now I understand. The intended dose was five 9 grams and the delivered dose was 2.5, grams and as far as 10 I know, there's no reason to think that the delivered dose 11 was not delivered successfully into the central 12 circulation. 13 Q And are you able to tell definitively from the 14 documents in this case and the testimony, deposition 15 testimony of John Doe One, precisely how much thiopental 16 was given on a particular occasion? 17 A Well, I believe he said it was 2.5 grams resulting 18 from the preparation of five 500-milligram injection kits. 19 Q And are you certain about that? 20 A I'm as certain as he was when he testified to that 21 point. 22 Q Are you aware of discrepancies in the chemical log 23 with respect to how many vials of thiopental were checked
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24 out and precisely how much thiopental was given? 25 A I have read references to that and I have to admit I
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1 don't understand what is going on there. 2 Q Have you reviewed the chemical log yourself? 3 A No. 4 Q And I believe you stated that you made an assumption 5 with respect to the amount of diluent, is that correct, 6 back in January? 7 A Correct. I assumed that the solution to be injected 8 would be 2.5 percent, which is that concentration that is 9 clinically used. 10 Q And that assumption turned out not to be correct in 11 terms of the facts in this case? 12 A That appears to be the case. 13 Q And did you also make an assumption with regard to the 14 injection times in Missouri? 15 A Well, originally I assumed that the five grams would 16 be injected at the rate of one milliliter per second. 17 Q And that turned out not to be correct? 18 A Correct. 19 Q And if there's a leakage to the connection between the 20 tubing and the catheter -- a partial disconnect, could that 21 be undetected in an execution? 22 A Anything is possible. However, once the IV tubing is 23 put together, in my experience, I have a very difficult 24 time imagining a disconnect just happening, because the 25 pieces screw together. But I will concede that anything
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1 is possible. 2 Q Are you aware of whether the execution team in 3 Missouri can observe the catheter site? 4 A I don't know if they can actually see the catheter 5 site itself. 6 Q So you don't know whether there's a sheet covering it 7 or not? 8 A I believe that there is a sheet covering the inmate 9 and they can see parts of the IV tubing and can't see all 10 of it. 11 Q If I told you that the sheet went up to the inmate's 12 neck and came fully down both sides of the bed, would you 13 have an opinion as to whether they can see the catheter 14 site? 15 A They probably can't see the catheter site itself. 16 Q If 80 percent of the drugs leaked at some point 17 through the tubing or the catheter site, how much 18 thiopental went into the body? 19 A Well, if the intended dose was five grams and 20 80 percent of it leaked, then only one gram would reach 21 the patient. 22 Q And do you agree that one gram of thiopental is an 23 insufficient dose for chronic drug addicts? 24 A Well, first of all, it's inconceivable to me that an 25 inmate on death row is currently using illicit drugs. So
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1 if a person has a remote history of drug abuse but has been 2 clean for years, then they are expected to respond normally
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3 to a dose of thiopental. I would say, though, that in my 4 opinion, one gram of thiopental is probably not an adequate 5 dose for a judicial execution in anybody. But I don't 6 think that a former drug addict is any different from 7 anybody else, assuming they have not been able to use 8 illicit drugs while confined in the penitentiary. 9 Q So you don't think the fact that somebody who is a 10 chronic drug addict particularly would render one gram of 11 thiopental an insufficient dose? 12 A As I said, in my opinion, one gram is not an adequate 13 dose for a judicial execution. If a person has a prior 14 history of drug use but has been clean for years, they 15 don't respond differently than somebody who has never 16 had a history of drug abuse. And so for a person to be 17 considered different, I would want to see evidence that 18 they continued to use in the recent past, which I would 19 think would be very difficult to imagine in an incarcerated 20 inmate. But if you showed me evidence to the contrary, 21 then I would consider it. 22 Q So you say that one gram would be, in your view, 23 insufficient for a judicial execution. Would it be 24 insufficient to ensure that a drug addict were sedated, 25 just taking out the execution situation?
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1 A Well, certainly a gram of thiopental is going to 2 sedate everybody to some degree or another because the drug 3 is a sedative. It's going to cause loss of consciousness 4 in a substantial fraction of people. In my opinion, the 5 percentage of the population that would be reliably
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6 rendered unconscious by one gram is not high enough for a

7 judicial execution. But I'm saying this not with regard to

8 drug addicts. I'm saying this with regard to everybody in

9 the population.

10 Q So if I told you that John Doe One, the physician, in

11 his deposition, page 12, stated that, "I was quite aware

12 that one gram in chronic addicts was an insufficient dose

13 to ensure that they would be sedated," would you disagree

14 with that statement?

15 A I think it depends on your definition of a drug

16 addict. If the person was using up until the recent past,

17 that's one type of patient. But a person who has been

18 forced to be abstaining from drugs because they're

19 incarcerated is a completely different type of patient.

20

THE COURT: Why don't we take a brief recess

21 here, about ten minutes or so.

22

And I will remind you, Ms. Anders, that you do

23 have a limited amount of time. You may, at your peril, not

24 get to critical issues to cover in this examination.

25

We'll stand in recess.

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1

(Recess)

2 Q (By Ms. Anders) Just to go back to a previous

3 question briefly, Dr. Dershwitz. If the intended dose of

4 thiopental is 2.5 grams and 80 percent of it leaks, how

5 much thiopental would enter the circulation?

6 A I think 500.

7 Q 500 --

8 A Milligrams.

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9 Q Milligrams. So I think -- I believe you testified 10 that in a rapid sequence induction you skipped the testing 11 of anesthetic depth because of a medical indication? 12 A Yes. 13 Q So is it fair to say that you don't skip the testing 14 of anesthetic depth all the time with every patient? 15 A No. We assess the depth of anesthesia if it's 16 medically indicated and we don't if it's medically 17 contraindicated. 18 Q And I believe you testified about the medical 19 indications of a rapid sequence induction. Those involved 20 the person not having properly fasted, things like that; is 21 that correct? 22 A Yes. 23 Q Is it fair to say that most of those situations are 24 emergency situations? 25 A No, because a huge proportion of the population has
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1 symptoms of acid reflux and so people with that symptom are 2 also at higher risk for aspiration so those are people who 3 we would do rapid sequence induction also. 4 Q So it's specific medical issue that requires you to do 5 rapid sequence induction? 6 A Yes. 7 Q And what is the medical indication of lethal 8 injection? 9 A Lethal injection is not a medical procedure. 10 Q So why is it -- are there medical factors involved in 11 an execution that require as a medical matter the use of
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12 something like a rapid sequence induction? 13 A Well, I'm not sure I can answer the question because 14 from start to finish it's not a medical procedure so I 15 can't say that only a fraction of it is or is not. 16 Q Is it necessary to induce general anesthesia in an 17 execution? 18 A It's necessary to provide unconsciousness. 19 Q And providing unconsciousness using an anesthetic, is 20 that a medical procedure? 21 A Again, when it's ordered by the State I do not 22 consider it a medical procedure. 23 Q But the same actions are taken, the same drug, medical 24 drug is used or a drug that is used in medicine; is that 25 correct?
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1 A Well, the drug is the same. I won't say that the same 2 actions are taken, but I would say of course the 3 medications are used -- that are used are also typically 4 used in clinical medicine. 5 Q So unconsciousness is induced in an inmate through the 6 use of medication? 7 A Yes. 8 Q And so in that process, what justifies taking the 9 increased risk of not monitoring anesthetic depth? 10 A That's not for me to decide. 11 Q I believe you discussed the BIS monitor briefly. If 12 you give a conscious person a large dose of a paralytic 13 drug like pancuronium, what will happen to the BIS value? 14 A As far as I know, no one knows because it's never been
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15 studied. Certainly one of the parameters that goes into 16 the BIS value is the degree of muscle tone in the frontalis 17 muscle, which is the muscle in the forehead, so the BIS 18 value will drop to some indeterminate -- by some 19 indeterminate degree if you paralyze someone awake, but 20 as far as I know, that experiment has never been done. 21 Q So you're not aware of a study in which that actually 22 -- the use of a paralytic drug with a BIS monitor actually 23 was studied? 24 A I am unaware of a study in which a human was given a 25 large dose of a paralytic drug with no sedation and had
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1 their BIS measured concurrently. 2 Q So if the BIS monitor -- if the BIS value goes down 3 upon the administration or after administration of 4 pancuronium, can it provide an accurate measure of 5 consciousness after the pancuronium is administered? 6 A Absolutely, because it will drop like a rock after the 7 thiopental is given. 8 Q After the thiopental is given, yes, but after the 9 thiopental is given and after the pancuronium is given can 10 you trust its accuracy at that point? 11 A Absolutely, because that's how we use it in clinical 12 medicine. Almost all of our patients -- a significant 13 fraction of our patients under clinical anesthesia are also 14 paralyzed and the BIS monitor works very reliably. 15 Q Is the BIS monitor the only monitor that you use to 16 measure anesthetic depth? 17 A Of course not.
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18 Q What other monitors do you use? 19 A We may use clinical factors like observation by the 20 anesthesia team as well as observation by the surgeon. 21 Q And is using a BIS monitor alone to monitor anesthetic 22 depth, is that something that anesthesiologists generally 23 do? 24 A Not during surgery. 25 Q During any procedure requiring general anesthesia?
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1 A Well, I can't think of any procedure that requires 2 general anesthesia where nothing else is done later. But 3 another corollary might be in patients who are mechanically 4 ventilated in intensive care units and are not undergoing 5 surgery, the BIS monitor is commonly applied there to 6 titrate the sedation to an adequate depth of sedation or 7 loss of consciousness. So in that scenario, the only 8 procedure that's being performed is mechanical ventilation, 9 and the primary end point to which the sedating medication 10 is being titrated is the BIS value. So in that scenario it 11 is the primary monitor when it's chosen to be used in an 12 intensive care unit. 13 Q And that's not a situation in which the patient is 14 subjected to painful stimulus; is that correct? 15 A Well, having an endotracheal tube is painful. 16 Q Do all anesthesiologists use a BIS monitor during 17 general anesthesia? 18 A Of course not. 19 Q And should they? 20 A In my opinion, yes, and I have written that. With the
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21 caveat that there are some subset of patients in whom the 22 monitor is not appropriate, but I have written several 23 review articles in which I advocated the use of the BIS 24 monitor routinely in general anesthesia except when it was 25 medically impossible.
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1 Q And are you aware that the American Society of 2 Anesthesiologists has issued a document stating that the 3 BIS monitor is not the general standard of care? 4 A Well, that's actually not what they said. They 5 recommended that the BIS monitor be considered on a 6 case-by-case basis and that clinicians are free to choose 7 to use it when they wish. And they also recognized that 8 there are certain subsets of the population for whom a 9 higher risk of awareness is possible. 10 Q They also stated that the BIS monitor is not indicated 11 for sole use because there are other important measures of 12 anesthetic depth; is that correct? 13 A During surgery, that's true. That's actually not the 14 case when it's used in the intensive care unit, but the ASA 15 policy statement did not address the use in the ICU. 16 Q And I believe you testified that the injection time 17 for thiopental in North Carolina is between 1 and 1.5 18 minutes is that correct? 19 A That's an approximation. 20 Q Do you know how many seconds precisely the injection 21 takes in North Carolina? 22 A No, I do not. 23 Q Do you know how many seconds it takes to inject the
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24 thiopental in Missouri? 25 A No, I do not.
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1 Q Isn't it true that if thiopental is injected 2 relatively slowly, it may have taken effect in the brain by 3 the time the injection is complete? 4 A The speed of the injection is less relevant than how 5 long it takes to get the first few hundred milligrams in, 6 and when one is using a concentrated solution it does not 7 take very long to get two or 300 milligrams into the 8 circulation. How fast the overall syringe plunger is 9 pushed is not terribly meaningful to this discussion. 10 Q And the solution which the thiopental is mixed in 11 Missouri, it's very concentrated; is that correct? 12 A I believe the intent is to make it as concentrated as 13 is achievable. 14 Q So if the solution is extremely concentrated and the 15 drug pushed quite quickly, do you have -- can you be 16 certain whether the North Carolina execution is comparable 17 to Missouri in terms of injection speed and the 18 concentration of thiopental? 19 A I actually think that it's probably not a meaningful 20 difference because what's truly critical is the point at 21 which we go from having no thiopental to let's say 22 approximately 300 milligrams of thiopental. And in the two 23 scenarios that you described we're still talking about a 24 difference of only a few seconds. So, therefore, it is not 25 a clinically meaningful difference.
318
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1 Q But you're not sure how great that difference is; is 2 that correct? 3 A I don't know exactly. I don't know a lot of things 4 exactly. But we're talking about a matter of just a few 5 seconds; a few being a small number. 6 Q Did you see the BIS monitor read-outs from the Brown 7 execution? 8 A I was not there. 9 Q So on what source are you basing your assertions about 10 the BIS monitor in North Carolina? 11 A The information was provided to me by the Attorney 12 General's Office. 13 Q Did you at that point see the BIS monitor read-outs? 14 A I told you I was not there. The material -- the 15 information was provided to me by the Attorney General's 16 Office. 17 Q And did you bring with you today any of the 18 information that was provided to you by the AG's Office? 19 A No. Well, I actually do have a copy of the e-mail on 20 my computer. 21 Q So you have an e-mail from the AG's Office? 22 A Yes, I do. 23 Q And would you rely on that in a medical situation? 24 A I would rely on it in a judicial execution situation, 25 which is obviously, in my opinion, not a medical situation.
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1 Q Do you know Dr. Henthorn? 2 A Very well. We were medical school classmates.
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3 Q Do you believe he's a reasonable person?

4 A I sure do. He's also capable of making a mistake

5 sometimes, as we all are.

6 Q He knows more about the onset time of thiopental than

7 you do; is that correct?

8 A Not anymore.

9 Q Have you received any funding to study the onset of --

10

THE COURT: Let's not get into argument with the

11 Doctor. Let's move on. Your time is limited.

12 Q (By Ms. Anders) So is there a debate about the onset

13 time of thiopental in the medical community?

14 A There is now.

15 Q So this is a situation which reasonable doctors can

16 disagree; is that correct?

17 A And I will be interested to see how much he disagrees

18 once he realizes the mistake that he made.

19 Q Are you certain that he's wrong?

20 A Yes.

21 Q Have you performed his models yourself?

22 A Not in as great detail, but I discovered a flaw in an

23 assumption on which the rest of his calculation is based.

24 Q I believe you testified about an MRI situation where

25 you maintain general anesthesia from a remote location; is

320

1 that correct? 2 A Yes. 3 Q In that situation, do you ever induce general 4 anesthesia in an awake patient from a remote location? 5 A Yes.

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6 Q And when do you do that? 7 A As I said, it happens occasionally in the MRI 8 environment. 9 Q And the patient starts out awake? 10 A Correct, awake but sedated. And then the decision was 11 made to switch from sedation to general anesthesia in the 12 middle of the procedure and then I alter my anesthetic 13 dosing so that the patient proceeds from a sedated state to 14 an unconscious state. 15 Q How many times have you done this? 16 A A few. I can't remember exactly. It's not common, 17 but it's certainly happened to me. 18 Q Do you have any idea how many times in the past six 19 months? 20 A I can't put a number on it. It's a small number. 21 It's in single digits, but I can't tell you exactly. 22 Q In those situations was the patient already intubated? 23 A Yes. 24 Q And that means the patient was already heavily 25 sedated; is that correct?
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1 A I guess it depends on your definition of heavily 2 sedated. They were not heavily sedated. They were sedated 3 to the point that they were comfortable but awake so they 4 could follow commands. 5 Q I believe you stated that being intubated is a fairly 6 painful procedure, correct? 7 A Correct, but sedation per se does not mitigate the 8 pain. We would provide analgesics for pain relief and
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9 sedation for comfort. 10 Q And did you monitor anesthetic depth when you used 11 general anesthesia in those patients? 12 A Actually the BIS monitor is not compatible in an MRI 13 environment so I can't use it in that environment. 14 Q Did you use any other monitor to measure anesthetic 15 depth? 16 A No, I didn't. But may I add something. The patient 17 stopped moving and the radiologist told me it was -- the 18 conditions were adequate for -- to proceed. So I used that 19 as a reasonable end point. 20 Q I believe you testified before that a typical clinical 21 concentration of potassium is about .4 milliequivalents per 22 milliliter, correct? 23 A That is the concentration that we use when we're 24 delivering a large amount to a central vein. The 25 concentration that would be delivered to a peripheral vein
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1 is much lower. 2 Q Thank you. And do you know what the concentration of 3 potassium used in Missouri is? 4 A I believe it's two milliequivalents per milliliter. 5 Q How much higher is that than .4 milliequivalents per 6 milliliter? 7 A Well, it's two versus point four. 8 Q So it's quite a bit higher? 9 A Slightly higher. 10 Q So a two to one ratio versus a four to one ratio; is 11 that correct?
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12 A No, it's -- the concentration that Missouri uses is 13 2 milliequivalents per milliliter. The highest 14 concentration that I'm aware of any hospital using is 0.4 15 milliequivalents per milliliter. So it's a difference 1.6 16 milliequivalents per milliliter. 17 Q Right. But in terms of the concentration, how many 18 times -- let me ask it this way. How many times greater 19 concentration is 2 milliequivalents per milliliter than .4 20 milliequivalents per milliliter? 21 A That question doesn't make sense to me. The highest 22 concentration used clinically, as far as I'm aware, is .4 23 milliequivalents per milliliter. The concentration used in 24 Missouri is two milliequivalents per milliliter, so that is 25 a difference of 1.6 milliequivalents per milliliter. It's
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1 1.6 milliequivalents per milliliter higher in the judicial 2 execution in Missouri than the highest concentration used 3 in a hospital, of which I'm aware. 4 Q And is the concentration of two milliequivalents per 5 milliliter ever used in a clinical setting? 6 A Not that I'm aware of. 7 Q Has any research been done on it? 8 A I wouldn't know. 9 Q So you don't know whether two milliequivalents per 10 milliliter concentration would hurt in the femoral vein; is 11 that correct? 12 A If it did hurt it would hurt a lot less in the femoral 13 vein than it would hurt peripherally, and my suspicion is, 14 knowing the other highly-irritating drugs that are given
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15 centrally, that as far as I'm aware, no medication that 16 hurts peripherally hurts when it's given centrally. 17 Q Do you know what the concentration of the potassium 18 would end up being in the femoral vein assuming that 240 19 milliequivalents were injected within a minute? 20 A It would depend on blood flow. It's a complicated 21 calculation. I can't do it in my head, but it depends on 22 blood flow. 23 Q Can you estimate the blood flow? 24 A Not in my head. 25 Q Okay. So then you're not sure what the concentration
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1 of potassium would be in the femoral vein if it were 2 injected -3 A It would be very high, but I can't tell you exactly 4 what it is. 5 Q So in your opinion should lethal injection for 6 execution be performed using a femoral vein catheter rather 7 than a peripheral IV? 8 A I believe that that is a public policy decision that 9 should be made by those responsible, balancing the benefits 10 and the risks. It's not my job to decide what is, quote 11 unquote, better. I would make every effort to describe the 12 advantages and disadvantages, the risks and benefits, and 13 let those responsible for making the decision make the 14 decision. 15 Q And I believe you testified that a femoral vein has a 16 very -- quote, I believe this is a quote, has a very slight 17 increased degree of reliability as opposed to peripheral IV
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18 access. 19 A Yes. 20 Q So -- and you believe that peripheral IV access is 21 also reliable? 22 A Yes, but it is also deemed unreliable by some of your 23 experts, so when one balances the benefits vs. the risks, 24 the increased reliability of a femoral venous catheter is 25 worth considering based upon some of the statements that
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1 your own experts have made. 2 Q If a peripheral IV were placed by a board-certified 3 surgeon, do you believe it would be reliable? 4 A I think an IV placed by anybody with any significant 5 amount of experience is probably reliable. 6 Q So if both types of IV access are medically reliable 7 in your view, what are the medical indications for using 8 femoral access? 9 A Well, in my experience when I use a femoral IV it's 10 typically because either we do not have access to the upper 11 extremities or the neck because of the nature of the 12 patient's condition, or, for example, in certain trauma 13 patients we want to have a reliable IV below the diaphragm 14 as well as having reliable IV access above the diaphragm. 15 Q So is it fair to say you don't routinely use femoral 16 catheterization as your first choice method in inducing 17 anesthesia? 18 A Well, it depends on the nature of the patient. With 19 certain trauma patients it's definitely our first choice 20 for IV catheterization. But I will tell you that's a small
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21 fraction of the over-all population. But depending on the 22 person's presentation, the femoral IV catheter might very 23 well be the preferred and initial site for IV placement. 24 Q So whether the femoral IV is the preferred initial 25 site for placement depends on the patient; is that correct?
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1 A In a clinical scenario, that's my experience. 2 Q How many femoral venous catheters have you placed in 3 the last year? 4 A I have no idea. I don't keep track of these things. 5 Q Do you know how many you placed in the last month? 6 A No. 7 Q Can you estimate? 8 A No. It's -- it's not something that I keep track of, 9 nor could I tell you how many Big Macs I ate in the last 10 month. They have about the same level of importance to me. 11 Q Would you say that you put in femoral lines 12 frequently? 13 A I guess it depends on your definition of frequently. 14 I work in a major trauma center so it happens. Sometimes 15 the surgeons or emergency department surgeons or emergency 16 department doctors get to the patient before the anesthesia 17 team and they may have secured the femoral line before I 18 do, or my team does. But it's certainly something that we 19 use with some regularity. 20 Q I see. With some regularity. So would you be 21 surprised if I told you that somebody who performs femoral 22 catheterization all the time, thousands of times in their 23 career, sees a 10 to 20 percent over-all complication rate
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24 in their clinical practice? 25 A I think it's very important that, first of all, one
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1 define complication and one also define the purpose for 2 which the catheter is inserted. I can certainly tell you 3 that when femoral catheters are put in long-term for 4 dialysis patients, nobody would agree that there's a 20 5 percent incidence of complications, because it just doesn't 6 happen. 7 Q And if an artery were punctured in the course of 8 femoral catheterization, would the hematoma be bigger than 9 just a venous puncture? 10 A Assuming that the hole was the same size in the 11 arterial venous puncture, more blood would leak out through 12 the artery until tamponade is achieved than from a vein 13 because the pressure is higher. 14 Q I see. And I believe you testified that the 15 appropriate treatment is to use pressure to stop the 16 bleeding? 17 A Yes. 18 Q So you would disagree that the appropriate treatment 19 from an arterial puncture is to allow the -- allow the 20 puncture to bleed until the blood is naturally stopped by 21 the pressure? 22 A First of all, I would apply pressure and between 23 pressure and the blood's normal clotting ability, the hole 24 generally seals in a matter of seconds, or a minute or 25 two. Also, again, dependent upon the size of the hole,
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1 there may be continued leakage. Sometimes it's 2 imperceptible to the person standing there whether or not 3 there's continued leakage, and it typically does end up 4 sealing itself after a period of time due to the tamponade 5 effect. 6 Q About how much blood would be -- do you have any idea 7 about how much blood would come out before it sealed 8 itself? 9 A It depends on so many variables - the site, the exact 10 site at which it's punctured and the physical make-up of 11 the patient - that I cannot even begin to estimate how much 12 blood could be present in a hematoma there. 13 Q So you have no way of knowing in the abstract how 14 serious that kind of hematoma would be? 15 A Certainly it depends on your definition of serious. 16 If you define serious as life-threatening, that's very 17 difficult to imagine. 18 Q So you have no way -- then let me rephrase. You have 19 no way of knowing how painful a hematoma might be from an 20 arterial puncture, in the abstract? 21 A Well, if I was concerned that the person were in pain 22 I would ask. 23 Q Are some people relatively resistant to the effects of 24 thiopental? 25 A There are some people who require slightly greater
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1 doses than others and the most common reason would be the 2 co-administration of concurrent medications or the frequent
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3 ingestion of alcohol. 4 Q So does that relative resistance have anything to do 5 with metabolizing thiopental? 6 A No, because in the context of a judicial execution, 7 which takes a few minutes, metabolism is a completely 8 unimportant and irrelevant paramater. 9 Q So if I told you that John Doe One stated in his 10 deposition, Page 27, quote: "The extra gram" -- or "One 11 gram of thiopental will cause 90 percent of the population 12 to be unconscious. The extra gram is for that small 13 percentage of drug addicts that had excessive drug use. 14 They produce enzymes in the liver that allows them to 15 metabolize pentothal at a much more rapid rate," would you 16 agree or disagree with that statement? 17 A Well, it depends upon two things. First of all, it 18 assumes that the person has been recently and regularly 19 using drugs, and second of all, it assumes that their abuse 20 drug is something that does produce liver enzymes. But if 21 both of those things were true, then that's a true 22 statement. 23 Q But I believe you just said before that metabolism of 24 pentothal is not a relevant factor in determining 25 consciousness.
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1 A Metabolism per se does not affect the probability of 2 consciousness or the time to awakening when large doses of 3 thiopental are used in a judicial execution. 4 Q Is thiopental best described as a sedative or an 5 anesthetic?
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6 A Pharmacologically we describe it as a sedative

7 hypnotic drug meaning that at low doses it produces

8 sedation and at high doses it produces hypnosis. Now, to a

9 pharmacologist, hypnosis means loss of consciousness. It

10 has nothing to do with what they do in nightclubs. It's a

11 pharmacological term meaning loss of consciousness.

12 Q So at high doses thiopental has hypnotic properties?

13 A No. In the context of producing unconsciousness it

14 can produce an anesthetic state.

15 Q So you disagree with the statement that thiopental has

16 no anesthetic properties whatsoever?

17 A I think that that is misstated as far as being

18 linguistically correct.

19 Q So if I told you that John Doe One stated that, you

20 would feel that was incorrect?

21 A Well, I read his deposition and I disagree with that

22 statement.

23

MS. ANDERS: If I could have a moment, Your

24 Honor.

25 Q (By Ms. Anders) Is mixing the thiopental difficult?

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1 A No. 2 Q And I think you actually testified that it was not 3 difficult; is that correct? 4 A That's correct. 5 Q So if I told you that John Doe One stated, "I am the 6 one that always mixes the pentothal because it's very 7 difficult for someone who is not used to this to accomplish 8 it." You disagree with that statement?

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9 A I think it depends upon a person's background and 10 training, but certainly most people who are intelligent can 11 be taught to mix up a drug like thiopental properly. It's 12 not intuitively obvious how to do it when you're handed the 13 materials, but I don't think training somebody to do it is 14 difficult. 15 Q And you think a board-certified surgeon would have the 16 expertise to mix thiopental properly? 17 A I would hope so. 18 Q Does propofol have to be administered through a 19 continuous infusion? 20 A Propofol? We are switching to propofol now? 21 Q Just a question. 22 A I just want to make sure. Propofol can be given by 23 bolus or by infusion, either way. 24 Q So you disagree with the statement that it requires a 25 continuous IV infusion?
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1 A I think in that context, propofol is much shorter

2 acting than thiopental, so if one wants a prolonged effect

3 one would give repeated boluses or a continuous infusion

4 for a prolonged effect.

5 Q Thank you.

6

MS. ANDERS: Nothing further, Your Honor.

7 REDIRECT EXAMINATION BY MR. PRITCHETT:

8 Q Early in the cross-examination you were asked whether

9 or not the amount of the thiopental that was given in the

10 last few executions was what you presumed it to be in your

11 modeling, your charts, when you testified in January.

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12 A Yes. 13 Q And I believe you indicated that the dose of 14 thiopental that was actually given was less, 2.5 instead of 15 five grams. 16 A Yes. 17 Q And I believe you also testified that the amount of 18 the diluent was different than what you had assumed in 19 making your initial analysis in this case that you provided 20 testimony on in January. 21 A Yes. 22 Q And the amount of diluent was reduced to less than 23 what you had assumed back in January. 24 A Yes. 25 Q And the rate of administration was also different than
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1 what you had assumed in your initial analysis; is that 2 correct? 3 A Yes. 4 Q And the rate of administration was greater than what 5 you had thought. 6 A Yes, the time to complete the administration was less. 7 Q Despite all those differences, the decrease in the 8 thiopental, the decrease in the diluent, the increase in 9 the administration rate of the drug, does that have any 10 meaningful -- does that make any meaningful difference in 11 your conclusions that you testified to in January? 12 A No, because these changes result in changes in 13 probabilities of consciousness that are extremely tiny to 14 begin with, and if we change one very tiny number to
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15 another very tiny number, in my opinion it makes no 16 meaningful scientific difference in whether or not the 17 execution meets what most people would consider the 18 definition of humaneness, meaning a very high probability 19 of unconsciousness. 20 Q Did I hear you testify as part of the 21 cross-examination that you saw no clinical difference 22 between the use of the execution process in Missouri and 23 that that was used in North Carolina in the recent 24 execution with the BIS machine? 25 A Yes. Missouri has recently used 2.5 grams, which is
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1 slightly different from the three grams that they use in 2 North Carolina, and the time to administer may be a little 3 different. In Missouri the 2.5 grams is dissolved in a 4 much lower volume of diluent than they use in North 5 Carolina. However, in North Carolina the three grams, 6 although it is dissolved in the usual clinical 7 concentration, result in a much larger volume. And the 8 way that it's administered in North Carolina is to have 9 two executioners each with a syringe each injecting 10 simultaneously into an IV so that the overall speed of 11 completing the injection does not seem to be different by 12 more than a few seconds at most between North Carolina and 13 Missouri, as far as I can tell. 14 Q You were also asked in cross-examination whether you 15 were -- and I think this is close to a quote -- certain 16 that Dr. Henthorn's analysis was wrong. 17 A I think that his analysis --
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18 Q Before you -- does that pretty adequately, accurately,

19 summarize your testimony?

20 A I am certain that there is an assumption on which his

21 analysis is based that is flawed.

22

MR. PRITCHETT: Judge, I know you sustained the

23 objection to the discussion of what that assumption was in

24 the direct portion of the testimony. I think the door has

25 been open now and I would ask the opportunity to explore

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1 that with the witness.

2

MS. ANDERS: I object, Your Honor. We have had

3 absolutely no notice of what this might be. We haven't had

4 a chance to ask our expert about it, and we haven't been

5 able to depose Dr. Dershwitz on his views.

6

THE COURT: I don't see that the

7 cross-examination put that in any better posture, so

8 objection is overruled -- or sustained rather.

9 Q (By Mr. Pritchett) You were also asked towards the

10 end of your cross-examination about Dr. Doe's testimony

11 that thiopental is not an anesthetic, and you disagreed as

12 a general matter with that conclusion.

13 A Yes.

14 Q Does that clinical either difference of opinion or

15 mistake, however it should be described, does that have a

16 clinical -- does that make a clinical difference in this

17 case?

18 A Well, in my opinion as long as Dr. Doe succeeds in

19 properly providing an adequate dose, which is, in my

20 opinion, at least 1.5 to two grams of the thiopental,

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21 properly delivered to the IV, it will have no meaningful 22 effect on the conduct of a judicial execution. And so the 23 fact that he made some pharmacological mistakes in his 24 deposition does not contradict his statements about how 25 much thiopental he says he gave, and the amount that he
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1 said he gave was adequate to conduct a humane execution.

2 Q And then I think very nearly at the close of your

3 cross-examination you were asked about how difficult it is

4 to mix thiopental, and we understand that it is a fairly

5 simple process. What's your understanding, if you have

6 one, of why Dr. Doe was having difficulty with mixing the

7 thiopental in the execution context?

8 A My understanding from his deposition is that when

9 Missouri formerly used a five-gram single dose container of

10 thiopental, he was able to dissolve that five grams of

11 thiopental in an amount of diluent that would fit in a

12 60 millimeter syringe.

13

Subsequently, the State has procured the

14 thiopental as 500 milligram injection kits, which is

15 actually the standard preparation that we use at my

16 hospital, and he then said that he was unable to put five

17 grams in 60 milliliters of diluent. I think there's two

18 possible explanations that make pharmacological sense about

19 why this difference may have occurred. First of all, we

20 know that thiopental is more soluable in water than it is

21 in saline so one possibility is the preparation that was

22 formerly used came with water as the diluent and the

23 current preparation could have saline as the diluent

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24 because depending on the manufacturer from which the 25 thiopental is procured some use water and some use saline.
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1 So that is a systematic change that may have occurred,

2 although I can't say that for certain, but it is a

3 possibility.

4

The other possibility is because the manufacturer

5 intends that the medication be prepared as a 2.5 percent

6 solution, there's no reason for them to make any

7 manufacturing efforts to make it soluable at a higher

8 concentration. And so it is possible that from one

9 manufacturer to the other the crystalline structure of the

10 medication itself is such that it was not soluable at the

11 higher concentration as compared to the lower

12 concentration.

13

For example, thiopental is not soluable at

14 neutral pH. In order to get it into solution, the pH

15 has to be elevated to approximately 11. Now, if one

16 manufacturer had it at 10 and a half and the other

17 manufacturer had it at 11 and a half as buffered in the

18 solid state, there would be an enormous difference in

19 maximum solubility. Yet, in both cases they meet FDA

20 requirements for clinical use of 2.5 percent. So it's

21 not the least bit surprising to me that there were

22 differences in the behavior of batches from different

23 manufacturers.

24

MR. PRITCHETT: Thank you, Doctor.

25

MS. ANDERS: Just a couple question, Your Honor.

338

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1 RECROSS-EXAMINATION BY MS. ANDERS: 2 Q How much training did you undergo to become an 3 anesthesiologist? 4 A Well, if one starts with college, I have a degree in 5 chemistry which most medical students have a bachelor's 6 degree before entering medical school. Then I did four 7 years of medical school. And then an internship, two years 8 of residency, and a two-year research fellowship. In 9 addition, I also have a Ph.D in pharmacology which has been 10 very useful to me as an anesthesiologist, which took an 11 additional four and a half to five years. 12 Q So would you say that inducing anesthesia, general 13 anesthesia, is a complex process? 14 A Inducing general anesthesia is actually pretty easy. 15 Q So it's really not necessary to have all that 16 training? 17 A Well, it depends on the scenario. What's hard is to 18 wake the patient up. But putting people to sleep, I'm not 19 trying to be facetious, putting people to sleep is actually 20 relatively easy. Keeping them stable and alive and waking 21 them up again is the hard part. 22 Q Is monitoring the anesthetic depth of a paralyzed 23 patient, is that complex? 24 A Clinically that could be very complex. That's one of 25 the reasons why some of the new monitors have become very
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1 helpful to some of us. 2 Q Are you aware of whether John Doe One uses the diluent
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3 in the package that comes from the manufacturer?

4 A I'm assuming he does, because there's no description

5 that he acquires a diluent from another source.

6 Q But you don't know for sure; is that correct?

7 A Well, again, he describes using what's in the kit and

8 the kit in which the 500 milligram dose comes, he describes

9 having two separate containers, one container with powder

10 and one container with diluent and he's mixing them

11 together, so I have to conclude that he's using the diluent

12 that comes in the kit. And as I said, depending on which

13 manufacturer supplies the medication, some manufacturers

14 use water and some manufacturers use saline.

15 Q And you can't say for sure why the thiopental didn't

16 dissolve; is that correct? I understand that you gave a

17 couple of possibilities, but --

18 A I can't say for sure which of the two examples was

19 more important. It's possible that both were operative,

20 but I don't know for sure.

21

MS. ANDERS: Nothing further, Your Honor.

22

MR. PRITCHETT: No further questions from the

23 defense, Your Honor.

24

THE COURT: Thank you, Doctor.

25

MR. PRITCHETT: Call Terry Moore to the stand,

340

1 please. 2 TERRY MOORE, called as a witness on behalf of the 3 Defendant, being first duly sworn, testified: 4 DIRECT EXAMINATION BY MR. PRITCHETT: 5 Q Would you state your name for the record, please.

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6 A Terry W. Moore. 7 Q What's your position, Mr. Moore? 8 A I'm the director of the Division of Adult Institutions 9 with the Missouri Department of Corrections. 10 Q So the Division of Adult Institutions is a subagency 11 of the Department of Corrections? 12 A Yes, sir, it is. 13 Q When did you become the director of the Division of 14 Adult Institutions? 15 A August 1st, 2005. 16 Q Do you have a role in the execution process as used 17 by the Department of Corrections in Missouri? 18 A Yes, sir, I do. 19 Q To your understanding, who is the person with the 20 authority to set the method of execution in Missouri within 21 the confines of state statute and case law? 22 A The director of the Department of Corrections. 23 Q Do you recall testifying in this case back in January? 24 A Yes, sir. 25 Q Did you state at that time that your understanding --
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1 what your understanding was as to the dosages of the drugs 2 that were administered in the lethal injection in Missouri? 3 A Yes, sir, I did. 4 Q And with respect and in particular to the sodium 5 pentothal, at that time what was your understanding of the 6 amount of sodium pentothal administered in executions in 7 Missouri? 8 A Five grams.
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9 Q Have you since found out that less than five grams of 10 sodium pentothal has actually been given at the last 11 several executions? 12 A Yes, sir, I did. 13 Q How were you able -- how did you find that out? 14 A As a result of some of the discovery in this 15 particular case, and I was advised by our attorney and I 16 think it was May 18th that I was told. 17 Q Who is it that you understand made the decision to 18 alter the dose of thiopental? 19 A The physician involved. 20 Q Or sodium pentothal. The physician. What's your 21 understanding as to the amount of the drug that was 22 administered in the last several executions? 23 A 2.5 grams. 24 Q As far as you know, did the doctor act on his own, at 25 his own discretion, in reducing the dosage?
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1 A Yes, sir, that is correct. 2 Q What's your understanding as to why the doctor thought 3 he had the authority to alter the dose on his own? 4 A Well, he's been involved in the execution process with 5 the state of Missouri for many years and it's my 6 understanding that he thought that based upon his medical 7 knowledge that he had the duty and responsibility to make a 8 decision based upon the goals of the Department of 9 Corrections to do an execution that is quick and as humane 10 as possible. 11 Q Had the doctor been involved in the execution process
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12 in the state of Missouri for some time? 13 A Yes, sir, he has been. 14 Q And had his recommendations, his thoughts as to how 15 the process should work, have they been relied upon by the 16 Department over the course of time, as you understand it? 17 A Yes, they have been. 18 Q Now that we have learned that, in the last several 19 executions, there was a 2.5 gram dose as opposed to a five 20 gram dose of sodium pentothal used, what's your view as to 21 that situation? 22 A Well, it should never have occurred and I hate that it 23 did, but I can understand why the doctor made the decisions 24 that he made, once again, based upon his medical knowledge, 25 his involvement in the process, and also him wanting to
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1 make sure that the Department of Corrections completed 2 their goal. And I think that the 2.5 was adequate in being 3 administered and to keep the offender sedated and 4 unconscious during the process and that the ones that I 5 have been involved with, they have gone very smooth. 6 Q Are you aware of any changes that are planned by the 7 Department of Corrections to firm up the procedure and to 8 ensure that proposed modifications in the procedure are 9 referred to the director, for the director's decision? 10 A Yes, sir, I am. 11 Q As general matter, what is planned by the Department 12 of Corrections in this regard to firm up the process? 13 A To come out with a more detailed, more direct policy 14 and procedures dealing with the execution process that will
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15 delineate the amount of dosage that are supposed to be 16 used, the sequence in which they are to be given, and that 17 any changes that are to be made are to be in the sequenced 18 amount and so forth and will be approved by the Department 19 of Corrections before they're done. 20 Q Does that document, directive, policy, whatever you 21 want to call it, has that been drafted as of this time? 22 A No, sir, it has not. 23 Q Have certain determinations been made as to what the 24 contents of that directive will contain? 25 A Some of them have, yes, sir.
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1 Q And --

2

THE COURT: Why is all of this relevant to this

3 procedure, Mr. Pritchett?

4

MR. PRITCHETT: Judge, I think it's relevant to

5 show the court that we understand that there was a

6 deviation, an aberration from the process as described

7 before, and actions are being taken so that it doesn't

8 happen again, so that the Department of Corrections can be

9 confident that the process will be as described.

10

THE COURT: Okay. I still don't think it's

11 relevant, because it's in court now, that issue is going to

12 be ultimately decided by this court and this court is

13 probably going to fashion something, if it deems it

14 appropriate, that may or may not be consistent with the

15 Department of Corrections, and at some point in time if

16 that occurs the court will have to look at what the

17 Department does. But in terms of what it's doing now,

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18 other than what you have just stated, is not relevant to

19 me. But proceed.

20

MR. PRITCHETT: Thank you, Judge.

21

THE COURT: You have your time.

22

MR. PRITCHETT: And I really do not intend to

23 belabor the point. I just wanted to get the expectations

24 out into the record and in front of you, and in the spirit

25 of not belaboring it I think we'll talk about the details

345

1 of the process with the director in his testimony. 2 Q (By Mr. Pritchett) Are there also plans under way, 3 though, to attempt to ensure that the requirements of any 4 policy that is developed will actually be carried out? 5 A Yes, sir, there is. 6 Q And what are those? 7 A Each one of the individuals that's involved in the 8 process will have consultation, go through the policy, and 9 once the policy is over with, we'll have a -- kind of like 10 a debriefing, auditing team, and then we'll go back through 11 to make sure everything was done the way it was supposed to 12 be done, that procedures were followed. 13 Q And will emphasis be placed on what decisions are 14 matters that have to be referred to the director and what 15 decisions are matters of discretion to certain individuals? 16 A Yes, sir. 17 Q Do you have knowledge as to the lighting as it exists 18 in the execution support room, the room where the persons, 19 the doctor, the nurse and John Doe stand? 20 A Yes, sir.

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21 Q Before the execution is actually under way, what is 22 your understanding as to the lighting in that room? 23 A All of the lights are on and it's very bright. 24 Q Are the drugs prepared while the lights are on and 25 sufficiently bright to be able to see?
346
1 A Yes, sir, they are. About one hour before the 2 execution is scheduled. 3 Q Okay. Are the drugs then -- the syringes laid out in 4 any particular manner? 5 A Yes, sir, they are. 6 Q And what manner is that? 7 A They are laid out in the sequence in which they will 8 be administered. 9 Q When it's time to begin administration of the drugs, 10 is there a change in the lighting in the execution support 11 room? 12 A Yes, sir, there is. It is decreased. 13 Q Do you know why that is? 14 A It is to ensure that the reflective window operates 15 properly. 16 Q Is there -- is it dark? Is it too dark to be able to 17 see the medications, the drugs that have been laid out at 18 that time? 19 A It is dark, but they can still read the names on the 20 syringes, the names that have been printed on the syringes. 21 Q Is it sufficient to do the work of the persons that 22 are administering the drugs? 23 A Yes, sir, it is.
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24

THE COURT: Are you back there when this is

25 happening, Mr. Moore?

347

1

THE WITNESS: No, sir, I'm not.

2 Q (By Mr. Pritchett) There's also been some reference

3 to the experience level of particularly John Doe Three and

4 John Doe Five. Are John Doe Three and John Doe Five

5 particular individuals, or is this a designation for some

6 class of duty within the prison?

7 A They are particular individuals.

8 Q Does John Doe Three have experience in the

9 administration of the lethal drugs?

10 A Yes, sir.

11 Q Can you tell us what that experience is?

12 A I don't know the exact number but many, many, many

13 executions, for several years.

14 Q So he's been involved in the process as a participant

15 for some time?

16 A That is correct.

17 Q And are you aware of John Doe Five's level of

18 experience?

19 A John Doe Five has been involved in at least the last

20 five.

21 Q And has he taken part in the process with John Doe

22 Three?

23 A That is correct, yes, sir.

24 Q And is John Doe One, the doctor, also present at the

25 time?

348

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1 A Yes, sir.

2 Q And is it your understanding that before John Doe Five

3 actually took part in an execution there was some practice

4 in the process?

5 A Yes, sir.

6

MR. PRITCHETT: Thank you. That's all I have,

7 Mr. Moore.

8 CROSS-EXAMINATION BY MR. BERGER:

9 Q Good afternoon, Mr. Moore.

10 A Good morning.

11 Q You said in prior testimony in this case that Missouri

12 injected five grams of thiopental, right?

13 A That is correct, yes, sir.

14 Q And you believed this to be true at the time you said

15 it, didn't you?

16 A Yes, sir, I did.

17 Q But that's not what happened, is it?

18 A From the records and from what I have been told, no,

19 that did not occur. Not in the last four I think it is.

20 Q But you don't mix the thiopental, do you?

21 A No, sir, I do not.

22 Q So at the time you testified in January you couldn't

23 have known that five grams weren't going to be used, could

24 you have?

25 A No, but I think if you look at my testimony I think I

349

1 said to the best of my knowledge, because I think Mr. Simon 2 even asked me the question about what do you mean by the

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3 best of your knowledge, and I had to explain where my 4 knowledge came from. 5 Q But so based on your level of knowledge, it wasn't 6 your fault that the wrong amount was stated. 7 A No, sir, it was not. 8 Q You mentioned a moment ago the goals of the execution 9 procedure. What are those goals? 10 A It's basically to ensure that a humane and quick 11 execution occurs once the order has been issued by the 12 Missouri Supreme Court. 13 Q And how do you prioritize those goals? 14 A I don't know that it's necessarily prioritized as 15 quick or humane either way. 16 Q If there were to be a difference between carrying out 17 a quick execution and an humane execution, would you assign 18 different levels of priority to those competing goals in 19 the event that they were to diverge? 20 A Humane. 21 Q Are these goals recorded anywhere? 22 A Not that I'm aware of. 23 Q Have you discussed these goals with John Doe One? 24 A I personally have not, no, sir. 25 Q Your position is the director of Adult Institutions;
350
1 is that correct? 2 A Yes, sir. 3 Q And part of your responsibility is to oversee the 4 execution procedures, right? 5 A It is in one of the institutions in which I'm the
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6 director of the superintendent of that particular 7 institution. It's actually the responsibility of the 8 director of the Department of Corrections. 9 Q I see. Where is your office? 10 A In Jefferson City. 11 Q But the execution facility is in Bonne Terre, right? 12 A That is correct, yes, sir. 13 Q How many miles away is that, about? 14 A 140. 15 Q Now, do you travel that distance and attend every 16 execution? 17 A Since I have been the director of the Division of 18 Adult Institutions, yes, sir. 19 Q And do you intend to continue to attend each execution 20 as long as you remain in that position? 21 A Yes, sir. 22 Q So what are your responsibilities when you're at an 23 execution on execution night? 24 A I have a checklist of things that I do and such things 25 as to verify that the drugs have been mixed, that they're
351
1 ready to go, that the stretcher is in place and then the -2 I end up actually leading the state's witnesses to the 3 state witness viewing room, stay there with them and then 4 announce to them as the procedure occurs, and then lead 5 them back out once the procedure is completed. 6 Q I see. So you spend -- is it correct that you spend 7 some time in the execution support room and some time in 8 the witness rooms?
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9 A No, that is incorrect. 10 Q I'm sorry. Where are you when the actual execution is 11 taking place? 12 A In the state witness viewing room. 13 Q Okay. 14 A I am not in the support room, the actual execution 15 support room. 16 Q Are you ever in the support room prior to the 17 commencement of the execution? 18 A No. 19 Q Are you trained in anesthesia? 20 A No, sir, I am not. 21 Q Are you trained in pharmacology? 22 A No, sir, I am not. 23 Q Are you trained in pharmacokinetics? 24 A No, sir. 25 Q Are you trained in femoral line insertions?
352
1 A No, sir. 2 Q Do you have any medical training? 3 A Other than the normal CPR, first-aid, that type stuff, 4 no. 5 Q So for the executions you have attended, do you stand 6 anywhere near John Doe One when he mixes the chemicals? 7 A No, sir, I do not. 8 Q Do you stand near him when he inserts the femoral 9 catheter? 10 A No, sir. 11 Q And am I right you don't stand behind John Doe Three
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12 and Five when they inject chemicals?

13 A That's correct.

14 Q And do you watch John Doe Two and Five fill in the

15 chemical logs?

16 A No, sir, I do not.

17 Q And even if you were with John Doe One when he were

18 mixing the chemicals, would you understand what you were

19 seeing?

20 A Not unless I was trained, no, sir.

21 Q And if John Doe One were to recommend or implement

22 particular injection times, would you know whether that

23 creates a significant risk of pain?

24 A No, sir.

25

THE COURT: Mr. Berger, I think you're over-

353

1 emphasizing an answer -- or questions, the answers which we

2 know already. Let's go on to something pertinent and

3 different, please.

4

MR. BERGER: Okay. Thank you, Your Honor.

5 Q (By Mr. Berger) Isn't it true, Mr. Moore, that you

6 need to rely on John Doe One to mix the chemicals properly?

7 A John Doe One and then also the nurse.

8 Q Can the nurse tell John Doe One what to do?

9 A The nurse can offer an opinion, make suggestions.

10 Q Is your understanding -- based on your understanding,

11 who is in charge of the mixing process?

12 A The doctor.

13 Q And based on your understanding, who has made the

14 decisions about dosage, particularly on the evenings when

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15 there has been some difficulty mixing the thiopental? 16 A The doctor. 17 Q And you rely on John Doe One for all the other medical 18 decisions that need to be made with the timing of the 19 executions and the placement of the femoral line and so on; 20 is that correct? 21 A Once again, John Doe One and the nurse. 22 Q And you have testified that you rely on John Doe One's 23 representation as to whether the EKG machine is set, right? 24 A Yes, sir. 25 Q Do you accept the proposition that the safety of a
354
1 given medical procedure depends on the manner in which it 2 is undertaken? 3 A Yes, sir. 4 Q Do you accept the proposition that the safety of a 5 given medical procedure depends on the qualifications and 6 judgments of the person or persons administering it? 7 A Education and training, yes, sir. 8 Q Did John Doe One ever tell you, prior to your 9 testimony, that he was giving less than five grams? 10 A No, sir, he did not. 11 Q Did he ever tell you he was having trouble mixing the 12 thiopental? 13 A No, sir, he did not. 14 Q Did he ever tell you that he was dyslexic and had 15 difficulty with numbers? 16 A No, sir, he did not. 17 Q Did he ever give you an opinion on the relative
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18 advantages of femoral access as compared with peripheral 19 access? 20 A We did have an overall broad discussion about that 21 topic. 22 Q What did he say? 23 A The emphasis was that the flow of the drugs would go 24 better through the femoral vein catheter than if it was a 25 peripheral.
355

1 Q Did you talk about how much pain each of the two

2 procedures would have relative to each other?

3 A No, sir, we did not.

4 Q Did you talk about the possible medical complications

5 that could arise with each procedure?

6 A No, sir.

7 Q Did you talk about anything else other than the flow

8 of drugs?

9 A Not that I recall, no, sir.

10 Q On --

11

THE COURT: Mr. Berger -- when did you have this

12 discussion, Mr. Moore, with John Doe One?

13

THE WITNESS: It was at one of the executions.

14 Probably October 2005.

15

THE COURT: Excuse me.

16

MR. BERGER: Thank you, Your Honor.

17 Q (By Mr. Berger) On page 89 of his deposition

18 transcript John Doe One says medical errors are committed

19 by someone performing a procedure for the first time. Does

20 this sound right to you?

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21 A I would say there is a possibility of that, yes, sir. 22 Q So to the extent -- John Doe One also says that any 23 doctor who has performed any procedure more than ten times 24 will never make in a error. Does this seem right to you? 25 A Will never make an error?
356
1 Q Yes, Mr. Moore. 2 A No, sir, that does not seem correct. 3 Q In your judgment, do you feel comfortable employing or 4 contracting with someone to take part in medicalized 5 procedures who believes this to be the case? 6 A I have confidence in his capabilities. 7 Q Would it change your mind to find out that his view on 8 that and many other significant issues connected with this 9 procedure were widely rejected by many or most doctors? 10 A I would say that it's something that we definitely 11 need to have a detailed, thorough discussion about. 12 Q Would a statement like the one I just quoted to you 13 raise questions in your mind about John Doe One's judgment? 14 A No, sir. 15 Q Have you spoken with John Doe One over the past few 16 weeks during this litigation about his continued 17 participation in executions in Missouri? 18 A No, sir, I have not. 19 Q At page 62 of his deposition transcript, John Doe One 20 discussed his authority vis-a-vis the director of prisons. 21 He said, "He's relying on me to keep him looking good." Do 22 you think the inconsistencies in dosage reflect well on 23 Missouri's Department of Corrections?
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24 A I don't know what he's referring to when he says to 25 keep him looking good. If I knew what the context of his
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1 statement was, then -2 Q If he were to mean that part of the doctor's role in 3 this process is to help things go smoothly so that the 4 Department looks good and it looks like they're carrying 5 these things out in a systematic manner and in a way to 6 ensure a painless, humane death, do you think that the 7 inconsistencies reflect well on the Department of 8 Corrections? 9 A It does not reflect well, and once again, you know, 10 I'm sorry that it happened, but we need to ensure that it 11 doesn't happen again, and that's the reason we're in the 12 process of formulating additional new policies. 13 Q As you formulate those additional policies, will you 14 be in touch with John Doe One? 15 A Yes, we will. 16 Q Based on what's happened already and what has been 17 said in this litigation, do you have confidence in John Doe 18 One's competence to carry out executions in Missouri? 19 A Yes, I do. 20 Q So you intend to continue to allow John Doe One to 21 keep his position in the execution procedure; is that 22 correct? 23 A I won't be the final authority to make that decision. 24 Q What factors -- will you play a role in that decision? 25 A Yes, sir, I will.
358
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1 Q What are the factors that you would weigh in that 2 decision? 3 A Advice from other medical experts, what direction we 4 get from the courts. 5 Q Have you been in touch with other medical experts? 6 A Other than reading some of the information that has 7 come across to me as a result of this particular case, no, 8 I have not. 9 Q Do you intend to get in touch with other medical 10 experts about John Doe One's competence and professional 11 judgment? 12 A We will have an over-all staff team meeting of those 13 people who are currently involved in the process, the top 14 managers of the Department of Corrections, and we will lay 15 out a strategy as to what we are going to do from this 16 point forward. 17 Q Would John Doe One be at that meeting? 18 A John Doe One could be at some of the meetings. 19 Q But you don't imagine he would be at all of them? 20 A Depends on what the discussion is about. 21 Q Would you have any other doctors at that meeting? 22 A There could be. 23 Q But there would not definitely be other doctors at 24 that meeting? 25 A We haven't laid out what our strategy is going to be.
359
1 Q How could you assess John Doe One's competence in that 2 meeting -- what would you rely -- strike that. What would
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3 you rely on during that meeting to assess John Doe One's

4 competence were there not other doctors in the room at the

5 time?

6 A I guess a lot of it just depends on the context of the

7 meeting itself, what that particular meeting is about and

8 what concerns that are raised about his competency, and at

9 that point we would decide then whether to continue to have

10 this particular physician or a particular discussion

11 related to what needs to change.

12 Q So that would be based --

13

THE COURT: Mr. Berger, how much more time are

14 you going to take with this examination?

15

MR. BERGER: Not much, Your Honor. Perhaps five

16 more minutes.

17

THE COURT: You have three.

18

MR. BERGER: Thank you, Your Honor.

19 Q (By Mr. Berger) So am I correct that would then be

20 based certainly on the information that's come to light

21 during the course of this litigation and possibly input

22 from other doctors?

23 A Yes, sir, that would be part of it.

24 Q Was it frustrating to find out after the fact that you

25 had misrepresented the dose to this court?

360

1 A It was frustrating. It was disappointing. But here 2 again, based upon the information that I had at the time I 3 did not misrepresent myself to the court. 4 Q And didn't you just testify that this should never 5 have occurred?

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6 A This should never have occurred, being the doctor 7 should not have reduced the amount of dosage without 8 getting the authority to do that by the director of the 9 Department of Corrections. 10 Q But it's correct that -- isn't it true that John Doe 11 One assisted with the writing of the interrogatories on 12 which you base your view somewhat? Let me rephrase that. 13 It's correct that if you did continue to use John Doe One 14 in executions, you would still be putting your trust in 15 him; is that right? 16 A That's correct. 17 Q Would you feel comfortable that you could 100 percent 18 guarantee that the procedure would be followed as you 19 instruct? 20 A Once we lay out the additional policies, have 21 discussions with him, yes, sir. 22 Q Wouldn't you have some lingering reservations about 23 using him based on his misrepresentations? 24 A No. Once we lay out the policy and have a discussion 25 with him.
361
1 Q Mr. Crawford is the director of the Department of 2 Corrections; is that correct? 3 A That's correct. 4 Q And you say he's working on a directive ordering that 5 five grams be administered and other things; is that 6 correct? 7 A That's correct. 8 Q And you fully intend to comply with that directive to
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9 inject five grams; is that correct?

10 A Yes, sir.

11 Q So you wouldn't have any objection to this court

12 entering an order requiring the state to, for instance,

13 inject five grams, would you?

14

MR. PRITCHETT: Objection, Your Honor. I think

15 it's in a way seeking a legal conclusion, and also

16 infringing upon what the court chooses to do.

17

THE COURT: Objection sustained.

18

You have one minute to wrap it up.

19

Thirty seconds.

20 Q (By Mr. Berger) Are still relying on the same people

21 you did in January when you said that the amount of

22 thiopental is now five grams?

23 A That is correct, with the addition of Dr. Dershwitz.

24

MR. BERGER: No further questions.

25

Thank you, Your Honor.

362

1

Thank you, Mr. Moore.

2

MR. PRITCHETT: Defense has no additional

3 questions, Your Honor.

4

THE COURT: Thank you.

5

THE WITNESS: Thank you, sir.

6

THE COURT: How many more witnesses do you have?

7

MR. PRITCHETT: One.

8

THE COURT: Mr. Crawford.

9

MR. PRITCHETT: Yes.

10

THE COURT: Why don't we take a short lunch break

11 and then finish up with Mr. Crawford.

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12

MR. PRITCHETT: I don't think he'll take much

13 longer than Mr. Moore. You have told me it's pretty much

14 irrelevant to you what the plan is, but I'd like to get it

15 in the record.

16

THE COURT: I understand that, but I'm saying

17 this is kind of after the fact now. It's interesting to

18 know that they're going to do something, but all the

19 details of it doesn't do anything for me at this point.

20

MR. PRITCHETT: Okay.

21

THE COURT: Do you think he's going to be about

22 15 minutes or so; is that what you're saying?

23

MR. PRITCHETT: 15, 20.

24

THE COURT: Let's still take a break until 12:20

25 and then we'll resume.

363

1

MR. PRITCHETT: Very good.

2

MR. BERGER: Thank you, Judge.

3

(Lunch Recess)

4

MR. PRITCHETT: I call Larry Crawford to the

5 stand, please.

6 LARRY CRAWFORD, called as a witness on behalf of the

7 Defendant, being first duly sworn, testified:

8 DIRECT EXAMINATION BY MR. PRITCHETT:

9 Q With you state your name, please.

10 A First name Larry, last name Crawford.

11 Q Mr. Crawford, what's your position?

12 A I'm director of the Missouri Department of

13 Corrections.

14 Q When did you become the director of the Missouri

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15 Department of Corrections? 16 A Early January 2005. 17 Q What's your role in the execution process? 18 A Overall I have responsibility for the execution 19 process, important policy, and the carrying out of the 20 execution process. 21 Q Are you the person who has the authority to set the 22 method of execution within the dictates of Missouri statute 23 and case law? 24 A Yes. 25 Q Do you make decisions with regard to execution methods
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1 all by yourself? 2 A No. 3 Q Can you describe for us a bit, please, the process you 4 go through in order to make decisions with regard to the 5 lethal injection process in particular? 6 A When I came to the Department in early 2005, of course 7 the lethal injection process was one of the things that I 8 looked into, that I was given information about after I 9 asked. And I met with my executive-level staff as well as 10 experienced folks that had been working in that execution 11 process, and even went to the -- after we had met and 12 talked about and I looked over some of the protocols, that 13 we even traveled to Potosi at that time, is where we have a 14 correctional institution and I took a walk-through, a tour 15 of the process at Potosi. 16 Q Did you take into consideration advice that you 17 received from your executive staff in reaching decisions
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18 with regard to the lethal injection process? 19 A I do -- I do with that as well as most other 20 decision-making. It's a large Department. We have over 21 10,000 employees, and there's a lot of expertise within the 22 Department and there's a lot of specialized mission that we 23 must carry out, so I depend on my legal counsel and my 24 executive staff and others for advice, and then in my 25 decision-making.
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1 Q With regard to executions, do you rely on medical 2 advice from anyone? 3 A Oh, yes. 4 Q Who is that, how we have been describing this 5 individual in this proceeding? 6 A I have spoken with the experienced members of our team 7 that have been involved, directly involved in the 8 executions, and I have asked questions, been given 9 information about the process, about how it works, about 10 the human factor. And I want to make clear that there's a 11 lot more to this execution process than what we have been 12 talking about in court for two days, the actual injection 13 process. There's a lot of security, a lot of other 14 employees and planning involved, movements that night and 15 preparation before, so I mean as a whole, I have had a lot 16 of discussion about that. 17 Q Do you also consult with the individual identified in 18 this proceeding as Dr. John Doe One? 19 A Yes, I have. 20 Q Once you get advice from the folks that you need
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21 advice from, that you want advice from, who makes the final 22 decision with regard to executions? 23 A I do, within what's legal in the law. 24 Q Absolutely. Did you find out recently that less 25 sodium pentothal had been given in recent executions than
366
1 you originally expected? 2 A Yes. 3 Q What had been your expectation as to the amount of 4 sodium pentothal that had been given? 5 A Five grams. It's my understanding that five grams of 6 sodium pentothal had been given in all the executions 7 during my tenure, and at least some time before that. 8 Q And recently, what different amount of sodium 9 pentothal have you found out has been given in recent 10 executions? 11 A I found out it had been reduced, and I believe two and 12 a half grams had been given in some of the prior 13 executions. 14 Q Who do you understand made the decision to reduce the 15 dose? 16 A The doctor, John Doe One. 17 Q Is that a matter that you should have been informed 18 about before Dr. Doe made the decision to reduce the dose? 19 A Yes. When I first became aware of that, I was 20 extremely concerned and disappointed, particularly that we 21 had provided wrong information in a court proceeding, was 22 particularly disappointed that I wasn't made aware of a 23 change being made by the doctor.
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24

As more information came to light and I have

25 learned more about this process, and I'm still concerned,

367

1 but I have discovered some reasons why now that the doctor 2 may have made the decisions he made, but I should have been 3 notified. 4 Q What's your understanding as to the reasons the doctor 5 acted on? 6 A The difference in the packaging of the drugs didn't 7 allow him to use the amount that had been used, and 8 possibly -- possibly his understanding that a lesser amount 9 had been ordered in some other states, that it may have 10 been more appropriate, and putting those two factors 11 together allowed him to make the decision of what he 12 thought was best at that execution. 13 Q What's your understanding as to how Dr. Doe came to 14 the conclusion that he would be able to alter the dose on 15 his own? 16 A He has had a lot of history with the state of Missouri 17 and maybe -- and in the execution process. He was 18 consulted when -- back when there was little knowledge -19 less knowledge, I think, about lethal injection, and there 20 isn't a lot of experts in this field, it's not a medical 21 field, a medical procedure, and so he had put a lot of 22 effort in working this. And other directors have depended 23 on him heavily I think to provide a constitutional, humane 24 execution, and I think he's taken that very seriously and 25 feels that he has successfully been able to deliver, as
368

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1 does the Department and the people that I have talked to in 2 the Department, on the executions before I became director, 3 feel like he has done a very good job and successfully 4 completed that mission. 5 Q Other than the aspect of the question you should have 6 been informed of the decision to reduce the level, what's 7 your view as to the reduction -- what's your understanding 8 as to the reduction of the dosage from five grams to 2.5 9 grams? 10 A Well, in my first understanding of any drugs or the 11 combination of drugs that we gave going back to my first 12 month or two, my first months with the Department of 13 Corrections, the way it was described to me is that the 14 sodium pentothal was given in a dosage that was twelve 15 times the amount normally given in an operating room, a 16 surgical-type setting when sodium pentothal was used daily 17 as a drug. And that, in my mind, because I had to get a 18 feel for this whole process, the first, the beginning was 19 the drug that rendered you unconscious and that number 20 twelve stuck in my mind, five grams, and so that came -21 when I learned of the two and a half grams I immediately -22 half of five is two and a half, I went to six times the 23 amount. And it was my understanding, and I think in my 24 prior deposition, you know, I believed that both rendered 25 you in such a full state of unconsciousness to still
369
1 complete the mission. But that didn't excuse the fact that 2 it changed and without the records and without my
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3 knowledge. 4 Q Are you planning to make any changes now with regard 5 to the execution process to firm up the way that it's done? 6 A Yes, I do. 7 Q Is there a directive or an order already issued? 8 A No. We normally have, I think always have 30 days' 9 notice by the court when to set an execution. There are -10 time has been taken up some with the court proceedings and 11 a myriad of other things that are going on in the 12 Department. I have begun discussions with legal counsel, 13 other folks within the Department on how we should issue 14 this directive, and I have said very firmly and quickly 15 that we were going to put together a team and come forward 16 with a defined -- a fairly defined protocol so that this 17 didn't happen again and to set out the procedure definitely 18 what discretion there would be, the areas of discretion. 19 And also on the recordkeeping end. So we're just going to 20 make this process better and there will be a directive 21 forthcoming on that. 22 Q Have you already made some determinations as to what 23 you expect this forthcoming directive to look like? 24 A Only in general terms, that we will pull together 25 the people that are involved as well as John Doe One and
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1 come -- and there will be a clear understanding of the 2 process, notifications, and we will reach an agreement that 3 that's what we will follow, absent any order of the court 4 before then. 5 Q What's your expectation as to the amount of sodium
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6 pentothal that is going to be provided under the proposed 7 directive? 8 A Five grams, I guess mixed in a 60 cc solution would be 9 my full intentions of what will happen in the directive. 10 Q Given the packaging issues that the doctor needs to 11 know, is there going to be some leeway with regard to 12 whether or not the five grams of pentothal are going to be 13 administered in one 60 cc syringe? 14 A Yes. If it's not able to be delivered in a single 15 syringe, which may be preferable, but if it's not it could 16 be administered in more than one syringe but it will be, 17 absent any further -- a different order, five grams in a 18 60 cc solution in one or more syringes followed with a 19 flush. 20 Q Okay. Is there going to be any amount of flush 21 mandated? 22 A No. I have thought that through and talked to some 23 folks because I believe there is some discretion that 24 should be allowed for the best practices that would be the 25 amount of flush necessary to clear the lines and clear the
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1 drug. I expect that will probably be about 30 cc's, 2 approximately. But there would be discretion on the staff 3 on that, 30 cc's or half of a 60 cc syringe that's 4 currently being used. 5 Q After the flush that follows the sodium pentothal, 6 what's the expectation as to the next drug? 7 A The next drug would be pancuronium bromide. It would 8 be 60 milligrams mixed in a 60 cc solution, also followed
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9 by a flush with discretion, but very similar to the first 10 drug, about the other half, approximately, of that 60 cc 11 syringe. 12 Q And then with regard -- after the second flush, the 13 flush following the pancuronium what's expected to follow 14 that? 15 A The third drug would be the potassium chloride, 16 240 milliequivalents in 120 cc solution followed by a flush 17 that will be more than enough to clear the lines and more 18 likely to be the 60 cc syringe, the full amount. 19 Q Under the directive as you're conceiving it, will the 20 dose -- will the drugs themselves, the order of the drugs 21 and the doses be items that can be changed at any one 22 else's discretion besides yours? 23 A No. 24 Q What's the expectation as to the means of 25 administering the drugs into the inmate's body as you're
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1 expecting the directive to be? 2 A I expect that while the first choice would be the 3 femoral vein, would not limit it to that because there 4 could be circumstances where that might not be available or 5 appropriate, but that would be a preference. But there 6 would be discretion on the doctor. 7 Q Is that something that would require preapproval to 8 change the access from femoral access to some other access 9 if the doctor believed it appropriate? 10 A No, he could make that judgment on that execution. I 11 would have discussions and expect if this was going to be
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12 an ongoing change, that we should have that discussion, or 13 it became a priority rather than an option. 14 Q Is it your intent that this proposed directive will be 15 unalterable in the future? 16 A No. I couldn't, in any good judgment, set something 17 this important and cast something in stone. My mind would 18 always have to think there could -- things could happen. 19 Drugs could no longer be on the market. There could be new 20 information. Of course there could be court orders. There 21 could just be a myriad of things that could happen. But 22 probably in the next -- in the near future I wouldn't 23 expect any of those things to change. They would be the 24 same, because Missouri does have good experience. In 25 talking -- in my talking with the state witnesses, with my
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1 own employees that have been active in those, I believe the 2 process has worked and it's worked well. So I would 3 anticipate continuing with the process that I just 4 mentioned unless there was some reason that really was 5 necessary or a good reason to deviate or change. 6 Q And if there were a reason to change, who would decide 7 whether there was a good reason to make that change or not? 8 A Ultimately it would be me, and again I would not make 9 those kind of changes on just my own -- on my own without 10 consultation with more than one person. 11 Q What plans are expected to be made to ensure that once 12 this directive is prepared, to see that it's carried out? 13 A I plan to invoke an auditing process, change the 14 recordkeeping that we presently have, and have a quick
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15 auditing process the day following. Actually I guess it 16 would be the same day because the execution normally 17 happens shortly after midnight, but considering a normal 18 workday starts at 7:30 a.m. inside an institution, that we 19 would have an auditing process. For some time at least in 20 the future I would have that information sent directly to 21 me so that I could look over it and feel comfortable with 22 not only the execution that happened and the recordkeeping, 23 but also the process of auditing -- the auditing process, 24 and it will probably come through the director of Adult 25 Institutions to me also until I was confident with it that
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1 I could delegate that as it should be.

2 Q Are there any plans as to how you would expect to let

3 the persons that are involved in the execution process know

4 that this directive is coming out and what's imposed,

5 what's discretionary?

6 A Yes, it will be in writing, but we will have a meeting

7 face-to-face with my staff and medical staff, John Doe One.

8 Q And will it be emphasized what is discretionary and

9 what is nondiscretionary, what requires your preapproval to

10 change?

11 A Yes. As I set out, and John Doe One, he or she, the

12 doctor will need to agree to that, and I have every reason

13 to believe that they will.

14

MR. PRITCHETT: One moment, please, Judge.

15

Thank you, Mr. Crawford. That's all that I

16 have.

17 CROSS-EXAMINATION BY MR. HELLMAN:

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18 Q Good afternoon, Mr. Crawford. 19 A Good afternoon. 20 Q So it's correct that you have ultimate authority for 21 all aspects of the execution procedure in Missouri? 22 A Under the constitution and law, I believe so, yes. 23 Q You spoke about the review process when you came on 24 board as director of corrections. You said you met with 25 your executive staff to learn about the procedure. Did
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1 that staff include any doctors? 2 A No. 3 Q Did you consult any doctors in learning about the 4 medical aspects of the execution procedure? 5 A No. I don't have -- I mean, I actually have a doctor 6 on my executive staff, but I didn't -- I don't think I can 7 say that I consulted with him directly about the injection 8 process and the things that you are interested in. I did 9 consult with him about other parts of the execution 10 process. 11 Q Thank you. So then you didn't consult with John Doe 12 One as a doctor regarding the medical aspects of the 13 execution procedure? 14 A No, I did not. 15 Q In your deposition which took place on May 23rd, you 16 said you had no plans to review Missouri's execution 17 procedure unless new information came forward. Is the 18 directive that you've been talking about today the product 19 of new information? 20 A Yes, I think so.
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21 Q And what is that information specifically that's 22 motivated you to issue this directive, or plan to issue 23 this directive? 24 A Well, it's the continuing information that I have 25 learned about the packaging of the -- the change in the
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1 packaging in the material and some of those challenges. 2 The recordkeeping, and just the new information that has 3 actually become available through some of the court 4 proceedings and some of the discovery. I know you 5 mentioned May 26th, but I believe during those 6 interrogatories I told you I would look at -- I would 7 continue to look at this, I would process that information 8 and make an appropriate decision. And that's what I'm 9 continuing to do, since on May 26th I had very little time 10 to -- I had a short period of time to understand any of 11 these things, and I had not talked with John Doe One. 12 Q Have you talked to John Doe One since the deposition 13 that took place? 14 A Yes, I have. 15 Q And could you describe that conversation? 16 A He called me actually. This was I think after his 17 deposition, and probably wanted to reassure me that he had 18 a constitutional -- the Department's best interest in mind, 19 that he had always been focused on a humane execution, and 20 gave me information about I guess sort of his level, some 21 of his level of experience, which was great, in this 22 process, and that he was willing to continue to do the good 23 job he'd been doing and work with me as needed.
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24 Q Did you find him credible in this conversation? 25 A Yes. And I have spoken to him in other conversations
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1 and a lot of times they were more of a waiting and more of 2 a casual conversation, not about the medical side of this. 3 So I have sort of gotten to know him over a period of time 4 so I can judge him from that more than just this one 5 conversation. I have known him to be very bright, 6 professional, articulate, and quick, very quick. 7 Q You mentioned a directive in your testimony, and I 8 understand that the court has made a statement about that 9 so I'll be very brief in my questions regarding it. Have 10 you formally adopted this directive? 11 A No, I have not. 12 Q What day will the directive be adopted? 13 A I couldn't answer that question because I don't know 14 as of today, but it will be before we have an execution 15 set. 16 Q So then you wouldn't execute Mr. Taylor before issuing 17 this directive? 18 A Oh, no. 19 Q And why not? 20 A Because I want -- I want to assure that the process is 21 better and I want to assure that we know distinctly the 22 amount of drugs that are going to be administered and in 23 good order and have that recordkeeping process in place. 24 Q Do you think Missouri is ready to undertake executions 25 today not having this directive in place?
378
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1 A We couldn't undertake it today. I believe there is 2 always 30 days, we have 30 days' notice. In fact, my 3 schedule is normally checked by the Supreme Court. They 4 will check our schedule before they set the date, or give 5 us some tentative dates, so I don't know that that's 6 pertinent. I will say I have faith that we have done 7 constitutional and humane executions, the ones that I have 8 had experience with. 9 Q Let me try to ask my question a different way. If 10 there were a hypothetical prisoner for whom the 30-day 11 period had lapsed or passed such that he could be executed 12 today by law, do you believe Missouri would be ready to 13 conduct that execution today not having the directive in 14 place that you have talked about? 15 A If -- if you -- if we were going to do that today, and 16 I suppose you mean 12:01 midnight tonight, I would quickly 17 put together that protocol that I mentioned earlier, the 18 procedure and the protocol, would have a meeting with my 19 team, but we are getting hypotheticals here that we could 20 find everybody and get them there by midnight tonight and 21 there weren't going to be all the other barriers, legal 22 barriers to an execution. But, yes, I think with what we 23 have in place we could do the same good job, maybe even 24 better, because -- because I could put that together that 25 quickly. Now, I'd rather have more time to do something of
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1 this magnitude, and I think I will have that time. 2 Q I'll just try to make my point clear so I'm coming
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3 across. Let's assume that the directive wasn't able to be

4 put in place and the execution was going forward today,

5 would you -- do you believe Missouri would be ready to

6 handle an execution, go forward with that execution absent

7 the directive?

8 A We are charged under law to do the execution so if

9 you're telling me I was ordered to have an execution

10 tonight, I would proceed with the execution. Had I had

11 the proper safeguards in my mind and the ability to do a

12 constitutional -- fulfill my constitutional duty, yes, I

13 could do it tonight.

14 Q I don't mean to belabor the point --

15

THE COURT: But you are belaboring the point.

16 Move on to another question if you can't phrase that

17 question any better than you have. Okay?

18

MR. HELLMAN: Thank you, Your Honor.

19 Q (By Mr. Hellman) Do you reserve the right to change

20 this directive in the future after Mr. Taylor has been

21 executed?

22 A Not in the -- not in the near future. I just only

23 reserve the right to change it if need be, but I have no --

24 I -- no, I have no reason to just change it for the sake of

25 any reason other than out of some type of necessity or as I

380

1 mentioned before, new information, court orders. 2 Q Would this directive require anesthetic monitoring? 3 A No. 4 Q Would it provide for improved visibility of the inmate 5 during the execution?

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6 A I'm sorry? 7 Q Would it provide for improved visibility of the inmate 8 during the execution? 9 A Visibility to the inmate? 10 Q Visibility of the inmate by, say, the medical 11 personnel. 12 A It would have the same -- this directive would have 13 the same visibility that -- it would be the same as it has 14 been in the past. There's a large window there and I have 15 certainly had discussions with my staff about what they 16 see, and it's different than what I saw in one picture. 17 Q So it wouldn't allow for a full view of the IV tube? 18 A No. 19 Q Would it impose any timing safeguards to ensure that 20 the thiopental had taken full effect to achieve burst 21 suppression before other drugs are administered? 22 A The procedure as far as the syringes and the timing 23 that has been set forth successfully by the doctor, and 24 there is some timing issues that I believe are important in 25 this, would remain -- remain as they have been.
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1 Q Have you consulted with any medical personnel in 2 deciding to make or not make any of the modifications you 3 have just discussed and the other modifications you have 4 talked about in your testimony today? 5 A Did you say consulted with medical personnel? 6 Q Yes. 7 A No, I have not. With any new medical personnel? 8 Q With any medical personnel, new or old.
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9 A No, I -- no, I have not contacted anyone. I have

10 given -- I have done some reading. Of course, we have had

11 expert witnesses here yesterday and today that I have

12 listened to what they have to say. And I am firmly

13 convinced that while we use components of a medical

14 procedure, this is not a medical procedure. The execution

15 is not a medical procedure, and that would make -- makes it

16 quite difficult in consulting with medical doctors that are

17 charged with saving lives when we are ordered and under a

18 duty to take a life under the law. And that is a

19 difference.

20

And as director I have to -- I have to consider

21 that if this was a medical procedure that required somebody

22 to undergo anesthesia or to be rendered unconscious, in the

23 first place, we don't do those procedures inside our

24 correctional institution. We have contracts with hospitals

25 and medical folks that do those in medical settings. So

382

1 when I keep hearing the doctors, there's a very narrow -- a 2 very narrow group of people that have any expertise, I 3 believe, with a lethal injection and actually have 4 experience in doing that successfully. I haven't heard any 5 of those people actually in the courtroom here today or 6 yesterday that have had those -- that have actually 7 successfully carried out an execution under the law. 8 Q But would it be consistent with your understanding of 9 what Missouri's goals are to have a prisoner who woke up 10 when the second of those drugs was being administered I 11 take it?

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12 A If I had somebody to testify to that, that would 13 certainly -- I think that would be very legitimate 14 testimony. 15 Q Would it be consistent with Missouri's goals for 16 executions to use a procedure that posed a significant risk 17 of severe bleeding, say with femoral catheterization? 18 A Certainly not. That's why we use a medical -- a 19 medical doctor to do that, to make the insertion, which is 20 more -- I told you there are some components of a medical 21 procedure, and the insertion of a catheter would be a 22 component of a medical procedure. 23 Q But you're saying that the testimony you have heard 24 today and yesterday about, say, the risks of insufficient 25 anesthesia or the risks of significant bleeding aren't
383
1 relevant because the persons giving that testimony have not 2 conducted executions themselves? 3 A I don't believe I said that was not relevant. 4 Q In what way is it relevant then? 5 A As bleeding has to do with part of a humane 6 execution, I think that could be -- that is relevant. 7 And because we do use a drug that is used in a surgical 8 procedure, that -- some of those parts are relevant. I 9 said there are components of the medical procedure. When 10 you're talking about causing death, I think then there are 11 parts that are very different. Maybe I -- I'm sorry if I 12 didn't make my point very clear. 13 Q How does the detail in the directive you described 14 compare to the substance of the detail in the execution
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15 procedure, such as security? For example, you said that 16 you prescribed the dosages and the drugs and a guide on 17 femoral access. If that's the substance of the directive, 18 is that more or less detailed than the directives that 19 concern the security aspects of the execution procedure? 20 A In some cases, about the same I would say. We have 21 detailed security as to -- as to who has what job, as to as 22 far as weapons go, if we make -- we try to make a 23 comparison about what type of weapons our security will be 24 armed with as specified. That would be sort of like 25 specifying I guess which drug and what amount.
384

1

And I think, as I mentioned earlier, there will

2 be some flexibility need to be given and some discretion in

3 that execution room for things that might come up and --

4 and come up so quickly and need to be dealt with that a

5 decision would have to be made there without going through

6 me. And those are also in the protocols, of course, for

7 the security. So I think it's a fair comparison to say

8 that they would be very similar.

9 Q How many pages is the security aspects of the protocol

10 for an execution procedure?

11 A I don't know that I could guess the pages, but I can

12 probably give you a thickness.

13 Q How thick then?

14 A Okay. Three-quarter's, a half, three-quarter's of an

15 inch thick probably.

16 Q Is it fair to say that the directive you're talking

17 about today could fit on a single page?

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18 A I don't believe they'd fit on a single page. You 19 could, I guess, depending on how small you made the type. 20 I think they would be more than a page, but I don't think 21 they would be a hundred pages either. I hadn't really 22 considered that. 23 Q Thank you. How many -- you have already said that 24 five grams of thiopental have not been used in recent 25 executions in Missouri. What was the basis for your
385
1 statement that five grams had been used when you made that 2 statement previously in interrogatories? 3 A That was my belief, and I think there are multiple 4 components to how that happened. One, I think we based -5 this isn't the first case where those types of questions 6 have been asked, and I think one of the things was we 7 probably relied on the misunderstanding and mistake that 8 nothing had changed. We had gotten those figures from the 9 doc from an execution that may have happened late 2005 and 10 assumed that those drugs were still given, and actually it 11 may have been before that time. And then there was some 12 oversights, and I just am not happy with that, but it just 13 happened. 14 Q Did Doe One ever tell you personally that he'd been 15 giving five grams of thiopental, say, before the start of 16 this year? 17 A Not that I can recall. 18 Q Did Doe One ever tell you he was having trouble mixing 19 thiopental? 20 A No, he did not.
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21 Q Or that he was dyslexic and had difficulty with 22 numbers? 23 A No, he did not. 24 Q Did you and he ever discuss the relative advantages of 25 femoral access?
386

1 A My early understanding, and which I still understand,

2 but the early description of that was that it is a large

3 and a strong vein so it doesn't have some of the strength

4 issues that people have in a weakened health condition or

5 people that have abused their body in their lifetime, so

6 it's a strong, large vein. And it also provides quick

7 access to the heart so it will provide a quick and humane

8 execution, so that it's very preferable. Can be

9 preferable, anyway.

10 Q And Doe One is the source of your information that you

11 just described?

12 A Actually, I got most of that information from my staff

13 that talks directly with John Doe One and I do have staff

14 -- as director I mentioned we have 11,400 employees that

15 are responsible for around 100,000 convicted felons and

16 there's quite a bit of work that goes on in our daily

17 duties that fall outside the execution process, so I have

18 got most of this information through legal counsel, through

19 people that are directly working with the execution team

20 that have talked directly with that.

21

Most of my discussions with John Doe One have

22 been at the institution on the night of, and that's

23 something that we don't usually talk about, any issues that

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24 wouldn't just come up immediately. We talk about -- more 25 of a social time because, as you can imagine, it's not
387
1 something that we're -- it's something that we're charged 2 with doing, but it's not something that we're just focusing 3 on the details of I guess. 4 Q And just to sum up, you rely on your staff and your 5 staff rely on John Doe One for the discussion of the 6 relative merits of femoral access? 7 A Yes, I'd say that would be fair. 8 Q Are you going to continue -- excuse me, strike that. 9 Will you continue to allow John Doe One to take part in 10 Missouri's executions? 11 A Yes. 12 Q Have you had any conversation with that individual 13 about his continued employment with the state? 14 A No, I have not. I have not indicated that, but I have 15 not indicated otherwise. I did just talk to him the one 16 time that I mentioned. But that is my plan, if you ask, 17 that he will. 18 Q So you have confidence in Doe One's competence and 19 training to carry out executions? 20 A Yes, and I base that heavily on his success and the 21 demeanor and the efficiency and all the information I have 22 gathered from my staff and from state witnesses on the 23 executions that I have been involved with and those before 24 that he has been involved with, and he has been involved 25 with all those I'm talking about.
388
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1 Q You may recall yesterday we talked a little bit with

2 various witnesses about Doe One's statements that it would

3 be impossible for him to cause significant bleeding using

4 the femoral vein technique, and I also believe that he said

5 that anyone who had done the procedure more than ten times

6 would never have a complication.

7

I'd like to show you briefly --

8

THE COURT: Mr. Hellman, how much more time?

9

MR. HELLMAN: Ten minutes.

10

THE COURT: Five minutes.

11

MR. HELLMAN: If I can approach the witness then.

12

THE COURT: Yes.

13

MR. PRITCHETT: May I ask what you handed to the

14 witness.

15

MR. HELLMAN: I have handed the witness what is

16 labeled I believe Plaintiff's Exhibit 27. These are the

17 photos from the Collective Exhibit 18 which is the Timothy

18 Johnston execution that was discussed yesterday.

19 Q (By Mr. Hellman) Do you believe John Doe One is

20 correct when he says that it would be impossible for him to

21 cause significant bleeding through the femoral

22 catheterization technique?

23 A I -- I would have to qualify any of my answers on that

24 with my relationship and what I have seen in talking with

25 John Doe One, and I will say this, in talking to him more

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1 on a conversational level than on just a professional 2 level, but he has a tendency to communicate sometimes by

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3 overstatements, and I don't mean being untruthful in any

4 way, or not professional, but he has kind of a quick way of

5 overstating things to make a point. And so when I read

6 that in his deposition I thought, well, you know, that's

7 sort of like a story, if you were going to say how many

8 mushrooms you found or how many fish you caught or how big

9 your fish were, you might say, and he'd say something is

10 impossible.

11

THE COURT: What was the question?

12

MR. HELLMAN: The question was -- well, the court

13 reporter can read it back, but my understanding of the

14 question was John Doe One has said it's impossible for him

15 to cause bleeding, significant bleeding, through the

16 femoral vein technique. I asked if the witness had

17 confidence in John Doe One, given that statement and those

18 photos.

19 A My judgment would be that it would not be impossible,

20 that there's very few things that are impossible. So I

21 would take issue with it being impossible in my judgment,

22 not medical judgment.

23 Q (By Mr. Hellman) During an execution, you're not in

24 either the execution support room or the execution room

25 itself?

390

1 A I am not. 2 Q Under Missouri's procedures, does John Doe One have 3 the authority to deal with any unforeseen complication as 4 it arises without consulting you? 5 A Could you -- does he have any --

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6 Q Must John Doe One consult you before dealing with an 7 unforeseen complication that occurs during an execution? 8 A No. I think -- I think if it were unforeseen, that he
9 could -- would need to, in many cases, obviously respond to 10 that immediately. I don't believe he would ask me if he 11 needed to apply pressure to stop the bleeding, for 12 instance. That would be something that you'd respond to. 13 Similar to, I would guess, that he would -- he would have 14 similar to those kind of responsibilities assigned to him 15 in an operating room when he couldn't refer to the hospital 16 administrator or the consenting family member. 17 Q And if he were to consult with you on a medical 18 question, would you defer to him? 19 A I would give heavy weight -- I would give some weight 20 because of his expertise in the execution procedure. I 21 would certainly give some credibility. And he would have 22 a part in my decision-making process, but I certainly 23 don't -- wouldn't give him full credibility in that 24 decision-making by any means. 25 Q What are you basing your view that John Doe One had, I
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1 believe you used the word success, in carrying out 2 execution procedures? How would you know if he were not 3 successful? 4 A I would think that if we had a -- well, it could be a 5 myriad of reasons. One thing, we prepare the patient. My 6 staff tells me that they're cordial, the doctor is cordial, 7 that there is no pain. They are very responsive to
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8 discomfort. Staff and doctor are in communication with the

9 condemned. In fact, some of them, there are various

10 stages, we offer a sedative. Some of them don't accept

11 those. Some of them do. Some of them are joking and

12 talking and telling stories. Some of them are quiet. So,

13 I mean, I even got a letter on just one of the recent

14 executions from an inmate condemned that did not leave a

15 prepared last statement, but he thanked the superintendent

16 of the prison on how he was treated. So I believe that --

17 I believe that we are humanely and properly preparing them

18 for execution.

19

My staff tells me that after the first drug

20 is pushed, the sodium pentothal, that they can see --

21 sometimes I mentioned there is a sedative given. We have

22 even had to awake a condemned for the execution so that

23 they can see their family or whatever. And they tell me

24 that after they push the plunger it's just a very short

25 period of time that they can see their head drop and them

392

1 go to sleep, that they can just see them relax. And then a

2 very short period of time after that the doctor, using some

3 kind of electronic machine that flat lines, pronounces them

4 dead. So to me a quick, a humane execution is one where I

5 don't believe there is -- there is much pain, and then it's

6 carried -- it's not a lingering death.

7

And we have had no reports of excessive blood or

8 all these other scenarios that can be thrown out. Or

9 somebody sitting up I think was mentioned before. So I

10 think we're successful in doing that.

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11 Q Are you aware of the effect that pancuronium bromide

12 has on a prisoner, the paralysis effect?

13 A Yes, I am.

14 Q Does Missouri do any toxicology reports to ascertain

15 how much of the drug, the drugs, were delivered to the

16 body, after death?

17 A No, we don't.

18 Q Is the pancuronium necessary, in your mind, to

19 accomplish an efficient and humane death?

20

THE COURT: I don't think he has given any

21 testimony that he has any medical background, Mr. Hellman.

22

MR. HELLMAN: I ask more because it's his

23 ultimate decision to decide whether or not to include it.

24

THE COURT: You may answer.

25 A I think that all three drugs need to be used in

393

1 concert to constitutionally and humanely complete this

2 procedure. If we did not use pancuronium bromide we might

3 need to use something else or totally different drugs to

4 complete the procedure. I think any time you change or

5 take out one would make me revisit the whole process.

6

THE COURT: Your time is up, Mr. Hellman.

7

MR. HELLMAN: Thank you, Your Honor.

8 REDIRECT EXAMINATION BY MR. PRITCHETT:

9 Q Did you have the opportunity to listen to the

10 testimony of Dr. Dershwitz this morning?

11 A Yes, I did.

12 Q And did you listen to the testimony?

13 A Yes.

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Page 122 of 124

14 Q Is it your understanding from Dr. Dershwitz' testimony 15 that there is any need for the Department of Corrections to 16 make a change with regard to the visibility of the inmate 17 from the execution support room through the window into the 18 execution room? 19 A No, I did not hear anything. 20 Q Is it your understanding from the testimony of 21 Dr. Dershwitz that there is any need for the Department of 22 Corrections to slow down the process so that the sodium 23 pentothal could take effect? 24 A There was no evidence given. 25 Q Is it your understanding from the testimony of
394

1 Dr. Dershwitz this morning that there is any need for the

2 Department of Corrections to modify its current practice

3 with regard to having a view of the full length of the IV

4 tubing from the execution support room through the wall and

5 then into the inmate?

6 A Contrary. I believe he said it was reliable once it

7 was hooked up properly.

8 Q And finally, is it your understanding from the

9 testimony of Dr. Dershwitz this morning that there is any

10 need -- excuse me, that it's a -- is it your understanding

11 from his testimony that femoral access as a means to

12 administer these drugs is an appropriate practice?

13 A It -- yes, and in some cases preferable.

14

MR. PRITCHETT: Thank you.

15

MR. HELLMAN: Nothing further, Your Honor.

16

THE COURT: Thank you.

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Page 123 of 124

17

MR. PRITCHETT: That concludes the case of the

18 defense, Your Honor.

19

MS. ANDERS: That concludes our case as well.

20

THE COURT: Okay. Very good.

21

Well, I will take the matter under advisement and

22 issue an order within the time frame given me by the 8th

23 Circuit. I'm not requesting any findings of facts or

24 conclusions of law or any of that stuff. We have been over

25 this enough. I don't need that, okay?

395

1

MR. HELLMAN: Just to be clear then, Your Honor,

2 no post-trial brief is desired by the court?

3

THE COURT: No.

4

Thank you.

5

MR. PRITCHETT: Thank you, Judge.

6

7

* * * * * *

8

9

10

REPORTER'S CERTIFICATE

11

12

13

I, Donna M. Turner, Registered Merit Reporter,

14 hereby certify that I am a duly appointed, qualified, and

15 acting official court reporter for the Western District

16 of Missouri; that the foregoing pages contain a true and

17 correct transcript of the proceedings had in the

18 within-entitled cause on the dates stated herein, and that

19 said transcript is a true transcription of my shorthand

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Page 124 of 124

20 notes taken therein.

21

22

23

_____________________________RMR

Registered Merit Reporter

24

25 DATE: ___________

http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection%20Documents/Missouri... 6/16/2007

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

MICHAEL TAYLOR, Plaintiff,
vs. LARRY CRAWFORD, et al.,

) ) ) ) Case No. ) 05-4173-CV-S-FJG ) ) ) JUNE 5, 2006

TRANSCRIPT OF TESTIMONY OF JOHN DOE NO. 1

On Monday, June 5, 2006, the above-entitled cause came on before the Honorable Fernando J. Gaitan, Jr., U.S. District Judge, sitting in Kansas City, Missouri.

For the Plaintiff: For the Defendants:

APPEARANCES
MS. GINGER D. ANDERS Jenner & Block, LLP 601 13th Street NW Suite 1200 South Washington, DC 20005
MR. MICHAEL PRITCHETT Missouri Attorney General's Office P.O. Box 899 Jefferson City, MO 65102

Donna M. Turner RMR U.S. Court Reporter, Room 7552 Charles Evans Whittaker Courthouse
400 East Ninth Street Kansas City, MO 64106 (816) 512-5641

JOHN DOE NO. 1

Direct Examination by Ms. Anders

4

Cross-examination by Mr. Pritchett

96

Redirect Examination by Ms. Anders

104

Recross-examination by Mr. Pritchett

108

2

1

MONDAY, JUNE 5, 2006

2

THE COURT: I think one of the things we want to

3 do before we get started, Mr. Pritchett, I need for you to

4 state for the record that the individual who is present

5 today representing themselves to be John Doe No. 1 is in

6 fact that person who has been held out during the course of

7 this litigation to be John Doe No. 1.

8

MR. PRITCHETT: I will, Judge. The person here

9 today representing himself as John Doe 1 is the person we

10 have represented throughout this litigation as being John

11 Doe 1, the physician that is present during executions in

12 Missouri.

13

THE COURT: All right.

14

MS. ANDERS: I'd just like to note for the record

15 that I cannot see the doctor behind the screen and I cannot

16 tell whether he is consulting any documents, papers,

17 anything else, and I cannot observe his demeanor. And

18 plaintiff did not have any notice that that would be the

19 case.

20

THE COURT: I think it was implied, Ms. -- what

21 is your name?

22

MS. ANDERS: Anders, Ginger Anders.

23

THE COURT: Ms. Anders. It was implied in the

24 order. I'm sorry you didn't catch that implication.

25

And I'll say this, if the witness is referring to

3

1 documents, you may be free to ask him if he is referring to

2 documents and what documents they are. Okay?

3

MS. ANDERS: Thank you.

4

THE COURT: Rhonda, do you want to swear this

5 witness in and we'll get started.

6 JOHN DOE NO. 1, called as a witness on behalf of the

7 Plaintiff, being first duly sworn, testified:

8

MS. ANDERS: Before we start, has there been a

9 ruling on the protective order?

10

THE COURT: I'll rule on that at the end of this.

11

MS. ANDERS: Thank you. And I'd also like to

12 note for the record that plaintiff would respectfully

13 reiterate --

14

THE REPORTER: I can't hear you.

15

THE COURT: There is a microphone on the desk, or

16 you can step up to the podium to do your examination.

17

That isn't working? We have been having

18 microphone problems.

19

MS. ANDERS: So once more I will reiterate

20 plaintiff's objections to both the substantive and the

21 duration limitations on the deposition.

22

THE COURT: I guess if you reiterate, I

23 reiterate. How's that?

24

MS. ANDERS: Fair enough.

25 DIRECT EXAMINATION BY MS. ANDERS:

4
1 Q Doctor, my name is Ginger Anders and I represent 2 plaintiff Michael Taylor in this litigation and I'm here to 3 depose you today. So first I just wanted to establish a 4 few standard groundrules for the deposition. Have you ever 5 been deposed before? 6 A Many times. 7 Q So you're probably familiar with this. What types of 8 cases have you been deposed in?
9 A Criminal. 10 Q What types of criminal cases? 11 A As a medical examiner I was testifying in numerous 12 cases, death cases, murder cases. Federal cases. 13 Q Any other types of cases? 14 A Malpractice cases as an expert witness, plaintiff, 15 defendant -- not as plaintiff, but as a defendant on 16 malpractice as an expert witness many times. 17 Q Okay. So you will be familiar with these instructions 18 I'm sure. 19 A Yes. 20 Q But just to go over them once more, if you could speak 21 up for the court reporter, she can't see if you nod or 22 gesture or anything like that. Is that okay? 23 A That's fair. 24 Q And just tell me if you didn't understand a question. 25 If I may say something that isn't quite clear, please tell

5

1 me and I'll try to rephrase. Okay? Do you understand 2 that? 3 A Yes, I understand. 4 Q Okay, thanks. And please tell us if you need a 5 break. The only thing about that is I ask that if you to 6 need a break and a question is pending, that you answer the 7 question first and then we can take a break. 8 A Great. 9 Q And if you could also please answer my questions 10 before consulting with your attorney. You are certainly 11 allowed to consult with your attorney, but if there is a 12 question pending please wait until you have answered it 13 first. 14 A Great. 15 Q Okay. And I'd just like to say for the record that

16 I'm not here to try to discover your identity. I'm here to

17 ask you questions about the execution procedure and your

18 role in it, and most likely there will be a protective

19 order that covers parts or all of this deposition so it

20 won't be publicly available.

21

So if you could please list for me every document

22 that you have reviewed in preparation for this deposition.

23 A In preparation in the last 24 hours, or the last

24 thirty years?

25 Q For this deposition in particular.

6

1 A I met with Mr. Pritchett yesterday to discuss some of

2 the previous documents that we had and I reviewed them for

3 about an hour last night and that's all.

4 Q So you reviewed the documents in the possession of the

5 state and the Attorney General's Office?

6 A Yes.

7 Q Did you review any of plaintiff's filings in this

8 case?

9 A If they were with my documents, yes. But I do not

10 specifically remember any of those.

11 Q Okay. Thank you. I'd like to introduce a couple of

12 exhibits right now.

13

THE COURTROOM DEPUTY: Have they already been

14 marked?

15

MS. ANDERS: They have not been marked.

16

THE COURT: The court reporter will not be

17 handling the late marking of your exhibits. That's what

18 the courtroom deputy is here for.

19

MS. ANDERS: Okay.

20

THE COURTROOM DEPUTY: Is this No. 1?

21

MS. ANDERS: Yes, Exhibits 1, 2 and 3.

22

MR. PRITCHETT: Which order will they be in? The

23 first set, No. 1 --

24

MS. ANDERS: The first set will be Exhibit No.

25 1. The supplemental interrogatory answers will be Exhibit

7

1 No. 2. And the answers to the court's order, Document 148,

2 the court's interrogatories, that will be Exhibit No. 3.

3

THE COURT: Rhonda, why don't you take them to

4 the witness.

5

THE COURTROOM DEPUTY: All of them, or --

6

THE COURT: Yes.

7

THE COURTROOM DEPUTY: It will take me a minute

8 to mark all of these.

9

THE COURT: Well, they need to be marked if

10 they're going to be exhibits.

11

MS. ANDERS: Would you like a copy, Your Honor?

12

THE COURT: If you have an extra one, yes. If

13 you don't, don't worry about it.

14

MS. ANDERS: I do.

15

THE COURT: Thank you.

16

MR. PRITCHETT: Judge, if we get into questions

17 such as where did you graduate from school or what year or

18 specifically what -- when you received certain

19 certifications, pending your ruling I have asked the

20 witness to be generic in responses to those questions and

21 say to give a range of years or perhaps a general locality

22 as to what schools he may have attended.

23

THE COURT: I'll address those when we come to

24 them. Okay.

25

MS. ANDERS: Okay.

8
1 Q (By Ms. Anders) So, Doctor, you have just been 2 handed three documents. Have you seen these before? 3 A Yes. 4 Q And are these your answers to plaintiff's and the 5 court's interrogatories? 6 A Yes. 7 Q Did you prepare these answers? 8 A With Mr. Pritchett, yes. 9 Q Did you review them before they were submitted? 10 A I think I did. 11 Q Okay. I'm going to be asking you some questions about 12 some of your answers and I also probably will assume your 13 familiarity with some of the answers, so if I ask you about 14 a particular answer and you don't immediately remember it, 15 please just let me know and I can point you to the relevant 16 answer so you can refresh your recollection.
17 A Okay. 18 Q So I'd like you to take me step-by-step through the 19 process by which you mix thiopental solution for an 20 execution. 21 A Okay. What, where --
22 Q Just start at the beginning, assuming, since I have no 23 medical background I need a pretty basic explanation. 24 A Last year, ten years ago, thirty years ago? 25 Q The general process you have used for recent

9

1 executions and just how you'd instruct somebody if they

2 were going to do an execution in the near future.

3 A Oh, well, we were discussing this because pentothal

4 currently comes in a container that allows only the

5 container to be inserted into itself and mixed with a

6 specific volume. In order to demonstrate this to the court

7 we tried to locate the specific container. There is not a

8 single hospital, surgery center, or ambulance literally in

9 the state that still carries pentothal.

10

So what we were using is a formulary dose that

11 was provided by the drug company to allow the hospital to

12 bill individually to patients rather than using the large

13 multi-dose vial. It's not designed to be removed from its 14 container. So currently I have devised a method to mix the 15 pentothal with an improvised technique that allows me to 16 insert sufficient pentothal into one syringe so that a 17 nonmedical person can inject it in the dark. 18 Q And could you take me step-by-step through that, your 19 improvised process? 20 A I'd have to see the containers because I cannot at the 21 present time remember whether they have glass or -- they 22 are actually just two straight-walled glass bottles. One 23 has powder in the bottom, one has liquid in the bottom, and 24 they are designed to lock together and mix. So I have to 25 stick a needle through this plastic and inject my own

10

1 diluents which I know will give me no more than 50 cc's for

2 the final product, which is what I'm aiming for for the

3 final injection.

4

We have encountered problems trying to mix more

5 than three or four grams using this method, mainly because

6 of an inert substance possibly put in by the manufacturer

7 to prevent mis-mixing, which I know several drug companies

8 will do. So right now the last time I saw and talked to

9 the Director on each of these occasions saying we either

10 need to change what we say we're dosing or we will have to

11 go back to the original five-gram bottle that was available

12 when we instituted this procedure. So right now we're

13 still improvising. And he's also having me researching an

14 alternate drug if it comes to that.

15

Pentothal was chosen originally by the engineer

16 that designed the machine because it is a long-standing

17 drug. Every physician was familiar with it. It was

18 available all over the United States and it was not going 19 to be recalled off the market for any reason so it was 20 going to be available for a long time. All the drugs were 21 chosen on that criteria rather than some exotic -- and 22 again, it was done by an engineer, not by medical 23 personnel. We simply went along with its choices because 24 it made sense. 25 Q Okay. So let me step back for one moment, because I

11

1 don't have very much background in this. In previous

2 executions when you are preparing a dose of five grams of

3 thiopental, how did you accomplish that? How did you mix

4 it?

5 A The thiopentothal five-gram bottle is about the size

6 of a Coke bottle and it was designed for the

7 anesthesiologist to arrive at work in the morning, fill

8 this Coke bottle with five grams of pentothal and use 200

9 to 500 milligrams per patient for every anesthetic that she

10 gave that day. At the end of the day she could put it in

11 the refrigerator with her name and label and use it the

12 next day.

13

The hospital didn't like this because it allowed

14 for poor control. Left the drug out and so the hospitals

15 have gone to this 500-milligram unit dose bottle so they

16 can bill patients individually. And so they sign out a

17 specific drug to a specific patient and there's no extra

18 left over. And that's basically what -- the economics of

19 the medical use.

20 Q I'm sorry, I'm having a little bit of trouble

21 following. So did -- have you given five grams of

22 thiopental, prepared five grams for an execution since the

23 vial size was reduced to 500 milligrams?

24 A No. And we only used five grams because that's the

25 size of the bottle. Because the DEA requires a separate

12

1 disposal log of any drug not used and we would have to

2 create disposal records of drugs we didn't use, so we

3 simply use the five grams because that's how it was

4 supplied.

5 Q I see.

6 A If it had been a four-gram bottle we would have been

7 using four grams. The original protocol called for one

8 gram, and from my experience doing surgery inside prison

9 facilities, I was quite aware that one gram in chronic drug

10 addicts was an insufficient dose to ensure that they would

11 be sedated. So -- but a two-gram dose would cover 99

12 percent of all drug addicts and inmates. So we arrived --

13 initially with the injection machine I specified that it

14 had to be changed to two grams because the one gram could

15 be insufficient in some cases.

16 Q Okay. Thank you. I'm just going to introduce another

17 exhibit now.

18

Have you seen this before, Doctor, this document?

19 A This is a page taken from the log that was kept by the

20 prison.

21 Q Is this -- this reports the chemicals that are used

22 and disposed and their amounts in each execution; is that

23 correct?

24 A It's, I would have to say, an approximation, yes.

25 It's the -- the only thing that is significant on this as

13
1 far as I'm concerned is the amount of pentothal that is 2 used or disposed of. Potassium and pancuronium are not a 3 controlled substance. The DEA does not care what we do 4 with it, but they do want to see if we have a record of 5 pentothal used and pentothal disposed, and that's all it's 6 for. 7 Q I see. Thank you. If you could turn -- this has two 8 pages on it, right? 9 A Yes. 10 Q If you could turn to what is the back page, the lower 11 page, and if you would just look with me at the entry 12 that's dated 3/16. It says Stanley Hall on it. 13 A Yes. 14 Q And there does it say -- how much does it record under 15 the amount column for sodium pentothal? 16 A It says five grams. 17 Q And under the vial column? 18 A It says ten. 19 Q So I guess I'm still having trouble following. So 20 five grams were given to Stanley Hall; is that correct? 21 A It shows to be that five grams were taken out of the 22 cabinet. Whether we were able to give him the full five
23 grams or not, this record is not supposed to show that. 24 This is more of an inventory for the prison to keep track 25 of drugs.

14
1 Q I see. So you're saying that the five grams may have 2 been checked out -3 A It was checked out, and I noticed when I finally saw 4 these records is that sometimes it would show different 5 amounts because after we tried to deal with it, I'm sure 6 what happened on this instance is we took ten bottles, we 7 opened them. I was unable to mix this. We show that we 8 gave the five grams because we have no provision for 9 showing that we disposed of three and gave two, or disposed 10 of two and gave three, because this has not been set up 11 that way. We either show we used it all or disposed of it 12 all. 13 Q I see. So even though there is no indication on this 14 form that any particular amount of pentothal was disposed 15 of, you're saying that you may have actually used less than 16 five grams in that -17 A Yes, we may have injected less. We are still way over 18 the amount required to accomplish what our objectives are. 19 Q Do you remember how much you may have given during the 20 Stanley Hall execution? 21 A I don't remember specifically that, no. 22 Q Do you have any -- can you speculate as to how much, 23 based on your experience in these executions? 24 A Well, I need to back up a little bit. When I was 25 involved in the initial executions when the death penalty

15

1 was instituted, we were still looking at cyanide and when 2 the lethal injection came along, since I was a personal 3 friend of the warden's, I was -- I advised him that the 4 doses, the rate of administration was too slow with using 5 the injection machine. Therefore, we quickly converted to 6 hand injection like they've always used in Texas simply 7 because the machine cannot account for differences in flow, 8 differences in IVs, rates of administration. All of the 9 problems with lethal injection have nothing to do with the

10 drugs. They have to do with the quality of the IV, its

11 location and how fast the drugs are given. If you have a

12 poor IV, you're going to get a poor result. All of the bad

13 results are from poor IVs, not wrong doses of drugs.

14

When given two grams, 20 milligrams or so of

15 pancuronium and 100 milliequivalents of potassium, 100

16 percent of people will die from those injections.

17 Q Okay. And just for the sake of completeness, could

18 you look at the entry under the one we were just talking

19 about, which is 4/26. It says Donald Jones. Do you see

20 that one?

21 A Yes.

22 Q And that also says that five grams were checked out of

23 sodium pentothal?

24 A Yes.

25 Q And then the vials column, could you describe what you

16
1 see there? 2 A I see a 10 and I notice now it's marked out. I would 3 never have seen this once the execution was completed, but 4 I know now that someone initialed and wrote in that eight 5 had been used because apparently they checked the inventory 6 and based on their inventory, so we may have taken ten out 7 and put two back is the only thing I can speculate on that. 8 Q And do you remember how much sodium pentothal you 9 actually prepared for that execution? 10 A It could not have been over four grams, but whoever 11 wrote that in the log, and I can assure you that is not my 12 writing, said that I gave five grams. But again, I don't 13 know who wrote that in this log. 14 Q I see. Thank you. And then on the first page of this 15 log, I guess the top page, for 5/17/05, Vernon Brown, would 16 your testimony be the same, that five grams was checked out 17 but that's not necessarily how much -18 A It shows five -- ten vials were checked out and ten 19 vials confirmed at inventory, so for some reason the ten 20 vials were either used or disposed of in this case. 21 Q I see. But do you remember whether you injected five 22 grams or not, or prepared five grams? 23 A Specifically in this instance, no, I do not remember. 24 Q But based on your previous testimony, do you think it 25 would have been less than five grams?

17
1 A It could have been less than five grams. My objective 2 though is still trying to -- again, the amount is not 3 nearly so important as the speed, route, concentration, 4 body weight, body fat. There are many, many other 5 factors. Pre-medication. All of these have much -- as 6 much or more effect as this total dose does. 7 Q I see. Thank you. So then if you could just take me 8 down to the next entry. I guess it's the entry after the 9 next one. 5/30 or 6/30. 10 A Yes. 11 Q So if you could just explain to me here. It looks to 12 me it says five grams under the amount and then under vials 13 it says six. 14 A That shows six, yes. 15 Q So that means that six vials were taken out? 16 A Six vials were confirmed at inventory. 17 Q And what dose is six vials? 18 A Under this system -- again, we have had several 19 different drugs. We have had different doses of 20 pancuronium. We definitely have had different 21 concentrations of potassium. So I don't know at what 22 point -- I'm dealing with what I see at the time and what 23 I'm required to mix to get this to work. So whether that 24 was a different manufacturer or whether we still had the 25 500 milligram -- it's my best recollection we had a similar

18
1 type of 500 milligram vial to work with at that time.
2 Q I see. And that's a pretty standard vial size; is 3 that correct? 4 A Until we get a different size, yes. 5 Q Okay. 6 A Right now nobody is using it, so I don't know if we're 7 going to have this available, but we are going to make 8 attempts to get that or some other size that we can work 9 with. 10 Q Okay. So if you could just -- if we could just go 11 back to the Gray execution which we have been talking about 12 in this case as an execution in which you prepared five 13 grams of thiopental. 14 A Which date was that? 15 Q That was on 10/26/05. That's the second to the last 16 entry in the chemical log. I was just going to ask you a 17 few questions about it. 18 A Yes. 19 Q Are you aware that your counsel represented to this 20 court on May 17th that five grams of thiopental had been 21 prepared and given for each execution, including Mr. 22 Gray's? 23 A He may have. 24 Q Assuming that he made that representation, was that 25 accurate?

19

1 A By seeing this log, it probably was not accurate.

2 Q Do you have any idea why he may have made that

3 representation at the time?

4 A I can give you a very good reason.

5 Q What is that?

6 A Well, when I was requested to come back and get

7 involved with the execution process, my main objective was

8 and I was charged by the Director, they had had a very

9 difficult execution in which the inmate took approximately

10 25, 30 minutes to expire which caused a flurry in the press

11 and embarrassment to the prison. And my job as a surgeon

12 was to ensure that they had an adequate IV.

13

Secondarily, I was also involved in adjusting the

14 doses and keeping -- making sure that these personnel were

15 able to give the doses rapidly in the dark by nonmedical

16 personnel. So my objectives were to keep the syringes

17 consistent, the labeling consistent, and the timing

18 consistent, which is very, very important.

19

And in that process I was more concentrating on

20 how and why the drugs work, because we really had nothing

21 to go by. If you go back in the history of executions, the

22 hangman had to refer to a chart for size of rope, length of

23 drop, weight of inmate to determine whether a hanging was

24 accomplished. So since there was no other source, and I

25 was the only physician involved in any executions, I think

20

1 it fell to me to determine if we were doing an adequate

2 job.

3

So under this protocol that I devised for

4 nonmedical people to do the injecting, we would inject

5 the first syringe of pentothal and the inmate would be

6 unconscious in 15 seconds with no cardiovascular

7 depression.

8

He would then give the pancuronium, which

9 requires the heart to still be beating and it has to

10 circulate for at least one minute, which is the time a

11 nonmedical person has to change syringes. As this

12 circulates, it paralyzes all voluntary muscles. If you

13 give it too quick or your timing is off, you're not going

14 to get the right effect.

15

Then the two vials, the two ampules of -- or two

16 syringes of potassium chloride were sufficient for a person

17 under 300 pounds to stop cardiac activity. Otherwise, you

18 have to wait 15 minutes for cardiac activity. But the

19 person will be paralyzed in 15 seconds as the dose goes in

20 and the effective heart beat will stop within 15 seconds.

21 We wait another minute or two so all electrical activity is

22 stopped so no one will question.

23

So my concern is to follow that type of schedule,

24 so I am -- and I'm quite aware in other jurisdictions that

25 they would -- they can't get the five gram and they have

21

1 also used two grams, and I knew and was figuring at that

2 point in time that a five-gram dose might be criticized as

3 being excessive. I knew it wasn't, but again this being

4 reviewed by nonmedical personnel who would look for any

5 reason to criticize. So I was totally comfortable with --

6 especially when we're dealing with this difficult drug, to

7 say -- and by 10/26 I said get out five, I'll give 2.5, and

8 again observed that within 15 seconds the patient was --

9 the inmate was unconscious, and there was absolutely no

10 change in the timing.

11

My main objection is, my obligation to the

12 director is, he is able to go out and does not have to

13 explain to the press why did this happen, why didn't this

14 happen. As long as protocol is followed, death has

15 occurred within two to three minutes 100 percent of the

16 time and the witnesses are totally unaware even when and

17 how the injections are given. There is no reaction.

18 There's no grimacing. There's no writhing. There's no

19 pain. There's no feeling whatsoever. It is a very calm

20 procedure. And that's what I'm trying to maintain. 21 Q Okay. Let me just unpack a few things in that 22 answer. Let me just go back for my benefit. So I think 23 you testified that the DOC requested that you come back 24 after a particular execution; is that correct? 25 A Yes.

22
1 Q And what was the reason for that? 2 A The inmate was a drug addict and they could not get an 3 IV line in. They finally put the needle in his thumb, and 4 you cannot give these drugs through the thumb and get the 5 result you expect, so it was a prolonged execution which 6 caused a lot of embarrassment and it should not have 7 happened. 8 Q Do you remember which execution that was? 9 A I do not. I was not there. 10 Q About what year was that? 11 A At least ten years ago, possibly. 12 Q And I think you also stated that you devised the 13 current procedure as it has to do in the past ten years or 14 so since your participation? 15 A Again, I was the only physician available anywhere to 16 ask about how and what. No one has any experience with
17 this drug and currently no one has experience with these 18 drugs anymore simply because other drugs are currently 19 being used, so I have to be the authority, I guess. Now I 20 am advising other states on what to modify if they have 21 problems. 22 Q I see. So you came up with the current procedure? 23 A Yes, I did. 24 Q Did you consult anybody in the course of doing that? 25 A I just said no one else knows anything about this.

23

1 Q Okay. Thank you. And so when you devised the

2 procedure, I think you said that your goal was to have

3 death occur quickly and very --

4 A Painlessly. With no apparent suffering that the

5 public can observe, which they will make the most of.

6 Q I see. Thank you.

7

So I think you also said that it has been a

8 relatively -- strike that. I'm sorry. I think you

9 testified that since the vial size of thiopental has

10 changed to 500 milligrams it has been consistent that you

11 haven't mixed five grams and haven't -- and five grams

12 hasn't been injected; is that correct?

13 A The total dose to me was insignificant. My focus was

14 on the objective of making it -- and if you look at the

15 times of injection and time of -- the amount -- the timing

16 of the injections and the time that death occurred, there

17 is no visible difference in any of these. You cannot tell

18 from the dose given.

19 Q I see.

20 A There's no way to tell.

21 Q Sure. Could you look, please, at your answers to the

22 first set of interrogatories. It's on page 24. This is

23 Interrogatory No. 63.

24 A Page 24.

25 Q Your answer there is at the bottom of the page. And

24
1 could you just read that answer for me. 2 A "John Doe 1 states that this entry means that 2.5 3 grams of sodium pentothal was prepared and administered at 4 this execution. John Doe 1 adds that he/she did not 5 initially recall having prepared a smaller dose of sodium 6 pentothal than usual at this execution. John Doe 1 states 7 upon further thought and review of the drug log that he/she 8 recalls that he/she prepared a smaller dose because it 9 comes to his/her attention that other jurisdictions 10 considered a dose of sodium pentothal as large as five 11 grams to be larger than necessary and John Doe 1, based on 12 his/her medical judgment concluded 2.5 grams of sodium 13 pentothal was more than adequate." 14 Q So you stated here that you initially did not recall 15 that you prepared a smaller dose; is that correct? 16 A Yes. 17 Q Was that accurate at the time that this was written? 18 A Yes. 19 Q Okay. Do you have any idea why you might not have 20 recalled initially that you prepared a smaller dose, given 21 that it was relatively consistent that you prepared a 22 smaller dose than five grams? 23 A I can save you a whole lot of time and offer my 24 apologies to the court, but last night I was trying to pay 25 my cable bill and I had two hours. I realized I had copied

25

1 my account number by dropping one digit and transposing

2 two. In surgery, that's not important. But I am dyslexic

3 and so I can recall in the operating room specific facts

4 and details of operation and function perfectly, but in

5 terms of copying one line to another or trying to simply

6 copy a phone number or account number I will sometimes

7 transpose numbers even when I'm staring at the two

8 numbers. So it's not unusual for me to make mistakes.

9

But in the operating room where I have no notes,

10 no letters, just my mental files which are extensive, this

11 -- and I am capable of doing 20 to 25 operations a day when

12 I go on these medical missions, without any errors. But I

13 am dyslexic and that is the reason why there are

14 inconsistencies in my testimony. That's why there are

15 inconsistencies in what I call drugs. I can make these

16 mistakes, but it's not medically crucial in the type of

17 work I do as a surgeon.

18 Q Okay. Thank you. I'm just trying to get it all

19 straight for --

20 A Well, I may contradict myself again.

21 Q I understand. We all do sometimes. So looking at

22 this answer again, it states that you prepared only 2.5

23 grams because it had come to your attention that other

24 jurisdictions considered a dose of sodium pentothal as

25 large as five grams to be larger than necessary and based

26
1 on your medical judgment you concluded that 2.5 grams was 2 more than adequate. Is that correct? 3 A All other jurisdictions use two grams, period. 4 Q And what is the source on which you base that? 5 A Direct communication with states involved in 6 executions. 7 Q Have you communicated with California? 8 A Yes. 9 Q I think California uses five, or used, but I could be 10 wrong on that. 11 A No. I just talked to them a month ago when they had 12 this fiasco. 13 Q If I could just ask what you meant by necessary in 14 this answer, when you said larger than necessary. 15 A It's adequate, but excessive dose has no bad effects. 16 I mean, I could possibly give as much as ten grams, that 17 would really be over-kill but it would not really -- the 18 drug was chosen because it doesn't cause cardiac vascular 19 depression so it means you can give a lot of it and your 20 heart will still beat fine. So that's why this drug was 21 given because the muscle relaxant requires heart beat and 22 blood pressure to be effective. If you gave a drug that 23 had a chance of stopping the heart beating, of course you 24 expect that at an execution, but then you could not give 25 the muscle relaxant and the other drugs because they

27

1 require a heart beat to circulate and be effective.

2 Q When you said 2.5 grams was adequate, you mean

3 adequate to cause unconsciousness?

4 A One gram will cause 90 percent of the population to be

5 unconscious. The extra gram is for that small percentage

6 of drug addicts that had excessive drug use, they produce

7 enzymes in the liver that allows them to metabolize

8 pentothal at a much more rapid rate.

9

The problem with all of these drugs is if you

10 give the dose and you do not get the effect you need, you

11 cannot simply add more drug to get the dose. You must

12 repeat the entire dose. So if you had chosen a two-gram

13 dose just theoretically, and you gave it and a person did

14 not become unconscious, rather than giving another 500

15 milligrams, most likely you would have to give another full

16 two-gram dose. So we have -- I had to adjust the doses to

17 guarantee that we would not have to redose anybody. So

18 that's as much a reason why these numbers were chosen.

19 Q I see. I'm sorry. And if you gave two grams

20 initially why would you then have to give another full two

21 grams after that?

22 A That's the way all drugs work. You can't simply add

23 more to it to get what you want. You must repeat the

24 entire dose because the body -- as far as the body is

25 concerned, that drug is completely gone. If that person,

28
1 you gave him two grams and he's awake, there is no 2 pentothal circulating in his body, so you must give another 3 full two grams or more if you want an effect. You can't 4 simply add to the dose you have given. It doesn't 5 accumulate. 6 Q I see. And then do you recall that in interrogatory 7 answer submitted on May 25th, these were in response to the 8 court's interrogatories, you stated that you had prepared 9 only 2.5 grams because you had difficulty dissolving more 10 than 2.5 grams? 11 A Upon seeing the drug log and inventory, yeah, then I 12 did remember. But I have a lot of other things I'm 13 involved with and busy with and doing out of the country 14 long periods of time. So, yes. And one of the problems 15 with being dyslexic is you have to be confident in what 16 you're doing at the time, so I was fairly confident that I 17 had mixed five grams. Then when I saw the drug log and the 18 inventory, obviously that is when I made the change. But 19 at that point in time I could remember the details of what 20 was involved in that and how I had to try to mix it. But 21 for the most part I would have answered five grams had I 22 not seen the log and the inventory and realized they were 23 inventory of what was left. 24 Q Okay. Thank you. So just going back to the Gray 25 execution once again. So you encountered a problem during

29
1 the mixing process. 2 A As soon as they went to the ten vials, yes. I go to 3 the execution chamber and we're on a time frame. I have 4 minutes to get the drugs ready, minutes to ensure a perfect 5 IV. There's no time to call the drug company at midnight, 6 the Director or nursing staff to change. I am required to 7 deal with what I am given and make it come out right and 8 make this -- make it happen I guess is best way to say it. 9 And since, when I analyzed what I was dealing with, I had 10 more than enough to make everything happen according to 11 what they were expecting to happen so there was no reason 12 to break protocol or call a delay or call the Director or 13 something because he was counting on me to keep my end -14 do my part and there was nothing in there that I saw that I 15 couldn't do it. I was able to modify what I was given and 16 he was totally unaware that there was any change in dosage, 17 because the timing was exactly the same. And he's almost 18 to the point of counting on this predictability and the 19 reliability of our method. 20 Q So how much pentothal did you set out to mix for the 21 Gray execution? 22 A Independently I don't remember. All I have is this 23 log of the person that says it came back in inventory. And 24 again, to me, that was not as important as the fact that I 25 had enough to effect a loss of consciousness in 15 seconds,

30
1 and in fact I do remember when we used only the 2.5 -- and 2 that is my handwriting that shows five vials and 2.5 -- the 3 inmate was unconscious in 15 seconds and we didn't change 4 the order of rotation, size of the syringes or the guards 5 that are actually doing the injections. 6 Q And do you remember about how long you had to mix the 7 drugs? 8 A We have about a ten-minute window to make a decision. 9 Q Was that the case with the Gray execution as well? 10 A It's always. 11 Q Okay. 12 A We arrive approximately an hour before. We have to 13 prepare the central line tray, get all these drugs from 14 their different locked sources, get all the tubing
15 arranged, the EKG monitoring, the IV tubing, mix all the 16 different solutions and flushes, so while we're not rushed 17 or stressed we definitely don't waste any time. Because we 18 arrive, we have experience, everybody knows what to do. 19 They get the job done. And for that reason I am the one 20 that always mixes the pentothal because it's very difficult 21 for someone who is not used to this to accomplish it. 22 Q Sure. So you took about ten minutes during the Gray 23 execution. At the end of that ten minutes were the 2.5 24 grams fully dissolved? 25 A Yes.

31
1 Q And on what do you base that? 2 A I would not have proceeded had it not. I would have 3 modified, added more solution, transfer it to another 4 container, do whatever was required. Had I had to switch 5 to two syringes, then there would be a problem with the 6 timing. Then I would have notified someone and said, hey, 7 we're going to have a problem, it's going to take twice as 8 long to inject the first drug. I made the decision that I 9 could have sufficient in the same syringe, the timing of 10 the execution would be exactly the same, and for the people 11 doing the injecting, I didn't have to change their 12 understanding of what they had to do, that they had to do 13 this one -- the people who do the injections are nonmedical 14 and they're in the dark so they have a small flashlight 15 that they're able to quickly identify the syringes, make 16 the appropriate connections and injections, disconnect, 17 clamp the tube, and changing the number of syringes or the 18 order of syringes was an unnecessary risk. 19 Q I see. So did you consider using two syringes? 20 A No, because I was able to get 2.5 in one syringe. 21 Q So you didn't consider it an option to fill two 22 syringes each with -23 A I could have done whatever was needed, but had I 24 changed to two syringes, then I would notify somebody that 25 this is going to be different. There was going to be a

32
1 delay, because we have to add an extra syringe to the 2 process. Since I was able to get 2.5 -- and I knew two 3 grams was more than adequate. Actually had I gone down to 4 one gram I would have notified somebody. But as long as I 5 was within the 2 to 2.5 range and I could get it all in one 6 syringe, they didn't want to be bothered, because as far as 7 they were concerned this was going to go as smoothly as it 8 always had. 9 Q So you didn't want to add another syringe because it 10 would increase the amount of time to do all the injections? 11 A It would confuse the nonmedical people giving the 12 injections. These are nonmedical people. They're either 13 guards, wardens, whatever, whoever they designate to do the 14 injecting. That's the first time probably in their life 15 they have picked up a syringe, and it's a Luralock twist 16 connector and then they have a separate clamp where they 17 have to clamp and unclamp the tubing, so it's a little 18 stressful for them to be doing this and still have to do 19 these manipulations. I mean, I can do it in my sleep, but 20 for them it's a job. So I had to keep it -- my objective 21 there was keeping it consistent so nonmedical personnel 22 could understand what they were doing and it wasn't any 23 different than they had seen it done before or they had 24 done it before. That was my priority. 25 Q I see. And so for the Gray execution, how many cc's

33
1 of thiopental solution did you end up with? 2 A I think I wound up with 40 cc's, from memory, 40 cc's 3 of 2.5 grams. Again, speed and route is as equally 4 important as a lot of other things. So if you have 2.5 and 5 you can get it in 40 cc's -- again, there's no way to know 6 what the final result is going to be, so I had 2.5 in 40. 7 It made no sense to add another 10 cc's of nothing when I 8 had it all dissolved in a 40 cc syringe, which basically 9 again is one dose, and save time on injecting. 10 Q It's my understanding that the syringe holds 11 60 cc's; is that correct? 12 A Actually it holds 70, but some are marked 50, some are 13 marked 60, so therein lies the confusion of whether we use 14 a 50 or 60 or 70 cc syringe. I could put 70 cc's in all of 15 these syringes, but the markings go either to 50 or 60. 16 Q I see. And you didn't consider dissolving more 17 thiopental and additional -18 A No, because we had more than enough. And by this time 19 I was more than -- after several other experiences and also 20 dealing with other states and communicating with them, and 21 also realizing their responding outside pressures, I was 22 entirely comfortable that anything over two grams was more 23 than enough for any execution, provided that the inmate did 24 not weigh over 300 pounds. 25 Q Sure. And just so that I'm clear, is there also a

34
1 flush solution with Heparin in each syringe? 2 A I do that simply because it guarantees that there will 3 be one minute between the injection, so part of that has to 4 do with getting a rhythm for the individuals giving the 5 injections and it allows the other one to flush and 6 circulate sufficiency to have an effect. 7 Q I'm sorry. I am having trouble following. You say it 8 guarantees one minute between injections. What do you 9 mean? 10 A It takes a minute to clamp, unclamp, grab another 11 syringe, reclamp, unclamp and start injecting. So, yeah, 12 then they inject a flush and then after they flush they 13 clamp, unclamp, unhook the syringe, then grab another 14 syringe of the next drug and then start injecting that, so 15 you can't -- if you rush, you can do it in two and a half 16 minutes. If you take it slowly, you can do it in about 17 three minutes. So there's so many physical clampings and 18 unclampings that it takes a set amount of time to do the 19 injection. I take that into consideration when I prepare 20 the solution. 21 Q So you're aiming for about one minute -22 A They can inject a syringe in 30 seconds and it takes 23 them 30 seconds to reconnect another syringe after they've 24 flushed. 25 Q I see. And I'm still having trouble following. I'm

35
1 sorry. I think there are six syringes total? 2 A Just an approximation. 3 Q Okay. So if there's six syringes total, I'm sorry, so 4 is it about two syringes per minute, is that right, to get 5 it done in three minutes? 6 A The guards understand this. They just simply pick up 7 the next syringe and give either half or the entire amount, 8 and it takes about three minutes because the time of death, 9 as you see from the logs, occurs at three to five minutes 10 that we announce and that's the time when electrical 11 activity is completely ceased so we have stopped injecting 12 for at least two minutes at that time. 13 Q I see. And which syringes do they give half of? 14 A One of the flush. 15 Q Is there just one flush syringe? 16 A Two flush. 17 Q Okay. Thank you. 18 A They are colored differently. We added a coloring 19 agent so they are easy to identify in the dark. We use a 20 methylene blue solution so they are a bright blue color 21 even in the darkened room where we're working so they can 22 easily identify them. Even though they're labeled, they 23 are also a different color so they know which syringe 24 they're injecting even if they can't see the labels. 25 Q I see. And there isn't any methylene blue in the

36
1 nonflush syringes? 2 A All the flush is blue so they can immediately identify 3 them in the dark. 4 Q And the methylene blue goes in the flush solution with 5 Heparin; is that right? 6 A Yes. The Heparin is probably redundant simply because 7 the newer catheters we receive are Heparinized catheters 8 and probably wouldn't clot for a twelve-hour period if we 9 absolutely gave nothing through them. So it's just an 10 extra safety factor. We don't want anything to go wrong, 11 so I have prepared for every possible failure in the way I 12 mix the drugs. 13 Q Sure. And when you put the -- some of the flush 14 solution with Heparin into the syringes that also has some 15 of the chemical in them, does the flush solution at that 16 point already have some of the methylene fluid in it, or do 17 you add it later? 18 A No, the flush solution only goes in after we have 19 mixed the other ones so there's no cross-over. 20 Q I'm sorry. 21 A Only the flush solution is blue. All the other 22 drugs -- the pentothal it yellow. The pancuronium and 23 potassium are clear. So they can easily identify the 24 yellow from the blue from the clear. And the two clear 25 are separated by a blue syringe in between so they can't

37
1 get mixed up. 2 Q And when you add flush solution to -- I'm sorry. Let 3 me step back. I think you said earlier, just a bit earlier 4 that you add some flush solution with Heparin to the 5 syringes containing each of the chemicals; is that correct? 6 A No. 7 Q I'm sorry. I think you said a little bit earlier that 8 you improvised a method for dissolving the thiopental. 9 Could you explain that to me again? 10 A Well, it depends on what they hand me, what kind of 11 corks, what kind of needles, what kind of glass bottles 12 they're in. I could dump it in an ashtray and pour water 13 in it and suck it in a syringe, that would be one way to do 14 it, but I'm trying to do it in a sterile fashion and 15 medical fashion. So I'm able to put a needle around the 16 plastic stoppers and inject solution into the powder and 17 then aspirate it through that same 50 cc syringe. I'm able 18 to do that five times on five separate bottles without 19 spilling too much and getting assured that I have 2.5 grams 20 in my final solution after I have shaken up those five 21 vials. 22 Q I see. And maybe if you state it more simply for me, 23 because I'm still not getting it. So you start out with 24 the syringe and a bottle. And is the thiopental powder in 25 the bottle or in the syringe?

38
1 A The thiopental is in bottle, but it's not a bottle in 2 the sense -- it's a straight cylinder tube with a plastic 3 cork that is designed to lock on to another plastic cork 4 that contains water. As the two mix, then it goes out the 5 other end and there's a needle built into the system, so if 6 they use their system we would be required to break the 7 needle off of either five or ten bottles and then connect 8 these broken needles individually into our injection system 9 and inject each of those individually, it would -- we would 10 have 250 -- it would take five to ten minutes for these 11 people to inject that as it's prepared, which is three 12 times longer than our entire process takes. It's 13 unacceptable. 14 Q So what you're just describing was the way that you'd 15 have to do it if you used -16 A Five bottles into -17 Q I'm sorry. Let me step back for a minute. What you 18 just described was what you'd have to do if you mix the 19 stuff in a way that -20 A The mixing is -21 Q I'm sorry. Just for the sake of the record, if you 22 could just wait until I'm finished. 23 A Yes. 24 Q Sorry. So the thiopental mixing process that you just 25 described where you have to break the needles off, that's

39
1 what you would have to do if you used the mixing process 2 that the manufacturers intend in their packaging? 3 A Yes. They contain each about 100 milliliters of 4 solution, so the total injection would be five or ten times 5 100. If we injected five grams or 2.5 it would be five 6 individual injections. The problem is this broken needle 7 is about one-fourth the size of our tubing. It does not 8 have a locking mechanism so if you inject forcibly you can 9 actually blow the connections apart. It just is totally 10 nonacceptable for nonmedical personnel to deal with a drug 11 designed for an anesthesiologist on a busy schedule. 12 Q Okay. So what technique have you developed to avoid 13 that situation? 14 A As far as the inmate -- as far as the guards doing the 15 injection, they can't tell there's any difference because 16 they still walk in and there are six syringes the same 17 color in the same block as it's always been, and there's 18 more than adequate drug to accomplish our goal. 19 Q Right. So how do you mix the thiopental then to avoid 20 the situation you were just describing where you have to 21 break the needles? 22 A I simply use one of the 50 cc syringes and go to each 23 individual bottle and I start with about 30 cc's in the 24 syringe and inject it into each bottle, shake it until it's 25 dissolved, withdraw it in the syringe, then inject that

40

1 same solution into the next bottle, and do this five

2 times. So it's a little labor-intensive but it can be

3 done.

4 Q I see. And how many cc's do you end up with total

5 then?

6 A In that case, 40 cc's, but I wasn't going to change

7 and say oh, I mean to add five because somebody might come

8 and look at this later and think I made a mistake. I knew

9 what I was doing.

10 Q So you put 30 cc's --

11 A 40.

12 Q I'm sorry.

13 A 40 was in the record there.

14 Q I'm sorry.

15 A I may have started with 30, but by the time you add

16 all the chemicals you may get to 40, so you have to allow

17 for the chemicals being dissolved in your solution as you

18 go through the process.

19 Q Okay. I understand. Thank you. That makes it clear

20 for me.

21

So you also prepared a 2.5 gram dose for Michael

22 Taylor's scheduled execution; is that correct?

23 A Yes, I think that's what it says.

24 Q That's just on the log, the entry, 2/1/06.

25 A Yes.

41
1 Q Do you recall stating in an interrogatory answer, this 2 is in your responses to the court's interrogatories, it's 3 number 5 on page 6, do you remember stating that you used 4 2.5 grams for Mr. Taylor because you were aware that 2.5 5 grams had been adequate in Mr. Gray's execution? 6 A I was aware that two grams has been adequate all over 7 the country. 8 Q Okay. Let's just look at your answer for -9 A I know that's what my answer was. Yes, that was the 10 best answer I could give at the time. 11 Q So when you said that the 2.5 was adequate for 12 Mr. Gray, on what did you base -- what facts or experience 13 did you base your judgment that it was adequate? 14 A Complete loss of consciousness in 15 seconds after the 15 injection started. 16 Q Did you monitor Mr. Gray's anesthetic depth during the 17 execution? 18 A I monitor -- the only thing that can be monitored is 19 facial expression, and you can judge when the effect of the 20 drug is accomplished, and that can be seen from across a 21 room through a window. And when that effect occurs then I 22 know the inmate is unconscious. And there's absolutely no 23 difference in any of these injections. Again, because the 24 tubing is eight, nine feet long, by the time the 15 seconds 25 I know that inmate may have only gotten 500 milligrams of

42

1 injection. That's the other reason we use -- allow

2 premedication is because a calm, relaxed individual

3 requires a lot less drug than an agitated individual. And

4 as a physician I am there to make sure this man is in a

5 calm state and that he has an IV injected -- inserted

6 completely painlessly that will not fail during the course

7 of the procedure.

8

MS. ANDERS: I'm sorry. Would you read that

9 answer back for me?

10 A I can't.

11

(The prior answer read back by the reporter.)

12 Q (By Ms. Anders) So you said that you can see that --

13 an inmate's facial expression from where you stand?

14 A Yes. That's the only thing any anesthesiologist uses

15 in the course of inducing a person when pentothal was still

16 used, was you simply start injecting, look at the face, and

17 again, it's difficult to describe, but I can tell instantly

18 when the pentothal has taken effect. And in medical

19 practice the instant the pentothal has taken effect they

20 gave absolutely no more because then they move on to the

21 actual anesthesia which has to be started before the

22 pentothal wears off.

23

In our case, we're just worried about when he

24 reaches that point, because there is a phenomena with

25 pentothal where if it's given to some agitated individuals

43

1 they can in fact have a seizure or, you know, they'll say

2 this isn't working because they're agitated. And there is

3 an effect of pentothal that will cause agitation or

4 seizures.

5

So once that facial expression change has

6 occurred, we know we're out of the danger zone and that

7 this agitation or seizure will not occur.

8 Q And just so I'm clear, do you stand in the execution

9 room? Do you stand behind the two John Does who are

10 injecting the drugs?

11 A Yes. In case they have a question, problem, I am

12 there to give advice. I'm not there to inject. But I can

13 see the side of the inmate's face and that's all

14 sufficient. He goes from looking toward witnesses to

15 looking around the room to a completely relaxed facial

16 expression.

17 Q Okay. Thank you. Just to go back to the mixing the

18 thiopental. I think you briefly stated before why you

19 thought you might have had trouble mixing the thiopental.

20 Could you explain for me why again why you think that might

21 be?

22 A Some companies, because of their suspecting that

23 somebody will try to mix the wrong dose or give the wrong

24 dose, I know that certain drugs -- this drug is mixed with

25 two containers so you cannot mix it any other way

44

1 theoretically, but also some medications have an inert

2 compound in or a secondary compound to prevent improper

3 dose. The case in point being some cough medicines that

4 have a small amount of epicate (phonetic spelling) that if

5 you take too much cough medicine you will get enough

6 epicate to cause vomiting. But if you take the right dose,

7 you get the right amount of cough medicine but not enough

8 epicate to cause vomiting. So there are many things in

9 drugs that are used by the industry, and I suspect there

10 was possibly an inert compound added to prevent improper

11 mixing of these drugs.

12

Again, I am aware now that all of the pentothal

13 we have has expired so I have no clue who is going to

14 supply it, if we can get the next pentothal, if we have

15 another execution. So I will have to review this with the

16 Director to find out what is available or what he thinks we

17 should do about changing it if we can no longer get this

18 pentothal. I'm hoping we can still get it at least in one

19 form or another.

20 Q You mean you might not be able to get thiopental at

21 all?

22 A It's always going to be available somewhere. It may

23 be more difficult or it may come in these doses that is

24 very difficult for us to manage, but pentothal is like

25 aspirin, it's never going to go away because it's part of a

45
1 compound of drug that is -- well, I can tell you all 2 barbiturates, and it's a member of the barbiturate family 3 of controlled drugs, and there's nothing in it that can 4 cause heart attack, lung cancer, like these newer cosmetic 5 -- newer drugs that are coming out that have these horrible 6 side effects. Pentothal is not going to be taken off the 7 market, so there's no reason for it to be removed from the 8 market. It just may be more difficult to find. 9 Q I see. And just to go back to your earlier answer for 10 a minute. Are there any other things you can think of that 11 might account for the trouble mixing the total five grams? 12 A They may have a special compound in their solution 13 which I can't get out of the bottle that allows for more 14 rapid dissolution. Whether I use a saline or water 15 solution should make no difference on this, but they may 16 have a compound in their solution that allows it to 17 dissolve more easily, but I can't get theirs out of the 18 bottle without actually breaking glass. 19 Q I see. And did you ever consider the possibility that 20 the thiopental might be defective? 21 A No. It's a compound. It's like salt. There's -- or 22 sugar. It's a chemical. There's nothing -- it 23 deteriorates after it's been mixed, but there is nothing in 24 pentothal that can out-date as long as it's in powder. 25 Q I see. So it's pretty stable?

46
1 A Very. 2 Q Is it stable even if, say, air gets to it or something 3 like that? 4 A Yes. It's just what it becomes -- in the liquid form 5 it does lose some potency, and again, it would be after a 6 week or two, because I know they would mix -- they would 7 usually mix it at the hospital the first of the week and 8 use it all week with no problems, and if there were any 9 left they would simply mix a new bottle the next week. So 10 it loses potency when it's in liquid solution. And when 11 it's over that long period of time in a multi-dose vial 12 after it's been open for a week, there's a possibility -13 you are more worried about contamination of the solution 14 rather than deterioration of the product. 15 Q I see. And I think you also said that you might 16 consider using other drugs if you can't get thiopental. 17 What other drugs might you consider? 18 A Well, the most common use, the reason pentothal is no 19 longer available is because everyone -- I have three, four 20 anesthesiologists in my immediate family, they use Diprovan 21 now as their No. 1 drug for inductions and even some 22 anesthesia. Diprovan though requires a continuous 23 infusion. In other words, it has been to be given 24 constantly. It looks like milk hanging in a bottle. It 25 looks like milk in the IV tubing as it's going into the

47
1 individual. The milk runs in their arm. The instant that 2 milk disappears from the IV the individual getting it will 3 sit up and walk out of the room with no side effects. It's 4 instant recovery. The anesthesiologists love it, but we 5 can't use it. 6 Q Is that primarily an induction agent? 7 A That's the No. 1 induction agent today. 8 Q So it's not used -- is it used for maintaining 9 anesthesia too? 10 A Only in short cases. They would use it for my cases 11 because I can do most operations in ten minutes, but for 12 most surgeons they would use other agents. 13 Q Are there any other drugs you can think of? 14 A According to all of my family anesthesiologists,
15 really, no. It's still going to be down to a barbiturate. 16 If not pentothal, one of its other anologs which have a 17 slower onset and a longer duration. But the pentothal 18 we're using has the most rapid onset of all, but it's also 19 metabolized quicker. We're talking 15 to 20 minutes as 20 opposed to the long-acting ones that may last up to an 21 hour, like sleeping pills. The barbiturates that are used 22 for sleeping last six to eight hours, but they take longer 23 to take effect and some of them can't be given IV. 24 Pentothal can be given IV. 25 Q So pentothal is preferable because it takes effect

48
1 more quickly? 2 A Yes. It's the fastest, but it isn't good in an oral 3 form. If you took it by mouth, it would -- I think it has 4 no effect. It's eaten up by the acid in the stomach so it 5 has no effect if given orally, so it has to be given IV. 6 Q Okay. Thank you. I'd just like to look at another 7 one of your interrogatory answers now. It's in the third 8 set which are the court's interrogatories. It's No. 5 -9 the answer on 22 begins on page 5. 10 A Page 5? 11 Q The top of page 5. 12 A Rate of infusion is at the top of the page? 13 Q Yes, that's correct. So you said, "The rate of 14 infusion and concentration of the dose ensured that 2.5 15 grams was more than sufficient to make the offender 16 unconscious." So just because I don't have any medical 17 training or anything, could you define rate of infusion for 18 me? 19 A The speed with which the drug is given. So if I 20 dilute it in a larger volume the same amount of drug, it 21 takes longer to give it. The speed that the drug is given 22 has a significant effect on its -- the way it reacts in the 23 body. If you give it in an IV in the arm, because a lot of 24 these drugs are concentrated, they will induce spasm. So 25 what you think you're giving might be leaking around the

49

1 needle, may be slowly getting up the arm, so you can't give

2 it as fast. And the problem compounds itself because the

3 slower you give it the more the body metabolizes it, so

4 it's not a one-to-one ratio. So if you give it in 30

5 seconds you get one result, but if you give it over two

6 minutes, the result is completely different. At some point

7 eventually they're all going to be the same, but the speed

8 with which the individual goes to sleep directly affects

9 how fast -- is affected by how fast the drug is given.

10 Q Okay. And what is the rate of infusion for an

11 execution?

12 A Because of the length of the tubing and the size of

13 the syringe you can only inject it -- you can't inject it

14 any faster than a certain rate. The big heavy syringes

15 just don't allow you to go any faster. So if they push

16 harder, it doesn't go any faster. You can go maybe slower,

17 but the tubing and the syringe act as a monitor to the way

18 the injection is given. If they try hard, they can do it

19 in 15 seconds. If they do it slow, it takes 20 seconds.

20 So the size of the syringe, the length of the tubing has a

21 serious -- an effect on the speed of this injection, the

22 way I've got it set up.

23

The size of the needle at the other end is going

24 to have equally an effect because that's what happened in

25 the case of Ohio, Texas, other states where they have these

50

1 bad results. They have a small needle in the arm so no 2 matter how hard you push that 50 cc syringe it's going to 3 take you three minutes to give the drug and you will not 4 get the effect you expect. You'll get an agitated inmate 5 who is agitated. 6 Q So if you had to put a number on the rate of infusion, 7 just if you were going to do calculations here -8 A 30 seconds. 9 Q Okay. So the rate of infusion is 30 seconds? 10 A I would estimate, yes. 11 Q Okay. And what was the concentration of the

12 thiopental solution for Mr. Gray?

13 A In his case we had 2.5 in 40 cc's I think, if I'm

14 thinking of the right one.

15 Q Yeah, those figures sound right to me.

16

I'm sorry. Just because I can't see, are you

17 doing a calculation or --

18 A Oh, no. I'm waiting for the next question.

19 Q I'm sorry. So you're saying the concentration would

20 be 2.5?

21 A I'm dyslexic. I cannot figure those things out. I

22 can't. I have to rely on the nurse. When I say give me

23 the first med, she hands me the syringe.

24 Q I'm sorry. So when you were mixing the drugs for

25 Mr. Gray and you said that the rate of infusion and the

51

1 concentration made it -- made the 2.5 grams sufficient, is

2 that a calculation that you would do at the time?

3 A No, no, that's just judgment. As long as I have 2.5

4 grams, whether I had it in 30 or 60, the priority was

5 whether it was in one syringe or two. So once I had 2.5

6 grams and I knew from previous mixing that I could possibly

7 do it so I started with the smaller amount so when I was

8 finished I had 2.5 grams in 40 cc's rather than 50 or 60

9 cc's. And to my understanding of what our objective was,

10 that was better than just adding more inert solution to the

11 mix to dilute the drug.

12

When we're giving it through a central line, a

13 fast-flowing central vessel, the concentration is not a

14 problem. It's only when you're giving it through a

15 peripheral IV does the concentration affect the rate of

16 infusion.

17 Q I see. So the concentration can affect the rate of

18 infusion?

19 A If you're not using a central line, yes.

20 Q Does the concentration make it slower?

21 A Yes, because it will put -- it will -- the solution

22 becomes thicker, and also it puts a spasm in the vessel

23 that prevents it from flowing -- it has to flow through

24 the vessels to a major vessel before it has any effect, and

25 that can take a number of seconds, whereas when it's in a

52
1 central line, our central line is positioned inches from 2 the heart so the minute that injection is in it's 3 immediately in the heart and distributed to the entire 4 body. 5 Q I see. So when you said that the rate of infusion and 6 concentration were more than sufficient -- I'm sorry. The 7 rate of infusion and the concentration of the dose ensured 8 that the 2.5 grams was more than sufficient, you're relying 9 on your medical judgment? 10 A Yes. 11 Q Were there any other factors that you considered in 12 considering whether the thiopental was sufficient? 13 A No, because I knew we were dealing with a central line 14 and it was going to be given rapidly so I didn't have to 15 worry about diluting it up to a larger amount. I mean, you 16 eliminate all of those calculations by using a large core 17 central line catheter and you're not going to have to worry 18 about extravasation, leakage, any of those factors. Or 19 pain of injection. The inmate has no inkling that these 20 drugs are being injected. Absolutely no sensation other 21 than he gets sleepy. 22 Q I see. And for the next execution that occurs, 23 assuming that you participate, what dose of thiopental do 24 you think you'll prepare? 25 A I will recommend 2.5 if we have to deal with the same

53

1 equipment that we're dealing with. If we get another

2 supplier that supplies us one-gram bottles in premixed or

3 mixable in 25 cc's each, then I will recommend to the

4 Director we use the two-gram, which is a more convenient

5 way of mixing.

6

It's only when we step outside the parameter of

7 2 to 2.5 in one 50 cc syringe is there a serious change

8 occurring as far as I'm concerned, or that I would have to

9 discuss this with the Director who relies on my judgment to

10 make this happen.

11 Q Okay. So just to go back for a minute, you said that

12 if you found a supplier who supplied it in one-gram bottles

13 you would recommend two grams; is that what you said?

14 A Yes.

15 Q So a total of two-gram dose?

16 A That would be more consistent with national standards

17 as opposed to using three bottles and a three-gram dose.

18 But again, that's just -- as long as you're over two grams

19 you're going to have 100 percent unconsciousness after 15

20 seconds. It's only -- the one-gram dose is only

21 insufficient when you have a serious drug addict or obesity

22 over 300 pounds.

23 Q I see. So for a normal inmate you could give one

24 gram?

25 A For most -- for everybody sitting in this room I

54
1 could give you 500 milligrams and everybody would be 2 unconscious. 500 is enough. That's why the new doses come 3 in 500-gram bottles. That's -- the standard dose is 500. 4 Q When you say that 500 is enough, it's enough to render 5 somebody unconscious; is that what you mean? 6 A In order to proceed with an anesthetic. This is not 7 the execution setting. This is giving you an anesthetic. 8 If you receive 500 milligrams of IV pentothal, you would be 9 asleep and unconscious, but still breathing. 10 Q Would you be unconscious to the point where somebody 11 could perform surgery on you? 12 A No, it's not an anesthetic. It's a sedative. It has 13 no anesthesia properties. Surgery takes a long time and it 14 wears off almost within minutes, so you wouldn't even have 15 time to get ready to do surgery. 16 Q I see. So you wouldn't use thiopental alone if you 17 were doing surgery? 18 A Never. It's not an anesthetic. It's a sedative. 19 Q But for an execution -20 A It's a sedative. 21 Q Would a five-gram dose be sufficient for an execution? 22 A One gram would probably be sufficient if he wasn't a 23 serious drug addict or a certain amount of body fat. But 24 we're not in a position to change once we have started, so 25 my recommendation to the Director was to -- and the

55
1 recommendation of other states, is to go two-gram minimum 2 to ensure they're going to get the 99th percentile, and if 3 every state agrees that they're over three, 400 pounds they 4 are going to have to go to three grams. 5 Q Would one gram be sufficient for you to do a quick 6 surgery on somebody? 7 A No, never; it never works. 8 Q So would the person wake up? 9 A If I cut him, yes. They're not -- it has no 10 anesthesia. It's a sedative. 11 Q I see. So -12 A Anesthesia is what keeps you from feeling pain. 13 Pentothal is just a sedation like a sleeping pill. If I 14 operated on you when you were asleep, you would wake up 15 immediately. 16 Q Okay. So the thiopental would put you to sleep and 17 then if you felt something painful you would then wake up? 18 A If I -- at a certain point in time you would respond. 19 Again it depends on the level. When you go through the 20 stages of induction, which is what we're dealing with with 21 pentothal, you go through them, but you don't immediately 22 wake up. You must go back through the stages that got you 23 through that stage, if that makes sense. In other words, 24 you can't go to a level of total unconsciousness to 25 immediately wake up and talking. You have to come back

56
1 through grogginess and the other stages that you went 2 through going to that. Diprovan avoids all that, and 3 that's why some people stopped using pentothal and went to 4 Diprovan because you immediately wake up after the drug is 5 stopped with no side effects and no residual. 6 Q So when you give thiopental for an execution, is the 7 goal total unconsciousness? 8 A The goal is to render the inmate unconscious so the 9 paralysis agent can be given and then the drug given to 10 stop the heart beat. Again, you're arguing how many grains 11 of powder do you put in a bullet if we were using a firing 12 squad. The amount of powder in the bullet has very little 13 affect on the effect of the bullet. 14 Q I see. So if you use pentothal to induce total 15 unconsciousness because it's not an anesthetic, then 16 somebody could still wake up if you -17 A Given sufficient time, it's reversible, yes. 18 Q Okay. 19 A In 15 minutes he would probably wake up. 20 Q Okay. Let me step back. I think you said that 21 thiopental has no anesthetic properties? 22 A That's correct. 23 Q So then if somebody is put to sleep with thiopental, 24 then they might -- then if you cut them, they'd wake up? 25 A Depending on how much pentothal they had and how long

57
1 you waited after the injection. But still that point has 2 nothing to do with executions. 3 Q And why is that? 4 A We don't inflict any pain ever. 5 Q I see. 6 A It's all done through a central line. They can't feel 7 anything. 8 Q When you say that, could you just sort of explain that 9 to me? 10 A If you were injecting through the arm they might 11 theoretically feel the potassium if they were not 12 paralyzed, but by using a central line -- all the 13 complications of lethal injection have to do with how 14 the IV is put in, not with the drugs. 15 Q So when potassium is injected into the femoral vein, 16 it doesn't hurt? 17 A Absolutely not. 18 Q What do you base that on, that conclusion? 19 A It's impossible. It's injected into a major 20 free-flowing vessel. The only way it hurts is by causing 21 spasm in a vessel in your hand or in your arm or in your 22 leg. Once it passes through the arm or leg into a central 23 high-volume vessel, it's completely painless. 24 Q I see. So I'm just having a little bit of trouble 25 following because of my lack of medical background. So I

58
1 think you said two things. One is that it isn't painful in 2 the femoral vein because that vein doesn't spasm? 3 A Absolutely not. It's a high-flowing vessel. It's not 4 a cutaneous vessel. Cutaneous vessels on your skin must
5 have muscles in them to constrict. If you accidentally cut 6 yourself -- peripheral vessels have to contract and stop 7 bleeding or else everybody when they cut their finger would 8 bleed to death. Central veins do not need to constrict so 9 they have no muscle in it so you do not feel a spasm and 10 they cannot react to drugs as they are being injected. 11 Plus the drug is diluted instantly. The amount of blood 12 flowing through the interior vena cava amounts to a quart 13 every two seconds, so it's instantly dissolved. 14 Q And what is the concentration of the potassium that
15 you inject? 16 A Higher than can be given through a peripheral IV. 17 We're using a drug that was designed -- a bottle that was 18 designed to be put in a quart of IV fluid in order to 19 adjust electrolyte imbalance on people that are on diuretic 20 overdose. They eliminate so much potassium, and potassium 21 allows for stability of the heart beat. So we will put one 22 of those bottles of the six that we use in a large IV 23 solution and give it gradually over six hours to patients 24 in ICU. We can't give it any faster than that in the 25 clinical setting.

59
1 Q If you'll look at the chemical log again, which is 2 Exhibit No. 4, just looking at the first line on the first 3 page, for the potassium chloride it says amount, 120. 4 A Yes. 5 Q Is that 120 milliequivalents? 6 A I have been informed that the new solution, and we 7 have been through three, has two milliequivalents per ML, 8 so -- and I could stand corrected, but it's probably 240 9 that we are using right now. 10 Q I see. So you're using 240 milliequivalents in 120 11 cc's or milliliters; is that correct? 12 A Yes. Again, we're trying to maintain the continuity 13 for the people doing the injection. Since they're 14 nonmedical people, they want to come in and see those six 15 syringes just as they saw them the previous time because 16 they don't want to make any mistakes. 17 Q I see. 18 A I could probably get by with one syringe if we always 19 knew we were having that 240, but it's much easier for the 20 other people to see this standardized tray with those 21 syringes as they remember them from the previous time. 22 Q I see. So there was a point where the dose was not 23 240. It was 120? 24 A It was 120, and again this log is really -- people 25 writing on the previous lines, and as I stated before I'm

60

1 incapable of copying one line to the next consistently, but 2 I try. 3 Q So when the dose is 120, you also used two syringes to 4 keep it consistent? 5 A Always two syringes. Now, we did have one individual 6 that I do remember when we were going through this where I 7 recommended, because of the size of the inmate and because 8 of what I previously stated, if we do not get the heart to 9 stop on two syringes we then have to give two plus, meaning 10 three syringes, so we'd have to give a total of five. It

11 was much easier to have three syringes available and give

12 it to ensure -- and the factor is called fat absorption,

13 that the fat absorption of the potassium would not use up

14 enough of the drug that the heart would stop at an

15 appropriate time.

16

So in one instance I recommended and did not

17 check or tell anybody because it was based on medical

18 dosage that this person would require a third syringe of

19 potassium. And I don't remember whether it's even in this

20 log, but one instance, because of the obesity of the

21 inmate. And again, Texas, California, those places, they

22 have no one that can make those decisions, so if they had

23 someone of that weight, they might have had a serious

24 problem. But we do this on an individual basis and for

25 that reason I recommended that we use more so we would not

61
1 be sitting there for 30 minutes waiting for the electrical 2 activity to stop. 3 Q I see. So just going back to the potassium in the 4 femoral vein, so if -- the concentration is I guess two 5 milliequivalents per milliliter; is that correct? 6 A Right. 7 Q And that concentration won't hurt in the femoral vein? 8 A Absolutely not. It's not actually going in the 9 femoral vein. We use the femoral vein to insert a catheter 10 that I think is about 16 inches long, so actually from the 11 femoral vein if you measure up to your xiphoid which would 12 mean it's about two inches from the heart, so the catheter 13 is almost in the heart when -- so the drug is directly 14 injected below the heart as it enters. 15 Q I see. And what do you base your conclusion that it's 16 not going to hurt at all on? 17 A The same as before. It's not a peripheral vein. It's 18 diluted so rapidly in the heart. 19 Q Are there any calculations that go with that? 20 A Heavens, no. 21 Q So you don't have to calculate the concentration? 22 A No. 23 Q I see. Okay. I think you said in one of your 24 interrogatories, this was in the plaintiff's supplemental 25 interrogatories, you don't have to turn to it unless you

62
1 don't remember, but I think you stated you have had 2 conversations with previous Directors of Corrections 3 regarding your authority to make changes to the execution 4 process? 5 A Well, we don't exist in a vacuum. I mean, we will, as 6 we come in for the execution, basically I go to the 7 Director's office. The Director is usually always there, 8 plus his assistants, and so we will visit about this and he 9 will ask are there problems, do you anticipate problems, 10 have you had problems, in the course of that conversation. 11 So there is some discussion every time there is a execution 12 if I anticipate problems or if I have adequate supplies or 13 what do we need or what I would recommend to be done in the 14 future, so, yeah, we do discuss these. 15 Q And do some of these discussions involve the scope of 16 your authority and context of the procedure? 17 A No. He's relying on me to keep him looking good, to 18 use his terms directly, so he does not have to go out and 19 explain why we made a mistake or we may have a problem or 20 why it didn't go smoothly or why a clamp was left on the 21 tubing and we had to close the curtains and make an 22 adjustment. That will not happen when I'm there. 23 Q So your understanding is that you have the authority 24 to do whatever is necessary during the execution to ensure 25 that it goes smoothly?

63
1 A Yes. And if I can't get it done, I will contact him 2 and he will make sure what I request is done. But so far 3 we have -- we have anticipated every possible problem with 4 this dosage, with these catheters, with these solutions, 5 and we see no reason to make any significant change other 6 than drugs not available or, you know, the catheters that 7 we use, the IV tubing, all that is current state of the 8 art. 9 Q I see. So it's your understanding from previous 10 directors that you have the authority that is necessary to 11 make the execution go smoothly? 12 A They're relying on me to make changes or suggestions 13 that they will agree with if I think a change needs to be 14 made. They're relying on my medical expertise. No other 15 state has a physician that they can consult and say what 16 went wrong when these guys set up in Ohio, what went wrong 17 in Texas when they sprayed the viewers' gallery with 18 pentothal. 19 Q I see. Have you had any discussions with Director 20 Crawford about the scope of your authority? 21 A Oh, yes. We talk -- I talk in his office and at the 22 time of the execution. In fact, he's the only director I 23 have actually gone over to his office for other reasons and 24 visited about this. And again, he has no background in 25 corrections and he has no background in medicine, so the

64
1 other corrections officers had long backgrounds in 2 corrections so they were aware of what we were doing and 3 why we were doing it. Since he has no background in either 4 field, he reiterated that he's totally dependent on me 5 advising him what could and should and will be done, and he 6 will back up -- if I think there's a change that needs to 7 be made, he wants me to quickly inform him so he can make 8 the appropriate changes. 9 Q I see. So it's your understanding that if you thought 10 a change to the execution procedure needed to be made you 11 would -- Director Crawford would defer to your opinion? 12 A Absolutely. 13 Q And would you have to inform him first before making a 14 change? 15 A If I made a change of the number of syringes or if I 16 made a change of that magnitude, I would inform him that he 17 is going to see different times. And that's the only way 18 he's going to know something -- I would warn him that -19 he's very used to sitting up in his office and seeing one 20 drug, next minute another drug, next minute another drug. 21 Two minutes later he's informed that we're finished. And 22 if we had to add extra syringes or change something 23 significant to where you can't physically inject that many 24 syringes, then he would -- I would tell him it's going to 25 be two minutes between the first and second dose and then

65

1 he would understand and know why it happened. Or someone

2 would ask him a question at the press conference, which he

3 has to give, he would be informed of what that change was

4 so he could answer intelligently.

5 Q I see. So let's just go through that a little bit.

6 So what types of changes might you not inform him about?

7 A Well, when we could not mix the drugs, he would not

8 care that we could not mix the drugs as long as I could mix

9 a sufficient dose. If I would have required -- could not

10 mix it that night and would require two syringes instead of

11 one, I would immediately inform him.

12

But I have no way of returning from the execution

13 chamber to the Director's office without upsetting their

14 schedule so it would have to be a phone conversation, not a

15 face-to-face conversation.

16

And I'm also aware that we have no other way to

17 change once we're in that room and we're given the drugs

18 that they thought were the right drugs when they arrived.

19 Q I see. So you have the impression that Director

20 Crawford wouldn't care whether the drugs couldn't be mixed

21 or something like that, as long as the number of syringes

22 stayed the same, is that --

23 A Well, the only reason he would know the number of 24 syringes were different is because the difference between 25 the first and second drug would take two minutes instead of

66

1 one.

2 Q I see. Have you ever had any conversations with

3 Director Crawford that sort of gave you the sense certain

4 things you would inform him about and certain things you

5 wouldn't?

6 A When these actions occurred in this state and other

7 states, we were aware that we were going to be under a fine

8 tooth comb so we were already exploring if certain drugs

9 were ruled unacceptable we would have to go to alternate

10 drugs. So I was researching and my conclusion was that

11 it's going to cause problems if we have to switch drugs.

12 Q And what do you mean by that, that it would cause

13 problems?

14 A Well, if Diprovan is going to be used, it requires a

15 continuous IV infusion. You can't put it in a syringe and

16 inject it. So the entire procedure is going to have to be

17 changed.

18 Q Because you need a continuous IV?

19 A Continuous infusion. We are already anticipating that

20 because what we use is called a triple lumen catheter. I

21 can simultaneously inject three independent drugs without

22 danger of intermixing in the tubing because the catheter we

23 use has three individual injection sites so I can get one

24 in one and another drug in another.

25

So if a change should occur where we require

67
1 continuous infusion of Diprovan, we can simultaneously give 2 the other drugs through another port while the Diprovan is 3 infusing. 4 Q I see. So if you use the Diprovan you would use one 5 lumen of the catheter for the Diprovan and then use the 6 other lumens for the -7 A Yes. The triple lumen anticipates that problem. 8 Q I see. So is that why you use the triple lumen 9 catheter now? 10 A We use the triple lumen because that is the most 11 complete tray available. There are single lumen catheter 12 trays that are available, but they do not require all the 13 instruments that's on the triple lumen catheter that are 14 necessary to treat hematoma, pneumothorax, those type of 15 complications. Should they, in the remote possibility that 16 any of those occur, there's sufficient material on that 17 large tray to treat and correct those complications. 18 Q I see. So that tray contains equipment necessary to 19 deal with any complication from the femoral catheter? 20 A Yes. It's a full instrument tray on triple lumen, and 21 the single lumen does not have a full instrument tray. 22 Q I see. And that tray comes with a triple lumen 23 catheter? 24 A Yes. It's all packaged as one unit. 25 Q So just hypothetically, if you had to change an aspect

68
1 of the procedure that wouldn't affect the timing of the 2 drug, say giving a different drug but using the same amount 3 of solution, is that something that you would inform the 4 Director about? 5 A If it was the same number of syringes and we could 6 give it with sufficient speed, the Director would not be 7 aware. I mean if -- the reporters are watching this so 8 closely that if there is a difference of one minute or so 9 between injections or 10 or 15 minutes to time of death 10 they immediately have questions about it. So if there 11 would be a problem in what the public perceives, then I 12 would inform him this is why this happened, this is why 13 this didn't happen, so he -- since he has no medical 14 background he wants to be informed and so I do a good job 15 of keeping him informed why something happened. That's 16 more what he's interested in, rather than opposed to what 17 am I going to change on my own authority. 18 Q I see. Is there anything that wouldn't affect timing 19 that you would tell him about, any kind of change? 20 A No, because all he sees is the timing. 21 Q I see. So you'd inform him about something that 22 affected the timing? 23 A If there was a perceptible difference in the way the 24 execution was carried out that someone in the -- one of the 25 three visitors gallery would ask him a question about or

69
1 anticipate a question, why did this happen, why did he 2 cough, why did he wiggle, why did he move, he's prepared to 3 answer those questions. 4 Q I see. So you'd inform him about anything that 5 happened -6 A Absolutely anything. 7 Q Anything -- I'm sorry. 8 A Anything that could be noticed or questioned. 9 Q So you'd inform him about anything that happened 10 during the execution that might be noticed by the 11 witnesses? 12 A Yes. 13 Q Okay. Thank you. Are you aware -- are there any 14 regulations or rules that require you to notify the 15 Director about certain aspects of the procedure or certain 16 changes? 17 A Absolutely not. This is just good practice. 18 Q I see. And is any part of the execution procedure 19 written down? 20 A I have never seen it. If it was, it would have been 21 written on my recommendations. 22 Q I see. Do you have any idea why it might not be 23 written down? 24 A I'm sure it's written down somewhere. If they're 25 checking the logs of all the drugs every time we use them

70
1 and recording expiration dates and number of sheets and 2 needles that we use, I'm certain they have it written down 3 somewhere. 4 Q But in terms of the aspects of the procedure that 5 you're responsible for, that you perform, those aren't 6 written down, to your knowledge? 7 A It might be written in there, but it would be written 8 on by somebody observing what I was doing and using their 9 interpretation. So if there was a written procedure that 10 they had done I would -- you know, I'm curious to see what 11 they think I'm doing, but I don't know that they write down 12 the individual details of how I insert an 18-gauge rather 13 than a 22-gauge or a 14-gauge needle. 14 Q I see. So people might write things down as you're 15 doing them, but there's no guide that you follow as you're 16 doing it? 17 A Absolutely not. 18 Q So you just rely on your memory? 19 A Yes. 20 Q And your judgment? 21 A Yes. 22 Q Do you have a clinical practice? 23 A Because of a severe heart attack I have quit active 24 practice for a few years. Now that I am in excellent 25 health, my Jesuit training does not allow me to sit on the

71

1 byside so I have recently completed a staff application and

2 I will be back in active practice within the month. And I

3 have also been doing medical missionary work in South

4 America, Central America. I will go to Central America and

5 do 150 operations a week. I am old but not slow.

6 Q Sure. Certainly. About when did you -- when did you

7 stop practicing before?

8 A As a surgeon in the operating room every day, which

9 gave me the heart attack, was probably around 2000, 2002.

10 I have since stayed on as medical director of a -- I have

11 worked at the Vein Clinic in St. Louis. I have --

12

MR. PRITCHETT: Objection on the grounds that

13 we're releasing identifying information at the moment.

14

MS. ANDERS: We would certainly consent to that

15 type of information being --

16 A Yes. I have always worked part-time in lokeins work

17 and injection treatment or medical director of a vein

18 center.

19

MS. ANDERS: Okay. I'd just like to -- maybe we

20 can establish is it okay for the doctor to answer these

21 questions about where he's worked and things like that

22 because we certainly would agree that that all should be

23 subject to a protective order.

24

THE COURT: You say is it okay that he not be

25 asked that, or not respond?

72

1

MS. ANDERS: That he go ahead and answer that

2 subject to Mr. Pritchett's objection. Because otherwise,

3 we're going to have to talk about the protective order

4 later and I might have to go back and ask him those

5 questions because he won't have given a substantive answer.

6

MR. PRITCHETT: Well, I object to the identifying

7 information coming out in general other than, as I

8 mentioned earlier, general time frames or general

9 locations, even subject to the protective order.

10

THE COURT: I think he can talk about his

11 practice in general. You don't have to specify where it is

12 you practice, that kind of thing. Just an inquiry as to

13 the background, but not where.

14

MR. PRITCHETT: I still ask that that identifying

15 information be subject to the protective order.

16

THE COURT: I just told you how my ruling is

17 going to be on that, protective order notwithstanding.

18

MR. PRITCHETT: Okay. Thank you, Judge.

19

MS. ANDERS: I'm sorry. Could you restate that?

20

THE COURT: No, I won't restate it. Continue

21 your examination. You don't have a lot of time left.

22

MS. ANDERS: Then I guess I'd just like to note

23 that I probably will need more time.

24

THE COURT: No, I don't see any reason to extend

25 the time at this time.

73

1

MS. ANDERS: Okay.

2 Q (By Ms. Anders) So I think you mentioned that you are

3 still doing some practice now; is that correct?

4 A Because I worked for a number of years I still have

5 patients call me for advice and recommendations and

6 referrals, so I will talk with patients on a daily basis,

7 recommending surgery or I'll sometimes go in and assist in

8 their surgeries. Like I said, I'm going back to active

9 practice and looking forward to it.

10 Q And so do you -- you don't perform surgeries at this

11 point, do you?

12 A Every year in South America.

13 Q I'm sorry. That's right. What types of procedures do

14 you do in South America?

15 A Anything that comes through the door in a Third World

16 country, which most people here couldn't possibly

17 comprehend doing, much less doing a large volume. We're

18 able to complete hysterectomies, gallbladders, colon

19 surgery, hernia repairs in the two or three weeks that

20 we're down there. But we will turn out a very large volume

21 of surgeries simply because I'm -- I think the most I did

22 was about 25 cases in one day down there.

23 Q Has your medical license ever been restricted?

24 A I have received a reprimand I think based on 1993 to

25 '97 I had an office manager leave and take records. The

74
1 new office manager filled out my staff application the 2 minute she arrived in the door. It was submitted to the 3 hospital, and because there were discrepancies because of 4 the missing records I technically had an incorrect 5 application. That did not become a problem until five or 6 six years later when the hospital didn't like the fact that 7 I was retired on a medical disability. They wanted me to 8 be removed from the staff so they could recruit other 9 surgeons. So suddenly my dyslexia and failure to recognize 10 that there was an error in my 25-page application became a 11 serious problem to the hospital, and to prevent me from 12 returning to practice they filed a databank entry as a 13 matter of meanness. 14 Q I see. And you may have said this, but I think I 15 missed it. The 25-page application, what was that for? 16 A The staff application that you submit every year. 17 There was an error between the '92 and the '97 or '96 18 applications. 19 Q And that was your application to the hospital? 20 A Filled out by my office people. 21 Q I see. And when you retired on medical disability 22 what was the nature of that disability? 23 A I had two heart attacks consecutively, and actually 24 I've recovered quite well. 25 Q Do you have any training in the induction of general

75

1 anesthesia?

2 A I don't know that that has anything to do with this

3 because the induction of general anesthesia is not what

4 we're doing when we're doing an execution.

5

THE COURT: The question, Doctor, is do you have

6 training?

7 A I do lots of anesthesia. Because I have three or four

8 anesthesiologists in my family, I'm required to assist or

9 do the induction to help them. Yes, I have induced the

10 anesthesia for them because it's a -- family.

11 Q (By Ms. Anders) So you have assisted anesthesia --

12 A I have induced anesthesia many times, either in the

13 course of endoscopies, in the course of surgeries, starting

14 an operation or induction before the anesthesiologist gets

15 there. I'm quite capable of doing that. It's not a matter

16 of training. It's a matter of doing it.

17 Q And have you for the purposes of surgery, say

18 abdominal surgery, have you ever induced anesthesia

19 yourself without the aid of any anesthesiologist?

20 A Yes, because with a gunshot wound, a car wreck arrives

21 in the emergency room, I'm the first one there. I will

22 have that patient asleep on a respirator before the rest of

23 the surgery crew arrives. So, yes, I have induced the

24 anesthesia. They simply follow up and catch up with where

25 I am at the point. Any surgeon can do that. And should.

76

1 Q That would be anesthesia for the purposes of surgery

2 and there would be no further anesthesia given?

3 A The purpose of saving a life. The continuation of the

4 anesthesia is done by the anesthesiologist. I must get

5 that person breathing which means inducing an anesthetic,

6 get them on a respirator to keep them alive until the

7 anesthesiologist gets there. That requires an anesthetic

8 induction. And I may even transfer them to the operating

9 room. I do not turn on the gas, because I don't want that

10 on until the anesthesiologist is there, but I will maintain

11 sedation and pain medication until the anesthesiologist

12 gets there. Then I can proceed with the surgery. I have

13 done it many times as a trauma surgeon.

14 Q And what year did you graduate from medical school?

15 A In the '60s.

16

MR. PRITCHETT: Object on the ground of

17 identifying the year would be identifying --

18

THE COURT: He said in the '60s, Mr. Pritchett.

19

MR. PRITCHETT: Thank you.

20 Q (By Ms. Anders) I just ask for the record where did

21 you go to medical school?

22 A Midwest.

23 Q As part of your medical training or otherwise, have

24 you gone through different scenarios that can occur or

25 problems that can arise when inducing general anesthesia?

77
1 A Yes. We are recertified and retrained in ATLS which 2 requires -- ATLS training, which is trauma life support, 3 requires updating training on central lines, peripheral 4 lines, intubation, induction, as a part of ambulance 5 drivers, emergency room nurses, ER doctors and trauma 6 surgeons. 7 Q So just hypothetically, if you were attempting to 8 insert a femoral catheter on anyone and they moved and you
9 ended up lacerating the femoral artery, what would you do 10 about that? 11 A It would never happen. 12 Q Well, hypothetically speaking, if it did happen? 13 A Since I'm only using a 22-gauge needle for the initial 14 insertion, this is like a small wire with a tiny hole, any 15 laceration of anything could be controlled with 30 seconds 16 of pressure and then proceed to try again. 17 Q I see. So what if you lacerated the femoral artery 18 and a hematoma developed? 19 A You cannot lacerate it with a 22-gauge needle. It's 20 two small. It's like a stick pin. It's no bigger than a 21 safety pin needle and that can't lacerate. 22 Q Well, just assuming hypothetically using a larger 23 needle or whatever -24 A Cellular does not use a larger needle. It only uses a 25 small needle to start the procedure. That's why we use

78

1 that needle.

2 Q And just assuming for a second that a hematoma

3 developed, what would you do about that?

4 A Reach over on the tray, take the knife that's provided

5 with the tray, open it and vent it and it would be

6 controlled. Actually under this setting, the hematoma

7 would actually stop bleeding better than actually -- the

8 medical treatment would be to drain it, but in this setting

9 the hematoma is actually useful and it will stop the

10 bleeding in a matter of seconds by itself.

11

So there's a medical reason why you drain a

12 hematoma, but the reason in this situation was the hematoma

13 would actually stop the bleeding. But we have never and

14 could not possibly see a hematoma in this setting because

15 of the small needles used.

16 Q So when you say that the hematoma would stop the

17 bleeding, I don't really follow that.

18 A As it bleeds into the space it increases the pressure

19 around the vessel. The pressure of the hematoma is going

20 to stop the bleeding no matter where the bleeding is.

21 Q So the bleeding would stop on its own?

22 A It would stop on its own.

23 Q If that happened while you were trying to get the

24 catheter in for an execution, how would you then get the

25 catheter in?

79
1 A He's got two legs. 2 Q So you'd go to the other leg? 3 A Yes. And two vessels in the neck that I can use as 4 back-up. I have never failed. The only instance that 5 failed was an IV drug user who had been injecting his 6 legs. I made two attempts on the leg and saw that we were 7 dealing with a completely clotted vessel so I immediately 8 went to the neck. I only have about a five-minute window 9 from the time the inmate arrives where I have to make a 10 judgment decision to get a sufficient IV in. So if I can't 11 get it in the femoral in 30 seconds, I will then turn my 12 attention to either the subclavian or internal jugular and 13 quickly insert it in another appropriate vessel. 14 Q So you have about five minutes to complete the 15 procedure? 16 A Five to ten minutes. That's all I need. 17 Q I see. And you have always completed it within that 18 time? 19 A It takes two minutes. 20 Q Okay. And has femoral access always been the first 21 choice method of obtaining venous access for an execution? 22 A It's my preferred method because it avoids all the 23 complication with the subclavian. In the rare event that 24 someone would perforate through the vessel in a subclavian 25 you would actually hit the lung with that small initial

80
1 needle. That could cause a pneumothorax after about four 2 or five hours. Plus inmates can and will manipulate their 3 shoulders which could affect IV infusion. Or could 4 possibly grab or turn their head, dislodge the catheter. 5 In a femoral vessel, it was chosen simply because it's the 6 safest way to put it in. It cannot be dislodged. It 7 cannot be manipulated by the inmate. 8 Q So they can't move their legs or anything like that? 9 A Absolutely not. They are completely restrained with 10 over-the-knee, pelvis, shoulder straps, and full arm and 11 ankle restraints. They could move their head because we 12 allow them to look at their family, and they could turn 13 their head and literally bite the bandage off of their arm, 14 which I'm sure one might try to do some day, but with it in 15 the leg that isn't going to happen. 16 Q So do you know if femoral access has always been used 17 by the DOC since they started lethal injection? 18 A Since I was involved with the lethal injection and 19 because of the serious problems they had on that prolonged 20 execution, I have recommended and stuck by the femoral line 21 which is foolproof. 22 Q So after -- so you came in after that problematic 23 execution? 24 A Yes. 25 Q And you recommended femoral access?

81
1 A Yes. They wanted me to do a cut-down because they 2 thought that was the way to solve the problem. I informed 3 them that I probably could not find a cut-down tray in the 4 prison system anywhere or in the state of Missouri. It was 5 ancient. 6 Q I see. So you mentioned the cut-down. If you tried 7 within your five or ten minute window to -8 A It takes 30 minutes to do a cut-down. 9 Q Is it something that you might do if you had trouble? 10 A I haven't had to do one in 30 years. 11 Q Would you consider doing one? 12 A If I lived another 30 years I might. 13 Q If you had trouble with both subclavian access and 14 jugular access and femoral access, would you -15 A That can't happen. 16 Q Why not? 17 A Just -- God made it that way. You cannot clot all of 18 those vessels off and survive. 19 Q So I think you said that the institution of femoral 20 access, was that based on your recommendation? 21 A Yes. 22 Q And was that something that had to be approved by 23 someone, or did you just decide to do it? 24 A No. They wanted a foolproof solution to their problem 25 and they did not want to have to explain to the public why

82

1 things did not go well, and I said this will solve your

2 problem forever. And they were quite pleased that I did

3 exactly what I said I would do, and it did exactly what it

4 was supposed to do.

5 Q So when you suggested femoral access, do you know who

6 made the ultimate decision on that to approve it?

7 A I told them that's what was necessary as opposed to a

8 cut-down and this could be done quickly, safely, easily,

9 and they were in complete agreement, in fact relieved, that

10 they did not have to do a surgical procedure.

11

In the event that the central line is -- femoral

12 line is inserted and the execution could be cancelled,

13 which is almost impossible, I can simply go in and remove

14 that femoral line and hold pressure for 30 seconds and

15 there's no damage done. With a cut-down it requires

16 sutures and suturing a catheter. Removing the cut-down is

17 a surgical procedure also.

18 Q I see. So you would rather not do a cut-down?

19 A It's totally unnecessary.

20 Q So was it the Director of the DOC who approved the

21 femoral access?

22 A I don't even remember who the director was at that

23 time. I only communicate directly with John Doe 4 or 5 and

24 he passed the information on to the Director.

25 Q And then for the first execution that you participated

83
1 in, you used the femoral catheter? 2 A A femoral catheter, yes. 3 Q Did someone communicate to you that that would be 4 acceptable? Did someone tell you that's what you would be 5 allowed to do? 6 A That's what I told them I was going to do because they 7 had to order the special equipment to do it. 8 Q I see. So you told them that's what you were going to 9 do and -10 A Yes. 11 Q And they ordered the -12 A They ordered it. 13 Q And in making your recommendation, did you consider 14 the risks and benefits of a femoral catheterization? 15 A Yes. 16 Q And what risks and benefits did you consider? 17 A No risk. All benefit. 18 Q And what are the benefits? 19 A All benefits. There's no way it can fail. And no 20 risk to the inmate. 21 Q So there's no risk of complication? 22 A Really, no. It's not put in until all appeals are 23 satisfied. There's no chance there's a secondary appeal 24 going to come. We have never, and don't even anticipate 25 the situation would occur that once it's inserted that an

84
1 appeal will somehow magically appear. So we don't really 2 start -- and that's the advantage we have. It can be done 3 quickly, but it can also be removed quickly. And that's 4 what I communicated to the Director, that it was much 5 easier than doing another surgical procedure to remove a 6 surgical cut-down, and would allow rapid infusion of the 7 drugs by nonmedical people. 8 Q I see. So the primary benefit of femoral is that it 9 allows rapid infusion? 10 A Predictable infusion. 11 Q I see. And is your primary priority in performing 12 executions the timing issue? 13 A It's as much as the weight, mental attitude, and in 14 the rare instance, sex, total body fat, age. Those are all 15 factors that affect the reaction to the drug, the doses 16 used. These are all things that, while they have little 17 impact, you can't ignore them. 18 Q All right. 19 A States where no doctors are involved, they ignore all 20 of those variables and simply inject a standard amount by a 21 janitor I guess is what one fellow is. 22 Q Right. And you mentioned several times that it's 23 important that the injection procedure be quick. 24 A Yes. All drugs are time-related. I could give each 25 of those drugs over a prolonged period of time on anyone in

85
1 this room with absolutely no effect if you give it slow 2 enough or through a route where it's metabolized. Each of 3 those drugs is metabolized theoretically almost as fast as 4 you give it if you gave it slow enough. None of these are 5 lethal drugs. They are simply a dose of a drug that if not 6 reversed has consequences. But the drug itself is the same 7 drugs that are on the shelf in any pharmacy. At the time 8 they were used, any pharmacy and any hospital had all of 9 these drugs available and that's why they were chosen. 10 Every doctor was comfortable with their use. They were 11 quite aware what the drug was and what to expect. 12 Q So let me just go back to the risks and benefits of 13 femoral catheterization. You said the benefits are that 14 it's not very risky, is that correct? 15 A It's virtually risk-free. It's not used in clinical 16 practice because the anesthesiologist would prefer to have 17 the IV up in the neck, head and neck area where they have 18 control of it. They can change it. They can enlarge it by 19 special techniques. They can double the size of it if they 20 want to. And if it's -- in my primary concern, if I would 21 ever use it, would be in the trauma situation where I'm 22 operating for abdominal injuries. If I have an abdominal 23 injury, I do not want the catheter on the other side of my 24 injury because I may be dumping my blood and fluid into the 25 abdomen rather than into the patient. So it makes no sense

86
1 to use it in clinical practice. There's very good reasons 2 why I don't use it anymore in practice. Only in an 3 emergency. And then I would simply switch to a neck method 4 for the benefit of the anesthesiologist. 5 Q I see. So you said there are reasons that you don't 6 use the femoral catheterization in your practice? 7 A That's correct. Because mostly I would be doing it 8 only in a trauma situation where the patient was legally 9 dead at that time and I would use two femorals and two neck 10 veins to dump five points of blood in in five minutes and 11 try to revive that patient sufficient to take them to the 12 operating room to stop the bleeding that is inside the 13 abdomen and the anesthesiologist wouldn't start until we 14 had neck veins going to where they could control the amount 15 of blood they gave. Because the femoral has a chance that 16 it's not going in the patient. It's actually going through 17 the ruptured liver or the ruptured spleen. 18 Q I see. And is that a problem generally? 19 A It doesn't help the patient. 20 Q Is that a problem in an execution situation? 21 A No, because they have not been in a car wreck or shot 22 or stabbed. 23 Q And if a complication occurred using femoral access 24 for an execution, would you consider changing back to 25 peripheral access?

87
1 A No. 2 Q Why not? 3 A It isn't reliable or predictable or safe. 4 Q So by predictable, what do you mean? 5 A We know that we're going to have -- the inmate is 6 unconscious in 15 seconds. He's paralyzed a minute and a 7 half after that. His heart will stop beating three to four 8 minutes after the injection starts. You cannot guarantee 9 that with a peripheral IV. 10 Q So by predictable, you know exactly how long it should 11 take? 12 A Yes. And you don't know that if you can't give the 13 drug rapidly. 14 Q And by reliable, what do you mean? 15 A We know it's going in there and it can't leak around 16 the needle. When you use a peripheral IV, you're using a 17 two-inch needle. You're not using a central line. So if 18 you force it, it will leak and leak into the hand. In the 19 case of the individual where the vein in the thumb was 20 used, I'm sure most of the medication went into his hand 21 rather than into his veins. With a central line that 22 doesn't happen. 23 Q I see. And when you said that the femoral procedure 24 is safe, what did you mean? 25 A No complications. I can't puncture a lung. Can't hit

88

1 the wrong thing. The vein is protected by muscle on one

2 side and the artery, which I can feel with my finger. So

3 if I could feel the artery with my finger and my finger is

4 on top of the artery, I'm not going to stick my finger.

5 And the nerve is on the other side of all of this, so nerve

6 and artery lacerations are impossible.

7 Q I see.

8

MS. ANDERS: And, Your Honor, I'd just like to

9 ask how much time I have left at this point.

10

THE COURT: We started at 1 o'clock and we'll

11 finish at 2 o'clock.

12

MS. ANDERS: I'm sorry. Finishing at 3 o'clock?

13

THE COURT: Started at 1 o'clock and finishing at

14 3 o'clock. You're correct. I'm sorry.

15

MS. ANDERS: I'd just like you to know that I'd

16 like more time than that.

17

THE COURT: I think you've asked for more time

18 and I told you already and I see no reason to change that

19 at this time, and I won't change it.

20

MS. ANDERS: I understand, Your Honor.

21 Q (By Ms. Anders) Would you be aware of it if a

22 complication of femoral access occurred during an

23 execution?

24 A It couldn't occur once I put that line in using this

25 method. We do these a hundred times a day in every

89
1 hospital across the nation and we walk out of that room 2 with the confidence that that is not going to fail once 3 that's in. That's why we use this method in every hospital 4 every day. It can't fail. The patient's life depends on 5 this thing functioning perfectly once it's inserted. 6 Q So are there any complications that could make 7 themselves -- that could become visible after you have left 8 the execution chamber? 9 A No. Complications can occur months and weeks later 10 due to long-standing problem, but the complications that 11 you are referring to that occur with the insertion, these 12 only occur on a person that is doing his first five 13 insertions. After someone has done ten of anything, he 14 will never have another complication for the rest of his 15 life. 16 Q I see. And do you examine an inmate after death? 17 A I disconnect the line and clamp it because it's a 18 Heparinized system. If it was not clamped the medical 19 examiner could not stop this thing from leaking. But we 20 are required to leave the catheter in place and simply 21 disconnect the hose and the cardiac monitors. 22 Q So do you examine the catheter site after -23 A I can see it because I have to remove the sheet to 24 remove the IV tubing. 25 Q I see. I'm just going to introduce an exhibit.

90

1

You have just been given a photo which was part

2 of the documents that the State produced to us from the

3 Johnston execution.

4 A Yes.

5 Q I think that was 6/30/05.

6 A Yes, I think so.

7 Q Did you perform the femoral catheterization?

8 A Yes.

9 Q And do you see a hematoma in that picture?

10 A No.

11 Q Could you explain why you say that?

12 A I don't see one.

13 Q If I told you that three other physicians have looked

14 at these photos and thought they saw a hematoma there,

15 would that cause you to reconsider?

16 A No. They are just making your case. There's no

17 hematoma there.

18 Q So you have never had a person move or anything like

19 this while you're putting --

20 A No. They're sedated. They are very comfortable,

21 calm, relaxed. If they're agitated, upset, I will ask them

22 and if they want a sedative I will provide that for them,

23 so they are very calm. They don't feel this. They are

24 very comfortable.

25 Q I see. And have you had any training in the

91
1 pharmacology of thiopental? 2 A No. 3 Q What is the pH of thiopental? 4 A I have no idea. 5 Q Is it -- do you know whether it's acidic or basic? 6 A I know it's caustic. If that's basic, but I know it 7 will necrose if you infiltrate it. 8 Q Can you explain to me how thiopental distributes 9 through the body? 10 A By the bloodstream. It's given in the blood and it's 11 distributed immediately to all parts of the body. 12 Q So is there some progression? Does it go somewhere 13 first or -14 A No, it goes everywhere immediately. That's why we use 15 the central line. All the drugs we use are distributed to 16 all parts of the body within five seconds. When you use a 17 peripheral IV it can be five to 15 seconds after you give 18 it before there is any effect. With a central line the 19 effect is immediate in every part of the body, so a drop of 20 blood that's in the heart is in your toe in two heart 21 beats. 22 Q I see. So the same thing is true with thiopental? 23 A Yes. 24 Q And what dose of thiopental would you consider too low 25 for execution purposes?

92
1 A 500 milligrams reliably, but if someone said the court 2 has said now you have to use 500 milligrams, I would say 3 one out of 20 may not be fully asleep when the other dose 4 is given and I would caution them that some observer might 5 say I don't agree, like seeing this hematoma which isn't 6 here, somebody would say, well, if you're only using 500 7 I saw his eyes blink, therefore he was not unconscious. So 8 if we're saying we're giving two grams, there isn't a 9 physician anywhere that would say that's an improper dose. 10 Q I see. And have you -- I think you mentioned talking 11 with people from other states about the execution 12 procedure. 13 A Yes. 14 Q Have you consulted with any other jurisdictions 15 recently? 16 A Yes, California. 17 Q And for what purpose? 18 A They had a big brew-ha about a canceled execution, so 19 I was talking with the warden at that time. 20 Q I see. And what was the substance of that 21 conversation? 22 A We don't want this to happen again, so he was asking 23 my advice. 24 Q Were you asking any advice from him? 25 A No.

93

1 Q And what --

2 A He didn't know anybody else to talk to that was fluent

3 in executions.

4 Q And what advice did you give him?

5 A I -- I volunteered my service to be available if he

6 needed additional help on-site. If he preferred, I would

7 recommend what he do differently.

8 Q And have you consulted with any other doctors or

9 anything like that?

10 A No. None -- there's no other doctor knows anything

11 about this. If I would ask another anesthesiologist, which

12 I have, they are more interested in what the effects are

13 because they have never done anything like this and they

14 don't know what -- they really don't know what the effects

15 are.

16 Q I see. Have you talked with other states besides

17 California?

18 A Yes.

19 Q And what states?

20 A Lots.

21

THE COURT: Ms. Anders, I'm going to give you

22 five minutes to wrap this up.

23

MS. ANDERS: Okay. Thank you, Your Honor.

24 Q (By Ms. Anders) Could you give me some examples of

25 other states you have talked to?

94
1 A Connecticut, Maine, Court of Military Justice in 2 Leavenworth, Federal Penitentiary in Terre Haute, and 3 Florida and Texas. 4 Q And was that for the purpose of your giving them 5 advice? 6 A 50/50. One time I was comparing notes and advising 7 them, but most of the time they were -- the Federal 8 Penitentiary in Leavenworth basically was asking we don't 9 know anything about this, please tell us what we need to 10 obtain, what we have to do, and I had to start them out 11 from ground zero. 12 Q I see. And the times when there's been an exchange of 13 views, what have the substance of those conversations been? 14 A The assistant warden also provides them with our 15 written protocols of who goes where, when, what time you 16 bring in witnesses, and I had the drugs and the dosages and 17 my recommendation and we forwarded that to them or discuss 18 it with them over the telephone once they receive the 19 printed material. 20 Q I see. And just going back to injection speed for a 21 second, and I know I only have a couple minutes, was it 22 your recommendation to inject the drugs as quickly as 23 possible? 24 A Yes. 25 Q And why is that?

95
1 A There's no advantage to slow injection. 2 Q And why did you think that a fast injection would be 3 good? 4 A They don't do any good in the solution. You want a 5 rapid onset of the drug, and these drugs are rapid onset 6 drugs. If you give them slowly they just don't work. And 7 you want -- the timing is more critical than most 8 nonmedical people realize. The timing is really essential, 9 and if you wait too long after the pentothal, the heart and 10 blood pressure may eventually drop so the pancuronium 11 doesn't circulate. And you really require a strong heart 12 beat to circulate the pancuronium to the entire body. And 13 it's for the same reason that the potassium needs to be 14 circulated. It doesn't need to be sitting in a nonflowing 15 vessel. And the only way you can guarantee that is by 16 rapid injection. 17 Q Did you also have the understanding that the DOC 18 wanted rapid executions? 19 A They don't want to wait 25 minutes with witnesses 20 standing around wondering what happened. 21 Q So 25 minutes would be too long? 22 A Five minutes is too long. There's no reason why it 23 should take more than five minutes to perform three drug 24 injections and that they should have the effect on the 25 inmate. There's no point in prolonging this. That's cruel

96

1 and unusual.

2 Q And there's no medical reason to give the drugs any

3 slower?

4 A No. Only the initial dose of pentothal, which could

5 cause excitement or seizures, and once that plateau has

6 been reached, it's safe to give all three drugs as rapidly

7 as possible.

8

MS. ANDERS: Your Honor, that would conclude a

9 line of questioning, but I would note that I have other

10 lines of questioning that I would raise if allowed to do

11 so.

12

THE COURT: Any follow-up, Mr. Pritchett?

13

MR. PRITCHETT: A little bit, Your Honor.

14 CROSS-EXAMINATION BY MR. PRITCHETT:

15 Q Doctor, you discussed your understanding as to your

16 authority to conduct your involvement in executions up

17 until the present time. What is your current understanding

18 of who has the authority to determine whether changes may

19 be made in the method of execution?

20 A Yes, the Director has the ultimate authority on all of

21 these executions and after going through this process he's

22 going to be better informed what's going on. He may not

23 understand, so it's also my job to explain to him why these

24 changes are required or necessary or help keep him informed

25 of what we're doing and what's going on and why.

97
1 Q If you're informed that the plan is for executions in 2 the future to have five grams of the sodium pentothal or 3 the thiopental, would you deviate from that five grams 4 without informing the Director? 5 A If we could -- I'd really be surprised if we would be 6 able to get it, but if it was -- after we discussed this 7 and said I want five grams given and we could not obtain it 8 or give it, yes, he would be informed or I would inform him 9 that I can give that safely but I have to use two syringes, 10 is that acceptable. And we would discuss that. 11 Q And what is your understanding as to who would be able 12 to make the final call on that decision? 13 A The Director would, but I would have to explain the 14 timing and what it would appear or how it would affect the 15 other drugs, and he's very receptive to my education. 16 Q So it would be the Doctor's call based on your advice? 17 A Yes. The Director's call. 18 Q If you were to change any of the drugs at this point, 19 would that be something that you now would expect to inform
20 the Director of? 21 A If I had changed any drugs at any time, if I changed 22 the drug, absolutely I would have informed the Director. 23 Q Let me back up. If you had changed the dosages -- if 24 you change the dose of any drug in the future, is that 25 something you understand the Director wants to know?

98
1 A He wants to know that now. And in the past my 2 understanding was as long as the -- it was still sufficient 3 doses, I thought he did not need to be informed, but now he 4 will be informed of changes as they occur. 5 Q And if there is ever a need to go from a femoral 6 vein access to some other sort of access, is it your 7 understanding that that's something the Director wants to
8 be informed of? 9 A I will so inform him, but I am -- I'm gowned, gloved, 10 prepared to do it, so I will simply switch from one to the 11 other and then I will inform him after I have done it 12 probably, simply because of how we are dealing with this, 13 unless he tells me I want to know before you switch, then I 14 will of course do that. But it's my recommendation that I 15 will notify him if I have to make a change. 16 Q So if the Director indicates he would like to know 17 and make the final decision if you have to change from a 18 femoral access to some other access, is that what you would 19 do? 20 A He's the boss. 21 Q You indicated on one execution you had to go from a 22 femoral vein access because of intravenous drug use through 23 the leg to neck access, and you also discussed subclavian 24 access. 25 A Yes.

99
1 Q Are those common means of obtaining access for drugs 2 in a surgical setting? 3 A Yes, it's preferred by the anesthesiologist, and they 4 use the neck and subclavian interchangeably because the 5 insertion point is only an inch apart and they wind up in 6 exactly the same location, so neck access and subclavian 7 access means internal jugular access. 8 Q So subclavian or neck is more standard in surgical 9 procedural -10 A Absolutely, for the reasons I stated, not only with 11 trauma, but then the anesthesiologist has complete 12 control. The anesthesiologist can take this catheter out 13 and by inserting a cellular wire back in, she can exchange 14 that for one, two, or three other catheters in a crisis 15 situation, but she couldn't do that if it was under the 16 drapes in the leg. So the anesthesiologist has the 17 capability of quickly switching to a larger or additional 18 catheters using this in the neck, or the triple lumen can 19 use the extra lumens. But they just won't start a case 20 unless they have a neck access that they can actually put 21 their hands on so they can see if it's not functioning 22 properly. 23 Q If it were necessary for you to recommend access other 24 than femoral access through the neck or through the 25 subclavian entry -- and by subclavian, is that near the

100
1 clavicle? 2 A Subclavian is under the clavicle, yes. 3 Q If it became necessary for you to make a 4 recommendation that we go from femoral -- the execution 5 site go from femoral access to one of those other two 6 access, are those types of venous access that you have 7 experience in performing? 8 A Yes, but it requires significant modification of the 9 facility. In other words, the bed must have the capability 10 of being tilted with the feet up so these veins would 11 dilate sufficiently to guarantee safety. Plus it would be 12 prudent to have chest tube capability available. I have 13 rudimentary chest tube capability on this tray as I have 14 selected. But if you said I would always do subclavian, I 15 would have chest tube available on every occasion. 16 Q So if in a rare instance you needed to go subclavian 17 or neck for access, would you be able to do that, as you 18 understand, in the current set-up of the prison where 19 executions occur? 20 A This tray is set up to be used interchangeably in 21 either place, and that's why we selected this particular 22 tray. It's actually designed as a subclavian catheter 23 which can be used as a femoral catheter, but it's just 24 called a central line triple lumen. 25 Q What's the standard dose in a surgical setting for

101
1 sodium pentothal? 2 A Usually those ampules are 500 milligrams or less. 3 When an anesthetic is being induced, the anesthesiologist, 4 if they were using pentothal, would give a dose to the 5 point where they would see the facial reaction indicating 6 the pentothal had taken effect. They immediately stop 7 giving, whether they have given 100, 200, 300 milligrams, 8 immediately stop giving the pentothal and then immediately 9 paralyze and intubate the patient and start the anesthetic, 10 which is the gas, going through the inhalation tubing in 11 the tracheal tube. So the actual anesthetic agent goes 12 through the tracheal tube and they must reach a sufficient 13 level of gas. So if you start the operation five or ten 14 minutes after the gas is started, the individual will move 15 because they do not have sufficient anesthesia for the 16 procedure. So it takes about ten to 15 minutes for a gas 17 to render them safely unconscious, stay unconscious, and 18 also relieve all pain. 19 Q Of course we don't use gas in the execution process. 20 You have indicated that 2 or 2.5 grams in your judgment is 21 enough to permit the administration of the remaining drugs 22 in a painless manner. I was kind of confused in the 23 testimony myself. I'd just like to ask the question 24 directly. If 2 to 2.5 grams are what's given, is that 25 sufficient in your judgment, to a reasonable degree of

102

1 medical certainty, to keep the inmate unconscious and

2 unable to feel pain for the time period it would take for

3 the execution to be completed?

4 A The two-gram dose would ensure that he would stay

5 unconscious for at least 15 minutes in 99 percent of the

6 population. The only qualifier would be body fat, a

7 certain percentage of body fat would absorb the drug and

8 not allow it to circulate. It's actually effective only in

9 the brain, but you have to have it everywhere in the body

10 to keep that level in the brain available.

11 Q And an execution does not take 15 minutes.

12 A No. We're done in three to five minutes.

13 Q On the photograph you were shown, I think it's

14 identified as Exhibit No. 5 --

15 A Yes.

16 Q -- you said you didn't see a hematoma.

17 A What they're seeing is where I --

18

THE COURT: Doctor, there isn't a question in

19 front of you yet. Let's get the question.

20 Q (By Mr. Pritchett) What would you see or what would

21 you expect to see if there was a hematoma? How can you say

22 there's not one here?

23 A What they're seeing is the site where I injected my

24 local anesthesia. It causes a little blue mark. A

25 hematoma would be the size of a tennis ball.

103
1 Q So you don't see any -- and would that have a 2 distinctive color to it, the tennis ball? 3 A It would not necessarily have a color. It takes hours 4 for the color to develop, and since we're doing a deep 5 injection inside other tissue you would see the tennis ball 6 and the color would not occur until the next day, but the 7 tennis ball would be obvious. And it would only occur if 8 the artery was punctured. You cannot get a hematoma from a 9 vein. All you see is where I injected the local. 10 Q What if any significance is there to the blue line 11 that you mentioned? 12 A That's where the local anesthesia was injected with a 13 25-gauge needle and that -- in some instances, I not only 14 feel for the femoral artery but I will also mark it with a 15 magic marker. I do not see the marker on this inmate. I 16 probably used my finger because he was probably thin. But 17 if it's a moderately obese individual I will use a magic 18 marker to exactly outline the landmarks so I'm sure I'll 19 miss the vital structures. 20 Q Assuming there were a hematoma in some case, what 21 effect, if any, would a hematoma have in the execution 22 process? 23 A It would have none on the execution because this 24 catheter end is 16 inches away from where I inserted it and 25 it's in a free-flowing vessel. We can confirm the free-

104

1 flowing vessel by aspirating any one of those three ports.

2 So if it was kinked, curled, knotted, subcutaneously

3 inserted, it would be immediately obvious that it was not

4 functioning properly.

5

MR. PRITCHETT: That's all I have, Judge. Thank

6 you.

7

MS. ANDERS: Just a couple questions, Judge.

8 REDIRECT EXAMINATION BY MS. ANDERS:

9 Q So, Doctor, is there a written procedure or regulation

10 somewhere that delineates your discretion as to what

11 changes you tell the Director of Corrections about?

12 A Not yet, but I bet there will be.

13 Q So if you had to -- if you had to make a change during

14 an execution, say in the heat of the moment, such as you

15 mentioned going to neck access, is that something that you

16 would tell the Corrections Director about after the fact?

17 A I would tell him after I was done, because once I

18 start inserting this line I cannot stop. I have all the

19 sterile equipment prepped and ready to go, so I simply take

20 the needle and move to the neck area and insert it. Then I

21 would so inform the Director. In fact, in the instance

22 where I did change to a subclavian in the drug addict, I

23 immediately informed the Director there was a different

24 line and the bandage would be on the inmate's shoulder and

25 visible to the gallery, because he was going to immediately

105
1 be confronted by gallery, as I call them witnesses, and say 2 what was that patch on his shoulder thing, I didn't see 3 that before, or what was that, and he would immediately 4 know that because of his addiction problem we had to use a 5 different type of IV. 6 Q I see. So the one time that you went to neck access, 7 that was a subclavian access? 8 A Yes. And immediately informed the Director when I did 9 it. 10 Q I see. And does the gurney that's currently in the 11 execution room have the capability of tilting? 12 A I don't think so, but again we've had two or three 13 different gurneys. If it's a hospital bed, it has a switch 14 under the springs that allows me to tilt, or I simply, in 15 this case where I put in a subclavian, two of the stronger 16 guards simply lifted the bed twelve inches in the air and 17 held it while I inserted the needle which took about five, 18 ten seconds. 19 Q And what kind of lines of communication do you have, 20 if any, with the Director during an execution? 21 A There is a radio that's by all senior guards. It's in 22 the room with me. And there's two or three telephones. 23 One is only a direct access to the Director's desk. 24 Q And do you use that ever during an execution?
25 A I have never used it. I simply inform someone else

106
1 what I was doing, or did on the case of the subclavian, but 2 I have never had a circumstance arise that I have had to 3 talk to him directly. 4 Q What type of circumstance do you think would require 5 you to talk to him directly? 6 A Well, we have gone through so many with so few 7 problems, and a lot of it has to do with the sedation that 8 we administer before we start the IV, that I can't 9 anticipate problems. That could only occur when the inmate 10 is being brought into the room by the six guards, and if 11 he's foolish enough to attempt something with those six 12 guards, he wouldn't -- once those six guards have him 13 strapped down, he is immobilized, arms, legs, wrists, 14 ankles, pelvis, knees and shoulders, and by that time I'm 15 in and he's aware of who I am, what I'm doing and I'm 16 asking him if he's comfortable, if he would like more 17 sedation, that I was going to inject a local, it was going 18 to sting just slightly and then I was going to insert the 19 line and he would not feel anything, and that's about the 20 extent of our conversation, and he usually thanks me for 21 not hurting him. 22 Q Do you know if an anesthesiologist would opt for a 23 central line as a method of delivering anesthesia if no 24 IV were already in? 25 A All anesthesiologists prefer a central line where the

107
1 operation will take over an hour. 2 Q Do you think they would use it as their first choice 3 method of obtaining venous access? 4 A Only if it was over an hour, if they anticipated a 5 blood transfusion. For a hernia repair, for routine 6 gallbladders, with experienced surgeons, they will not. 7 They will only start a peripheral IV with a flexible 8 catheter. Only when you're doing a vascular procedure, a 9 colon resection, stomach, total hip, total knee, will they 10 require -- hysterectomy, will they require a central line 11 or prefer a central line. Again, it's based on their 12 confidence in their surgeon. There are certain surgeons 13 that want a central line on every patient. Other surgeons, 14 they know they can get by with a peripheral IV. So again 15 with this it's their judgment coming into play. 16 Q And if an inmate were obese, I think you mentioned 17 that you might need to use more thiopental. If you were 18 faced with an obese inmate, would you adjust the dose? 19 A If he weighed over 300 pounds, but again if he was six 20 foot five and lifted weights every day, he would not be 21 considered obese. So it has more to do with body fat 22 rather than total weight. But I just use the 300 pounds, 23 that's what anesthesia uses as a guideline to reconsider if 24 they will require additional. In the clinical practice 25 they simply give pentothal until they see the reaction they

108

1 want. In our situation, we have to be prepared to give an

2 overdose and we have to calculate what that overdose will

3 be.

4 Q I see. And so if you were confronted with an inmate

5 who was obese, how much would you want to give?

6 A A minimum of three grams is all.

7 Q I see. And would you have the capability of mixing

8 three grams?

9 A I would then use two syringes of the current solution

10 and inform them it was going to take two minutes for the

11 first injection and then proceed with the rest of the

12 injections to completely assure that there would be no

13 problem.

14 Q I see. But I think you testified before that you

15 prefer not to change the number of syringes.

16 A I do.

17 Q Okay.

18

MS. ANDERS: Thank you. That's all I have,

19 Judge.

20

MR. PRITCHETT: A couple more, Judge.

21 RECROSS-EXAMINATION BY MR. PRITCHETT:

22 Q Doctor, if the Director issued an order, either orally

23 or in writing, that if you were to change the access from

24 femoral access to some other access, and you discovered you

25 needed to do it, would you comply with that directive from

109

1 the Director of the Department of Corrections?

2 A Yes. This central line can actually be inserted in an

3 arm and then simply threaded up the arm into a central

4 line, which is another possibility we have discussed, if

5 for some reason -- but when we present the arguments back

6 and forth of central line vs. peripheral line or long

7 peripheral lines, this is still the most safest,

8 comfortable, reliable way of assuring that we're going to

9 effectively administer the drugs in proper sequence and

10 expect a very predictable result.

11

MR. PRITCHETT: Thank you, Doctor.

12

THE COURT: Okay. On this protective order, as I

13 understand your request, it's any information that doesn't

14 have a direct bearing on the identity of John Doe 1 ought

15 to be subject to the public purview or to your inquiry or

16 whatever you want to do with it; is that correct?

17

MS. ANDERS: We would certainly not use it for

18 any purpose other than this litigation, but I think many

19 subjects that we covered --

20

THE REPORTER: I just cannot hear you over there.

21

MS. ANDERS: Well, I was saying that plaintiff

22 and plaintiff's counsel would certainly not use any of this 23 deposition for any purpose besides this litigation, but 24 there have been many subjects that we have covered in this 25 deposition that already are subject to public access

110

1 through the court's filing system because they have been

2 covered in the interrogatories. They're in interrogatory

3 responses that have been filed by the defendants.

4

THE COURT: Your objection to that?

5

MR. PRITCHETT: Judge, it's more logistical than

6 anything. If the whole deposition is subject to the

7 protective order we don't get into any disagreement among

8 the parties as to what's identifying information and what's

9 not. It's just a very bright line.

10

MS. ANDERS: I think --

11

THE COURT: I think the protective order

12 modification is fair and reasonable and so I will allow

13 it. If there is any concern about what is or what isn't

14 going into the category of the identity of the witness,

15 then I urge counsel to consult the court.

16

MS. ANDERS: Just to be clear, Judge, so the

17 whole deposition won't be subject to the protective order,

18 but information that could be used to identify John Doe 1

19 could be subject to --

20

THE COURT: I think the way you framed it in your

21 motion to the court adequately frames my response, which I

22 hope I have already addressed.

23

MS. ANDERS: All right. Thank you.

24

All right. We will allow you to exit so Dr. Doe

25 can leave, and we'll be gearing up for trial next Monday.

111

1

MS. ANDERS: Thank you very much for your time.

2

MR. PRITCHETT: Thank you, Judge.

3

4

* * * * * *

5

6

7

REPORTER'S CERTIFICATE

8

9

I, Donna M. Turner, Registered Merit Reporter,

10 hereby certify that I am a duly appointed, qualified, and

11 acting official court reporter for the Western District

12 of Missouri; that the foregoing pages contain a true and

13 correct transcript of the proceedings had in the

14 within-entitled cause on the date stated herein, and that

15 said transcript is a true transcription of my shorthand

16 notes taken therein.

17

18

19

_____________________________RMR

Registered Merit Reporter

20

21 DATE: ___________
22

23

24

25

 
 United States Court of Appeals

___________

FOR THE EIGHTH CIRCUIT

No. 06-1397 ___________

Michael Anthony Taylor,

*

*

Appellant,

*

*

v.

*

*

Larry Crawford, Director, MO Dept. *

of Corrections; James D. Purkett,

*

Superintendent, Eastern Reception *

Diagnostic & Correctional Center,

*

*

Appellees.

*

___________

No. 06-2914 ___________

Michael Anthony Taylor,

*

*

Appellee,

*

*

v.

*

*

Larry Crawford, Director, MO Dept. *

of Corrections; James D. Purkett,

*

Superintendent, Eastern Reception

*

Diagnostic & Correctional Center,

*

*

Appellants.

*

ORDER [PUBLISHED]

___________ ___________

Before RILEY, BEAM, and HANSEN, Circuit Judges. ___________
Taylor's 42 U.S.C. § 1983 claims challenging Missouri's lethal injection protocol are before the court on his notice of interlocutory appeal from the district court's January 31, 2006, order refusing to enjoin the execution of his state-court imposed death sentence. (Appeal number 06-1397).
On April 27, 2006, the court remanded the case to the district court for an additional merits hearing on Taylor's claims. Jurisdiction was retained.
The district court, after discovery and hearing, determined that Missouri's then existing protocol violated the Eighth Amendment, enjoined its use in Taylor's execution, stayed Taylor's death warrant, amended its earlier order to the contrary, and on June 26, 2006, certified its findings and conclusions to this court. The district court also concluded "that it [was] within its equitable powers to fashion a remedy" establishing an acceptable protocol for the use of lethal injunctions in the execution of death sentences imposed by Missouri courts, citing Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006), and Brown v. Beck, No. 5:06-CT-3018-H (E.D.N.C. April 7, 2006) (Doc. No. 32). It then did so.
As directed, although after the certification, Crawford filed in the district court a revised protocol for use in carrying out Taylor's death sentence. On July 24, 2006, Taylor filed objections to the new protocol and on that same day, Crawford filed a new notice of interlocutory appeal in response to the district court's June 26, 2006, order. The next day, the district court, noting its earlier certification and the recently filed notice of appeal, recognized a lack of jurisdiction. With this, the district court forwarded the revised protocol to this court. In the meantime, Taylor filed an unopposed motion to hold briefing in abeyance and his lawyer filed a motion for substitution of counsel and withdrawal. We now address each of these matters.
-2-

The district court was correct in noting that it retained no further jurisdiction in appeal number 06-1397 after its certification of findings and conclusions on June 26, 2006. And, though the matter was already before this court pursuant to Taylor's earlier notice of appeal, Crawford's new notice of appeal of July 24, 2006, although continuing to deal generally with Taylor's section 1983 claims, resulted in a new appeal. (Appeal number 06-2914).
While the court questions whether in the circumstances of this case the district court was "within its equitable powers" in directing Crawford to adopt a revised protocol for lethal injections in Missouri, it finds that it is not necessary to decide that issue now. The district court clearly did have authority to determine the constitutionality of the then existing execution procedures originally presented, to set forth in detail its reasons for such holding, and to enter its June 26, 2006, order, dealing with such subjects. The district court also had jurisdiction to grant Taylor the remedy of injunction or, in the alternative, to deny such relief, totally or conditionally. See, e.g., Morales, 415 F. Supp. 2d at 1046-47.
Since Crawford has now proposed the revised protocol for use in the execution of Taylor's death sentence, the court remands jurisdiction of this dispute to the district court for consideration of this newly propounded protocol and all other issues now framed by the parties' pleadings and notices of appeal. In the course of or after such consideration, any party is free to seek, or not, review of any appealable interlocutory decision or final decision the district court renders or has rendered at any stage of this continuing litigation.
The previously imposed briefing schedules in appeal number 06-1397 are vacated and the pending motions for withdrawal and substitution of counsel are also remanded to the jurisdiction of the district court for consideration and decision.
-3-

The appeals are remanded to the district court for further proceedings in accordance with this order.
August 9, 2006 Order Entered at the Direction of the Court Clerk, U.S. Court of Appeals, Eighth Circuit
-4-

 
 IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

MICHAEL ANTHONY TAYLOR, Plaintiff‐Appellant,
v. LARRY CAMPBELL, et al.,
Defendants‐Appellees.

) ) ) ) App. No. 06‐1397 ) ) Dist. No. 05‐4173‐WMJC ) ) )

APPLICATION FOR STAY OF EXECUTION COMES NOW the plaintiff‐appellee, Michael Anthony Taylor, by and through counsel, John William Simon, and moves the Court for its order granting a stay of execution pending its disposition on the merits of his appeal from the denial of relief in his action under 42 U.S.C. § 1983 concerning the Missouri lethal injection process, including a precursor operation analogous to a “cut‐down” and the participation of a physician in violation of the Hippocratic Oath and the AMA Code of Ethics. In support of this application, the plaintiff‐appellant states and alleges that he has not had an opportunity to litigate the substance his claims fully and fairly since the removal of the district judge who had been handling the case by regular assignment from its inception, and that the new district judge precluded him from presenting evidence from the only

witnesses qualified to give it. These omissions are directly or indirectly the fruit of the defendants’ and their privies’ manipulation of the judicial process to prevent anyone from receiving a hearing on the merits of claims relating to their form of lethal injection—as recently as apparent sewer service of a pleading before this very Court last night.
On June 3, 2006, actually before he had ascertained the specific means by which the State of Missouri intended to execute him, the petitioner filed an action under 42 U.S.C. § 1983, Taylor v. Caldwell, No. 05‐CV‐4173‐SOW, seeking to raise federal constitutional grievances concerning the chemicals, personnel, and other incidents of lethal injection. After the Missouri Supreme Court set an execution date in the previous leading case in this area, Johnston v. Campbell, he learned of a precursor operation variously referred to as “central line access” or “femoral vein access” and that the state used a licensed physician in the process in violation of the Hippocratic Oath and the AMA Code of Ethics. Richard D. Clay, another condemned person in the Missouri Department of Corrections, intervened in the action, represented by Elizabeth Unger Carlyle and Jennifer
‐ 2 ‐

Herndon. Plaintiffs filed an amended complaint setting forth their claims about the precursor operation and the physician participation.
On December 28, 2005, the United States District Court for the Western District of Missouri issued an order denying the defendant’s motion to dismiss for failure to state a claim, and holding that the case needed to go forward. The next business day, the undersigned counsel faxed a copy of this order to the Missouri Supreme Court with a cover letter advising it of the order. The second business day after counsel provided this notice, the Missouri Supreme Court set an execution date against Michael Taylor, the lead plaintiff in the federal action.
On January 19, 2006, the Hon. Scott O. Wright issued an order setting a hearing in the federal case for February 21, 2006, with the hearing to go over to February 22 if the Court needed a second day’s worth of evidence. Through Magistrate Judge William A. Knox, Judge Wright had the previous day informed counsel that he had tried to set the hearing before February 1, 2006, but that he could not do so in light of pending matters on its calendar. Without giving a reason or offering any intermediate course of action, counsel for the defendants indicated they would seek relief from Judge Wright’s order.
‐ 3 ‐

On January 20, 2006, the defendants filed an application to vacate Judge Wright’s preliminary injunction, to which I prepared a response. On January 27, 2006, counsel for Reginard Clemons, another condemned person in the Missouri Department of Corrections, filed a motion to intervene in the action. Mr. Clemons is represented by New York City law firm which would have provided substantial litigation firepower for the plaintiffs at the hearing on February 21, 2006.
On January 29, 2006, a panel of the United States Court of Appeals for the Eighth Circuit vacated Judge Wright’s order, directed the Chief Judge of the district court to reassign the case to another district judge, and directed the new district judge to conduct a hearing immediately and to render judgment by noon on the date the Missouri Supreme Court had set for the execution. It also stayed the execution through 11:59 p.m. on Friday, February 3, 2006.
In light of the panel’s mandating another snap hearing—as had occurred in the Donald Jones, Vernon Brown, and Timothy Johnston cases with which the undersigned was familiar—and the new district judge’s refusal to let counsel call the physician who participates in Missouri’s executions, counsel for Messrs. Clay and Clemmons, respectively,
‐ 4 ‐

dismissed their claims without prejudice and withdrew their motion to intervene.
This left the undersigned sole practitioner alone to litigate a snap hearing in a capital case involving several experts. Simply procuring their participation by phone took substantial time and effort. Counsel was not able to contact one of them, who had been out of town, until the morning of the second day (yesterday), and he could not be ready to testify until the next day, which the new district judge did not allow. As a result of these unusual and irregular demands, the undersigned was unable to do the kind of job on this capital case involving arcane scientific subjects that he would typically do on the least grave and sensitive matters in his practice.
Because he had to conduct a telephone hearing solo two days in a row, the undersigned counsel was unable to prepare a pleading in this Court to seek to have the very order requiring the hearing overturned, and had to suspend my activities in support of execution clemency, which the same court has authorized me to engage in under its appointment.
Defendants sought to have the Supreme Court vacate this Court’s panel’s stay in its entirety. That Court declined. After the district judge issued the order, rendered inevitable by the circumstances under which the
‐ 5 ‐

lawyers tasked to handle the hearing while the undersigned handled clemency advocacy, were removed by the technical knock‐out of December 29, 2006, the defendants filed a motion before this Court to vacate its three‐ day stay. The undersigned did not receive this motion by e‐mail until several minutes before this Court acted on it (the second time he called the Office of the Attorney General to request it, after learning from a call to this Court that it had been filed); he did not receive it by fax at the number in his letterhead (or any other fax number) until (according to the readout on his fax machine) 9:26 p.m., or “21:26,” i.e., only three minutes before this Court e‐mailed counsel its ruling on the motion.
Having received no response to the state’s motion (for the reason just specified), the panel cut its stay back to 5:00 p.m. today. Defendants were not satisfied with that, and applied to the Supreme Court to vacate its stay in its entirety.
Appellant interposes this motion in anticipation that either the Supreme Court will vacate the existing stay or it will take longer than seven hours and thirteen minutes to process his appeal.
‐ 6 ‐

WHEREFORE, the appellant prays the Court for its order as

aforesaid.

Respectfully submitted,

Of Counsel Sindel, Sindel & Noble, P.C.

JOHN WILLIAM SIMON
2683 South Big Bend Blvd., Suite 12 St. Louis, Missouri 63143‐2100
(314) 645‐1776 FAX (314) 645‐2125 simonj@sbcglobal.net
Attorney for Appellant

Certificate of Service
I hereby certify a true and correct copy of the foregoing was
[Click here and type mode of service] this ____ day of
[Click here and type Month, Year of service], to the office of:
[Click here and type Opposing Counsel] [Click here and type Opposing Counselʹʹs Title or Office] [Click here and type Opposing Counselʹs Address] [Click here and type Opposing Counselʹs City State Zip]
FAX [Click here and type Opposing Counselʹs Fax Number]

___________________________ Attorney for Appellant

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 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
___________________________________________
NO. 06-3651 ____________________________________________
MICHAEL ANTHONY TAYLOR, Appellee,
v.
LARRY CRAWFORD, et al., Appellants.
____________________________________________
On Appeal from the United States District Court for the Western District of Missouri, Central Division
The Honorable Fernando J. Gaitan, District Judge ____________________________________________
BRIEF OF APPELLANTS _____________________________________________
JEREMIAH W. (JAY) NIXON Attorney General
MICHAEL PRITCHETT Assistant Attorney General Missouri Bar No. 33848
STEPHEN D. HAWKE Assistant Attorney General Missouri Bar No. 35242
P.O. Box 899 Jefferson City, MO 65102 (573) 75l-332l ATTORNEYS FOR APPELLANTS

SUMMARY AND REQUEST FOR ORAL ARGUMENT Plaintiff-Appellee Michael Anthony Taylor, a murderer sentenced to death, challenges Missouri’s three-chemical lethal injection procedure as violative of the Eighth Amendment’s ban of cruel and unusual punishments. The crux of Taylor’s argument is that the first chemical administered, thiopental, may not render him unconscious before and during the administration of the second two chemicals, pancuronium bromide and potassium chloride. Taylor asserts that, after the pancuronium bromide disables him from moving (its intended purpose), the administration of potassium chloride (intended to stop his heart) may cause him pain if the thiopental has not had its intended anesthetic effect. Under Missouri’s three-chemical procedure, however, the thiopental is administered in an amount large enough that even Taylor’s expert witness agreed a condemned prisoner would be quickly rendered so deeply unconscious that he would not be aware of any pain from the succeeding chemicals and would remain at that level of unconsciousness for a length of time that is longer than required for the completion of the execution. The defendant-appellee prison officials request twenty minutes for oral argument.
1

TABLE OF CONTENTS SUMMARY AND REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . 1 TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Procedural History of Criminal Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Facts of Criminal Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Procedural History of this Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Statement of Facts Regarding Lethal Injection Procedure . . . . . . . . . . . . . 18 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 ARGUMENT I. The district court erred in determining that Missouri’s
method of execution violates the cruel and unusual punishment clause of the Eighth Amendment because (1) lethal injection does not involve the unnecessary and wanton infliction of pain and (2) the state does not intend lethal injection to cause unnecessary and wanton infliction of pain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Unnecessary and Wanton Infliction of Pain . . . . . . . . . . . . . . . . . . . 28 Mental State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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II. The Missouri lethal injection protocol does not create an unnecessary risk of unconstitutional pain or suffering . . . . . . . . . . 39
Pre-Existing Lethal Injection Procedure Consistent with Eighth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Written Protocol Consistent with Eighth Amendment . . . . . . . . . . . 46
No Risk of Any Pain under Current or Former Lethal Injection Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
III. The district court erred in ruling that the Eighth Amendment constitutionally requires that a doctor prepare and administer, or oversee the preparation and administration, of the chemicals used at executions and that a doctor monitor the anesthetic depth of the condemned prisoner because the anesthetic used, thiopental, is simple to prepare and can be appropriately administered by a nurse or emergency medical technician, and the five grams of thiopental administered will render the condemned deeply unconscious and unaware of the administration of the subsequent chemicals and their effects . . . . . . . . . . . . . . . . . . . . . . . 51
Eighth Amendment Does Not Demand Doctor at Execution . . . . . . 52
Doctor Not Necessary to Assure Proper Administration of Thiopental . . . . . . . . . . . . . . . . . . . . . . . . . 58
Mandating Use of a Doctor Exceeded District Court’s Remedial Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
IV. The district court erred in mandating that a doctor assist at executions because compliance with such a requirement could be impossible to fulfill, and thereby effectively bar implementation of the death penalty in Missouri, in that doctor participation in executions is inconsistent with some interpretations of a doctor’s ethical duties . . . . . . . . . . . . . . . . . . . . 63
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
3

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
4

TABLE OF AUTHORITIES Cases Aguiler v. Dretke, 126 s.cT. 2318 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Abdur’rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005) . . . . . . . . . . . 41, 50, 52 Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005), cert. denied, 543 U.S.
1096 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 58, 64 Bieghler v. State, 839 N.E.2d 691 (Ind. 2005), cert. denied 126 S.Ct. 1190
(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Blaze v. Rees, 2006 WL 3386544 (Ky. Nov. 22, 2006) . . . . . . . . . . . . . . . . . . . . 53 Bryan v. Moore, 528 U.S. 1133 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Callins v. Collins, 510 U.S. 1141 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . 33, 58 Chaney v. Heckler, 718 F.2d 1174 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . 40 Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . 31 Cummings v. Malone, 995 F.2d 817 (8th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . 37 Darst-Webbe Tenant Ass'n Bd. v. St. Louis Housing Auth., 339 F.3d 702
(8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Dataphase Systems v. C L Systems, 640 F.2d 109 (8th Cir. 1981) . . . . . . . . . . . . 32 Estelle v. Gamble, 429 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Evans v. Saar, 412 F. Supp. 2d 519 (D. Md. 2006) . . . . . . . . . . . . . . 50, 53, 54, 59 Farmer v. Brennan, 511 U.S. 825 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5

Gilmore v. California, 220 F.3d 987 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . 61-62 Gomez v. United States District Court, 503 U.S. 653 (1992) . . . . . . . . . . . . . . . . 36 Gregg v. Georgia, 428 U.S. 153 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-28 Heckler v. Chaney, 470 U.S. 821 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Hope v. Pelzer, 536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 In re Kemmler, 136 U.S. 436 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 34 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) . . . . 27, 30, 33, 35, 58 Malicoat v. State, 137 P.3d 1234 (Okla. Crim. App. 2006) . . . . . . . . . . . . . . 34, 53 Milliken v. Bradley, 97 S. Ct. 2749 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006), aff’d, 438 F.3d
926 (9th Cir. 2006), cert. denied, 126 S. Ct. 1314 (2006) . . . . 31, 33, 39, 55 Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va. 2004) . . . . . . . . . . . . . . . . . . . . 59 State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996) . . . . . . . . . . . . . . . . . . . . . 14, 16 State v. Webb, 750 A.2d 448, 452 (Conn. 2000), cert. denied, 121 S. Ct. 93
(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 60 Swann v. Charlotte-Mecklenburg Bd. of Ed., 91 S. Ct. 1267 (1971) . . . . . . . . . . 61 Taylor v. Bowersox, 329 F.3d 963 (8th Cir. 2003),
cert. denied, 541 U.S. 947 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Taylor v. Crawford, 445 F.3d 1045 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 17 Taylor v. Missouri, 519 U.S. 1152 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986), cert. denied, 107 S. Ct.
2462 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 6

Walker v. Johnson, 448 F. Supp. 2d 719 (E.D. Va. 2006) . . . . . . . . . . . . . . . . . . 53 Whitley v. Albers, 475 U.S. 312 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Wilkerson v. Utah, 99 U.S. 130 (1878) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 34 Wilson v. Seiter, 501 U.S. 294 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Other Authorities 18 U.S.C. 3626(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Drug Companies and Their Role in Aiding Execution, pp. 8-9 (2002)
(available at http://www.ncadp.org/assets/applets/report.pdf . . . . . . . . . . 40 Ex parte Aguilar, 2006 WL 1412666, at *4 (Tex. Ct. Crim. App., May 22,
2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 http://capitaldefenseweekly.com/chair.htm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 http://cftj.org/html/ modules.php?name=News&file=article&sid=1354 . . . . . . . 48 http://historytogo.utah.gov/salt_lake_tribune/in_another_time/012896.html . . . 29 http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection%
20Documents/California/Morales%20Dist%20Ct/November%20filin g/Heath%20Post-Trial%20Decl.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 http://www.time.com/time/health/article/0,8599,1564144,00.html?cnn=yes (“How We Confuse Real Risks With Exaggerated Ones” . . . . . . . . . . . . 32 Missouri Supreme Court Rule 24.035 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14 Missouri Supreme Court Rule 27.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 §545.720, RSMo 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 §565.020, RSMo. 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7

§565.110, RSMo. 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 §566.030, RSMo. Cum. Supp. 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 §571.015, RSMo. 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 “Doctors at Aspect Medical Systems, which makes the device, have said
they would not have sold one to the state if they had known its intended use.” http://cftj.org/html/ modules.php?name=News&file=article&sid =1354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
8

ISSUES PRESENTED FOR REVIEW I.
Whether the district court erred in determining that Missouri’s method of execution violates the cruel and unusual punishment clause of the Eighth Amendment when (1) lethal injection does not involve the unnecessary and wanton infliction of pain and (2) the state does not intend lethal injection to cause unnecessary and wanton infliction of pain.
Gregg v. Georgia, 428 U.S. 153 (1976); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Wilkerson v. Utah, 99 U.S. 130 (1878); In re Kemmler, 136 U.S. 436 (1890).
II. Whether the district court erred by concluding that the Missouri lethal injection protocol creates an unnecessary risk of unconstitutional pain or suffering. Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005), cert. denied, 543 U.S. 1096 (2005); Evans v. Saar, 412 F. Supp. 2d 519 (D. Md. 2006); Abdur’rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005).
9

III. Whether the district court erred in ruling that the Eighth Amendment constitutionally requires that a doctor prepare and administer, or oversee the preparation and administration, of the chemicals used at executions and that a doctor monitor the anesthetic depth of the condemned prisoner when the anesthetic used, thiopental, is simple to prepare and can be appropriately administered by a nurse or emergency medical technician, and the five grams of thiopental administered will render the condemned deeply unconscious and unaware of the administration of the subsequent chemicals and their effects. Swann v. Charlotte-Mecklenburg Bd. of Ed., 91 S. Ct. 1267 (1971); Evans v. Saar, 412 F. Supp. 2d 519 (D. Md. 2006); Abdur’rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005); Campbell v. Wood, 18 F 3d 662 (9th Cir. 1994).
IV. Whether the district court erred in mandating that a doctor assist at executions when compliance with such a requirement could be impossible to fulfill, and thereby effectively bar implementation of the death penalty in Missouri, in that doctor participation in executions may be inconsistent with some interpretations of a doctor’s ethical duties.
10

Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005); American Medical Association’s Code of Ethics, E-2.06
11

STATEMENT OF THE CASE Procedural History of Criminal Case. Taylor was charged by indictment in the Circuit Court of Jackson County, State of Missouri, with one count of murder in the first degree, in violation of §565.020, RSMo. 1994; one count of the felony of armed criminal action, in violation of §571.015, RSMo. 1994; one count of the Class B felony of kidnaping, in violation of §565.110, RSMo. 1994; and one count of the felony of forcible rape, in violation of §566.030, RSMo. Cum. Supp. 1993. On February 8, 1991, Taylor appeared with his attorneys before the Honorable Alvin C. Randall and expressed his desire to enter a plea of guilty to these charges in open court and on the record pursuant to Missouri Supreme Court Rule 27.01(b). After a three day punishment phase hearing, Judge Randall sentenced Taylor to death. Taylor also received sentences of life imprisonment for rape, fifteen years imprisonment for kidnaping, and ten years imprisonment for armed criminal action, all terms to run consecutively. Taylor brought a post-conviction action pursuant to Missouri Supreme Court Rule 24.035, challenging his guilty plea and sentence. After an extensive evidentiary hearing the circuit court denied Taylor's post-conviction motion. Taylor filed an appeal challenging the guilty plea, the imposition of the death penalty and the denial of the Rule 24.035 motion for post-conviction relief, and
12

argued to the Missouri Supreme Court some fifteen claims of error. The Missouri Supreme Court issued the following order on June 29, 1993:
ORDER Judgment vacated. Cause remanded for new penalty hearing, imposition of sentence, and entry of new judgment. Taylor's second punishment phase hearing before Judge Michael Coburn began on May 2, 1994. Initially, Judge Coburn heard evidence for three days. The evidence was held open, and Taylor was allowed to present the testimony of additional witnesses on May 12, 1994 and June 6, 1994. The state adduced evidence concerning the abduction and murder of Ann Harrison, as well as evidence of Taylor's escape from custody. The defense called ten witnesses in purported mitigation of punishment. On June 17, 1994, over three years after he had first received the penalty of death, Taylor appeared before Judge Coburn for formal sentencing. In oral and written findings, Judge Coburn found six statutory aggravating circumstances beyond a reasonable doubt, as well as three non-statutory aggravating circumstances. Judge Coburn found the existence of one mitigating circumstance, rejecting several others offered by Taylor, and concluded that the mitigating circumstance did not outweigh the aggravating circumstances of this case, making the sentence of death appropriate. Taylor also received fifty years for armed criminal action, fifteen years for kidnaping and life imprisonment for rape, all terms to run consecutively. Taylor filed an appeal.
13

He also sought post-conviction relief under Missouri Supreme Court Rule 24.035.
This time, again on consolidated appeal, the Missouri Supreme Court affirmed. State
v. Taylor, 929 S.W.2d 209 (Mo. banc 1996). The United States Supreme Court
denied review. Taylor v. Missouri, 519 U.S. 1152 (1997).
Taylor initiated a petition for writ of habeas corpus in the United States District
Court for the Western District of Missouri. The district court denied the petition, and
on May 7, 2003, this Court affirmed. Taylor v. Bowersox, 329 F.3d 963 (8th Cir.
2003), cert. denied, 541 U.S. 947 (2004).
Facts of Criminal Case. The Supreme Court of Missouri described the
circumstances surrounding Taylor's offenses in the direct appeal opinion.
According to Taylor's testimony at his guilty plea, Taylor's videotaped statement and other evidence adduced in the sentencing hearing, Taylor and a companion, Roderick Nunley, spent the night of March 21, 1989, driving a stolen Chevrolet Monte Carlo, stealing "Ttops," smoking marijuana and drinking wine coolers. At one point during the early morning hours of March 22, they were followed by a police car, but lost the police after a high speed chase on a highway. About 7:00 a.m., they saw fifteen-year-old Ann Harrison waiting for the school bus at the end of her driveway. Nunley told Taylor, who was driving at the time, to stop so Nunley could snatch her purse. Taylor stopped the car, Nunley got out, pretended to need directions, grabbed her and put her in the front seat between Taylor and Nunley. Once in the car, Nunley blindfolded Ann with his sock and threatened to stab her with a screwdriver if she was not quiet. Taylor drove to Nunley's house and took Ann to the basement. By this time her hands were bound with cable wire. Nunley removed Ann's clothes and had forcible sexual intercourse with her. Taylor then had forcible intercourse with her. They untied her, and allowed her to dress. Ann tried to persuade them
14

to call her parents for ransom, and Nunley indicated he would take her to a telephone to call home. They put the blindfold back on her and tied her hands and led her to the trunk of the Monte Carlo. Ann resisted getting into the trunk until Nunley told her it was necessary so she would not be seen. Both men helped her into the trunk.
Nunley then returned to the house for two knives, a butcher knife and a smaller steak knife. Nunley argued with Taylor about whether to kill her. Nunley did not want Ann to be able to testify against him and emphasized he and Taylor were in this together. Nunley then attempted to slash her throat but the knife was too dull. He stabbed her through the throat and told Taylor to "stick her." Nunley continued to stab, and Taylor stabbed Ann "two or three times, probably four." He described how "her eyes rolled up in her head, and she was sort to like trying to catch her, her breath."
Nunley and Taylor argued about who would drive the Monte Carlo, and Nunley ended up driving it following Taylor who was driving another car. Taylor picked up Nunley after he abandoned the Monte Carlo with Ann Harrison in the trunk. They returned to Nunley's house where Nunley disposed of the sock, the cable wire, and the knives.
When the school bus arrived at the Harrison home to pick up Ann, the driver honked because she was not there. Mrs. Harrison looked out of the window and noticed Ann's purse, gym clothes, books, and flute lying on the driveway. She waved for the bus to go on and began to look for her daughter. Police quickly mounted a ground and air search. Ann Harrison's body was discovered the evening of March 23rd when police found the abandoned Monte Carlo and a friend of the car's owner opened the trunk.
The State's physical evidence included hair matching Taylor's collected from Ann Harrison's body and the passenger side of the Monte Carlo, hair matching Ann's collected from Nunley's basement, sperm and semen belonging to Taylor found on Ann's clothes and body. An autopsy revealed a lacerated vagina, six stab wounds to Ann's chest, side, and back which penetrated her heart and lungs, and four stab wounds to her neck. The medical examiner testified Ann Harrison was alive when all the wounds were inflicted and could have remained
15

conscious for ten minutes after the stabbing. She probably lived thirty minutes after the attack. State v. Taylor, 929 S.W.2d 209, 214 (Mo. banc 1996) (footnote omitted). Procedural History of this Case. Plaintiff-appellee Michael Anthony Taylor initiated this litigation on June 3, 2005, by filing a complaint requesting preliminary injunctive relief, declaratory relief, and a permanent injunction against his execution by means of Missouri’s lethal injection procedure. App. 1.7 He filed an amended complaint on September 12, 2005. App. 35-101. In his complaints, Taylor challenged the constitutionality of Missouri’s execution process. On January 3, 2006, the Missouri Supreme Court set February 1, 2006, as Taylor’s execution date. App. 102. On January 19, 2006, the district court granted Taylor’s application for an order prohibiting his execution. App. 124-25. The prison official defendants appealed that order. App. 126-27. On January 29, 2006, this Court vacated the stay in part and remanded the cause to the district court for further proceedings. App. 129-30.
7References to the Addendum are denoted “Add. ___.” References to the Appendix are denoted “App. ___.” References to the transcripts of the several days of trial are denoted “Jan. 30 Tr. ___,” “Jan. 31 Tr. ___,” or “June Tr. ___.” (These various transcript references are used because the transcripts of the proceedings on January 30 and 31, 2006, are separately paginated from one another and also separately paginated from the transcript of the proceedings on June 12 and 13, 2006.
16

On January 30-31, 2006, the district court held an evidentiary hearing. App. 8. The court found Taylor’s claims meritless, Add. 1-9; App. 131-39, and entered judgment in favor of the prison officials on January 31, 2006. App. 140. Taylor filed a Notice of Appeal on the same day. App. 141-42. On February 1, 2006, a panel of this Court denied Taylor’s request for stay of execution, but the Court en banc issued a stay. App. 145-46. The United States Supreme Court declined to vacate that stay. App. 147.
On April 27, 2006, the court remanded the cause to the district court for further proceedings. Taylor v. Crawford, 445 F.3d 1045 (8th Cir. 2006); App. 148-54. After extensive discovery, the district court held a supplemental hearing on June 1213, 2006. App. 19. The district court issued its order amending its January 31, 2006, order on June 26, 2006. App. 187-202; Add. 10-25. It required the defendant prison officials to submit a “written protocol for the implementation of lethal injections” by July 15, 2006. App. 199-201; Add. 22-24. The prison officials submitted a written protocol on July 14, 2006, App. 203-26; Add. 32-35, and then appealed the June 26 order as a precaution (in case it would be interpreted as an order final for purposes of appeal). App.227-28. The district court concluded it no longer had jurisdiction. App. 354-55. This Court remanded the case “to the district court for consideration of [the] newly propounded protocol and all other issues” on August 9, 2006. Taylor v. Crawford, 457 F.3d 902 (8th Cir. 2006); App. 356-59.
17

On September 12, 2006, the district court found the protocol insufficient and directed the prison official defendants to submit a revised protocol. App. 372-75; Add. 26-29. In response, the prison officials maintained that the protocol did comply with the Eighth Amendment and asked the court to reconsider its conclusion to the contrary. App. 377-79. On October 16, 2006, the district court declined to reconsider its order and entered judgment against the prison officials. App. 385-85; Add. 30-31. The prison officials appealed. App. 386-88.
Statement of Facts Regarding Lethal Injection Procedure. Missouri’s lethal injection procedure, as established at the time Taylor filed this suit, was described in detail in interrogatory responses from defendant Crawford admitted into evidence at the hearing in this case. After the condemned prisoner is brought into the execution room, a doctor sets an IV catheter in the condemned prisoner’s femoral vein. App. 813. Once the catheter is in place, the doctor injects flush solution through the tube into the vein to make sure the line flows freely. App. 813.
After the IV is in place and its flow checked, the Director of the Department of Corrections directs that the execution begin. App. 820. The Director does not give this order until he receives word that the governor has declined to exercise clemency and that the courts have declined to order a stay. App. 820.
18

When the order to proceed is given, prison officers inject five grams of thiopental prepared in a 60cc solution into the IV tubing leading to the femoral catheter set by the doctor. App. 820. Then 30cc of flush is injected to clear the line. App. 820. After the flush, 60cc of pancuronium bromide is injected. App. 820. Next, another 30cc of flush is injected to clear the line. App. 820. After this flush, 240 milliequivalents of potassium chloride is injected. App. 821. Finally, 60cc of flush is injected. App. 821. The entire process of injection of the chemicals and flush takes approximately 2 to 4 minutes. App. 821.
Once all the chemicals are administered the doctor monitors the electrocardiogram machine and determines death when all electrical activity of the heart ends. App. 814, 821. The time from injection of the first chemical to death, as shown by complete cessation of electrical activity in the heart, is from two to five minutes. Jan. 31 Tr. 72-73; App. 804.
The thiopental renders the condemned prisoner sufficiently unconscious to be unable to experience pain. App. 391 (¶ 5). Defendants’ expert, Dr. Mark Dershwitz, testified that by the time five grams of this chemical are injected, over 99.99999999 % of the population would be unconscious. App. 392 (¶ 8). He also testified that there is only an approximately 0.000000006 % probability that a condemned prisoner given this amount would be conscious and able to experience pain after five minutes. App. 393 (¶ 9). Dr. Dershwitz calculated the same
19

probability of consciousness after ten minutes at approximately 0.0000015 %, after thirty minutes at 0.000021 %, and after sixty minutes at 0.00047 %. App. 393 (¶¶ 1012). According to Dr. Dershwitz, most people receiving five grams of thiopental would be unconscious in excess of seven hours, assuming they were able to continue breathing. App. 393 (¶ 13).
The injection of pancuronium bromide will cause complete paralysis within a few minutes. Jan. 30 Tr. 27. The pancuronium bromide will prevent seizure activity during an execution and thereby result in a more peaceful and dignified death. App. 797. Administration of potassium chloride in the amount used in Missouri executions will quickly stop the heart. Jan. 30 Tr. 29.
In recent executions, the assisting doctor had difficulty mixing a 60cc solution containing five grams of thiopental because of a change of packaging. App. 643-47, 672-75. As a result, he prepared solutions that contained 2.5 grams of thiopental. App. 647-53, 664-65, 675. The doctor, based on his medical knowledge and experience, determined the lesser amount used to be more than sufficient to render the condemned prisoner deeply unconscious and unable to experience any pain. App. 627-28, 629, 676, 687. Plaintiff’s expert, Dr. Thomas Henthorn, testified that as little as 1.67 grams of thiopental will result in a deep state of unconsciousness in almost everyone. June Tr. 233, 241-42. Dr. Henthorn also testified that
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administration of the much larger than clinical amounts he was discussing will remain effective for 45 minutes to hours. June Tr. 245-46.
The doctor assisting at executions reduced the standard five gram amount of thiopental at his own discretion, believing that he had authority to do so based on his long experience assisting at executions. App. 626; June Tr. 341-42, 367-68. When the Director of the Department of Corrections learned that the doctor had not used the prescribed 2.5 grams, he was extremely concerned that the doctor had not reported the change in the amount of thiopental used, but he also was of the understanding that 2.5 grams was still six times the amount normally given for surgery. June Tr. 366-69. Because of the modification in the amount of thiopental used, which had occurred without his knowledge, the Director determined to prepare a directive to make the approved protocol explicit and to insure that changes in the amounts of chemicals used would occur only with his approval. June Tr. 369-74. The planned directive also included an auditing process. June Tr. 373-74. Once the directive was complete and before any further executions, the Director planned to meet with his staff, including the doctor, to explain it. June Tr. 374. Under the Director’s plan, he would emphasize that changes in the amounts of chemicals used required his pre-approval. June Tr. 371-74.
After the hearing in this case, and the district court’s direction to submit a protocol to it, the prison official defendants prepared a written protocol for the court’s
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review. App. 215-18; Add. 32-35. In summary, the protocol requires a physician, nurse or pharmacist to prepare the chemicals used during the lethal injection. App. 215-16; Add. 32-33 (§§A.2 & B). A physician, nurse, or EMT inserts the intravenous lines, monitors the condemned and supervises the injection of lethal chemicals by non-medical members of the execution team. App. 215-17; Add. 32-34 (§§A.3, C, D, & E.3 to E.4 ). The protocol requires administration of five grams of thiopental in 200cc of solution, a 30cc saline flush, 60 mg of pancuronium bromide in 60cc solution, a 30cc flush, 240 milliequivalent of potassium chloride followed by a 60cc flush. App. 215; Add. 32 (§B.1 to B.7).
Following administration of the thiopental, medical personnel examine the condemned to confirm that he is unconscious. App. 217; Add. 34 (§E.3). In the unlikely event the condemned is still conscious following the first injection of thiopental, then another five gram injection would occur. App. 217; Add. 34 (§E.4). The condemned would then be examined again for consciousness. App. 217; Add. 34 (§E.3 & 5). Once the condemned is unconscious and three minutes have lapsed from the effective injection of thiopental, App. 217; Add. 34 (§E.5), then the remaining chemicals are injected. App. 217; Add. 34 (§E.5 to E.9). If the condemned’s heart does not cease activity within five minutes, then additional potassium chloride is injected to cause death. App. 217; Add. 34 (§E.10). When electrical activity of the heart ceases, then medical personnel pronounce death. App.
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217; Add. 34 (§E.11). Finally, there are procedures to document the chemicals used during the execution process. App. 218; Add. 35 (§F).
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SUMMARY OF THE ARGUMENT Under United States Supreme Court precedent, a punishment is cruel and unusual, and thereby in violation of the Eighth Amendment, only if that punishment involves the unnecessary and wanton infliction of pain. There is no foundation in the text of the Eighth Amendment to reset the standard to prohibit punishments that create only an unreasonable risk of unnecessary and wanton infliction of pain. A “risk” standard is also unworkable in that all human activity entails risk. Such a standard could also tempt courts to become involved in decisions properly vested in the executive. Some level of scienter is also required before a punishment may be found to violate the Eighth Amendment. Be it deliberate indifference, malicious and sadistic, or some other mental state, there must be some finding of intent to inflict cruel and unusual punishment before the Eighth Amendment applies. Missouri officials whose duty is to carry out executions are quite concerned that they carry out this duty as humanely as possible. Regardless of whether the Supreme Court’s standard or the “risk” standard applies, Missouri’s lethal injection procedure is consistent with the Eighth Amendment. The initial injection of five grams of thiopental, many times the amount used during surgery, is more than sufficient to render the condemned prisoner deeply
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unconscious and unable to experience any pain from the administration of the next two chemicals. Missouri’s procedure is also expressly formulated, provides reasonable guidance as to its implementation, and is subject to appropriate oversight.
Although the district court firmly believes that the assistance of a doctor is necessary at an execution by lethal injection, the presence of a doctor is not mandated by the Eighth Amendment. Missouri’s lethal injection procedure contains many safeguards that provide assurance that condemned prisoners will not experience unnecessary and wanton pain, or an unreasonable risk of such pain, regardless of whether a doctor takes part.
Moreover, it is difficult, if not impossible, to find a doctor to participate at an execution due largely to personal ethical concerns or concerns that licensing authorities will deem such participation a violation of professional ethical standards. Because it may be impossible to find a doctor to take part in one or more executions, a requirement of doctor participation could effectively prevent implementation of the death penalty.
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STANDARD OF REVIEW On review of a bench trial, as occurred here, the appellate court reviews the trial court’s findings of fact for clear error and its conclusions of law de novo. DarstWebbe Tenant Ass'n Bd. v. St. Louis Housing Auth., 339 F.3d 702, 710-11 (8th Cir. 2003).
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ARGUMENT I.
The district court erred in determining that Missouri’s method of execution violates the cruel and unusual punishment clause of the Eighth Amendment because (1) lethal injection does not involve the unnecessary and wanton infliction of pain and (2) the state does not intend lethal injection to cause unnecessary and wanton infliction of pain.
In its October 16, 2006, order and judgment finding Missouri’s lethal injection protocol unconstitutional, the district court applied an Eighth Amendment legal standard unsupported by Supreme Court precedent. The Supreme Court has concluded that the Eighth Amendment prohibits the states from purposefully inflicting unnecessary and wanton pain. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947); Gregg v. Georgia, 428 U.S. 153 (1976). In stark contrast to this settled law, the district court failed to find two elements of an Eighth Amendment claim: (1) unnecessary and wanton infliction of pain that (2) was purposefully inflicted. The district court only found that the Missouri protocol “subjects inmates to unreasonable risk of cruel and unusual punishment.” App. 384; Add. 31 (emphasis added)). That “risk” standard has not been adopted by the United States Supreme Court as its interpretation of the Eighth Amendment. And there was no finding that
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the prison official defendants acted purposefully or with any other mental state. When the proper Supreme Court’s Eighth Amendment standard is applied to the facts adduced before the district court, it becomes readily apparent that prison officials were entitled to judgment.
Unnecessary and Wanton Infliction of Pain The Supreme Court provided its guidance on the lawfulness of a method of execution under the Eighth Amendment in Gregg v. Georgia, 428 U.S. 153 (1976). After reviewing the history of the Eighth Amendment to the constitution, id. at 16970, and its previous cases, id. at 170-71, the Supreme Court stated that “the punishment must not involve the unnecessary and wanton infliction of pain.” Id. at 173. Conspicuously missing from this statement of the law is the word “risk,” the lynchpin of the district court’s judgment. Nor does one find the word “risk” in the earlier decisions by the Supreme Court. The Supreme Court has addressed a constitutional challenge to a method of execution at least three times and in none of those decisions was “risk” a consideration. In Wilkerson v. Utah, 99 U.S. 130 (1878), the court discussed whether Utah could execute by shooting without violating the Eighth Amendment. The court made clear it viewed the Eighth Amendment as prohibiting “punishments of torture,” such as ones that involve “unnecessary cruelty.” Id. at 136. The meaning of these
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phrases is supplied by the preceding paragraphs in Wilkerson where there was discussion about when “terror, pain or disgrace [was] sometimes superadded” to sentences of capital punishment. Id. at 135. Examples given were “where the prisoner was drawn or dragged to the place of execution” for the crime of treason or where the prisoner “was embowelled alive, beheaded and quartered” as punishment for the crime of high-treason. Id. The court also mentioned public dissection for the offense of murder or the prisoner being burned alive for the offense of treason committed by a woman. Id. As Wilkerson makes clear, the method of execution, shooting, did not violate the cruel and unusual punishment clause, id. at 136, because it was not a punishment of “unnecessary cruelty.” In contrast to the district court, the Wilkerson decision did not incorporate “risk” of cruel and unusual punishment as its Eighth Amendment analysis even though there is a “risk” of the volley’s failure to kill. See http://historytogo. utah.gov/salt_lake_tribune/in_another_time/012896.html (last visited 11-27-06) (reviewing Utah’s “botched execution” by firing squad).
In a second decision about a method of execution, the Supreme Court upheld New York’s use of electrocution as a means of execution. In re Kemmler, 136 U.S. 436 (1890). In its analysis, the Court described the Eighth Amendment as prohibiting a state from having a punishment for an offense that was as “manifestly cruel and unusual as burning at the stake, crucifixion, breaking on the wheel or the like . . . .” Id. at 446. Speaking more generally, the court stated:
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Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, - - something more than the mere extinguishment of life. Id. at 447. Similarly, when the Supreme Court revisited the electric chair as a method of execution, the analysis of the Supreme Court did not change. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947). It relied heavily on In re Kemmler, 136 U.S. at 436, and found use of the Louisiana electric chair to be constitutional. 329 U.S. at 464. The court examined the Louisiana fact pattern to determine if torture were involved. 329 U.S. at 463-64. Because there was no torture, Louisiana’s use of the electric chair was constitutional. Id. at 464. The Reseweber decision did not incorporate “risk” of cruel and unusual punishment as its Eighth Amendment analysis even though there was a “risk” of the chair’s failure to perform. See generally http:// capitaldefenseweekly.com/chair.htm (last visited 11/27/06), at pages 2 & n.36-37, 12-13). As this Supreme Court precedent makes clear, the issue before the district court was whether lethal injection as a means of execution constitutes torture such as burning at the stake, crucifixion, quartering and the like. And it is not. Lethal injection is not used as a means of execution that tortures the offender. The district
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court did not conclude that Missouri’s lethal injection was torture or involved the unnecessary and wanton infliction of pain.
The district court could not find lethal injection was torture; instead, it held that lethal injection created an “unreasonable risk of cruel and unusual punishment.” App. 384; Add. 31. The district court did not cite legal authority for this legal proposition, risk, in its October 16 order. App. 384; Add.31. In a previous order, the district court cited another district court’s decision, Morales v. Hickman, 415 F. Supp. 2d 1037, 1039 (N.D. Cal. 2006) (subsequent history omitted). App. 196-97; Add. 19-20. And instead of citing precedent from the United States Supreme Court, the district court in Morales quoted a previous decision from the Ninth Circuit that has the phrase “unnecessary risk of unconstitutional pain.” Id. (quoting Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004)). When the Court reads Cooper, however, the Ninth Circuit did not cite precedent from the Supreme Court or, for that matter, from any other court to support its “unnecessary risk” standard.
But an examination of the Cooper decision reveals the source of its “risk” standard. In Cooper, the offender was seeking a temporary restraining order and a preliminary injunction. 379 F.3d at 1030. Cooper’s goal in the litigation was to obtain a stay of execution. Id. The question before the district court and then the Ninth Circuit was whether there was a risk of unconstitutional pain and suffering that would justify a stay of execution and a preliminary injunction. Id. at 1030, 1032.
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This court uses similar risk analysis when it reviews a preliminary injunction situation. See e.g., Dataphase Systems v. C L Systems, 640 F.2d 109, 113 (8th Cir. 1981) (“threat of irreparable harm to the movant”).
And while that is appropriate for appellate review of a preliminary injunction, the district court here was not issuing a preliminary injunction in its eventual October 16, 2006 order and judgment. App. 383-85; Add. 30-31 Instead, the district court conflated the preliminary injunction standard with the Eighth Amendment standard to create a novel standard, a standard that inquired into the unreasonable “risk” of unconstitutional pain and suffering. App. 187-88; Add. 10-11.
This Court should reject a “risk” standard of Eighth Amendment analysis for a multitude of reasons. First, the “risk” standard has no foundation in the text of the Eighth Amendment. The Eighth Amendment prohibits “cruel and unusual punishments.” It does not refer to either a risk of excessive bail nor the risk of an excessive fine nor the risk of cruel and unusual punishment.
Second, a “risk” standard is unworkable. All human activity entails risk. See http://www.time.com/time/health/article/0,8599,1564144,00.html?cnn=yes (“How We Confuse Real Risks With Exaggerated Ones”) (emotions exaggerating risk analysis) (last visited 11/29/06). And with the introduction of the “risk” premise comes the inevitable claims that all bail and fines carry some risk of being excessive and that all forms of punishment, including incarceration, carry some risk of being
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cruel and unusual. It is safe to say that going to prison is fraught with risks. Of course, such an outcome is unworkable. An example illustrates: in the complaint’s prayer for relief, Taylor concedes that his execution by a single barbiturate (pentobarbitol) would satisfy him. App. 22 (¶ 54). But, in the Morales litigation, Taylor’s expert, Dr. Heath, contends that administration of the single chemical is “not devoid of risks.” http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection% 20Documents/California/Morales%20Dist%20Ct/November%20filing/Heath%20 Post-Trial%20Decl.pdf (last visited 11/29/06) (Paragraph 59).8 It seems that every human endeavor has risks.
The Supreme Court precedents have been recognized by other courts. In Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994), the court stated: “The risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.” See also Louisiana ex rel. Francis v. Resweber, 329 U.S. at 464. And the dissent in Campbell was not to the contrary. It viewed death by
8The risk standard does not become more workable by adding an adjective to describe risk, e.g., unreasonable or unnecessary. It is the word “risk,” with or without an adjective, that gives rise to uncertainty, with its following litigation that makes that standard an unworkable constitutional standard. And the adjectives are uncertain as well. Do odds of 1 in 10 of an adverse event render a punishment an unreasonable risk or an unnecessary risk? 1 in 100? There was no quantification of risk by the district court, perhaps because there was no testimony about quantification.
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hanging as comparable to the “rack and screw” that would violate the Eighth Amendment, as discussed by the Supreme Court in Wilkerson and Kemmler.
Similarly, the Oklahoma Court of Criminal Appeals and the Connecticut Supreme Court have noted that an execution process has the possibility of human error, but the risk of accident need not be eliminated in order for the method of execution to survive constitutional challenge. Malicoat v. State, 137 P.3d 1234, 1238 (Okla. Crim. App. 2006), citing State v. Webb, 750 A.2d 448, 456-57 (Conn. 2000).
Third, use of risk as the constitutional standard empowers the judiciary to assume the executive role of executioner in a Camelot-like quest to lower risks. That is precisely what the district court did here with regard to personnel qualifications. In the June order, the district court ordered the prison officials to use a board certified anesthesiologist, App. 200; Add. 23, even though none is available. When prison officials pointed this out, App. 206-07, the district court indicated it would be satisfied with “a physician with training in the application and administration of anesthesia,” App. 373; Add. 27, but again without any showing of availability. The same can be said of the monitoring machine. App. 373; Add. 27.
A method of execution should pass or not pass constitutional scrutiny based on its own characteristics, not on the potential for “risk.”
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Mental State Not only does the district court fail to find the “unnecessary and wanton infliction of pain,” but also there is no finding of scienter by the prison officials. That omission is understandable given the testimony by the prison officials of the desire to have an effective, humane and speedy execution. June Tr. 367, 392-93. Defendant Crawford testified to this effect several times during his testimony at the hearing. June Tr. 368-69, 372-73, 376-79, 382-83). “So we’re just going to make this process better and there will be a directive forthcoming on that.” June Tr. 369. “I will say I have faith that we have done constitutional and humane executions, the ones that I have had experience with.” June Tr. 378. A finding of scienter is necessary before lethal injection as a means of execution is declared unconstitutional. The Resweber decision concluded that Louisiana did not have the “purpose” of adding an element of cruelty to the execution. 329 U.S. at 464. And in Missouri, there is no such purpose. In fact, Missouri’s purpose is precisely the opposite. Not long ago, the federal courts were encouraging the states to use lethal injection as their means of execution. See Callins v. Collins, 510 U.S. 1141, 1143 (1994) (dissent of Blackmun, J.) (describing peacefulness of lethal injection); Bryan v. Moore, 528 U.S. 1133 (2000) (dismissing the writ of certiorari as improvidently granted because Florida would carry out
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execution by lethal injection instead of electrocution); Gomez v. United States District Court, 503 U.S. 653, 656 (1992) (Stevens, J., dissenting) (describing alternative to gas chamber (lethal injection) as a “more humane and less violent method of execution”). Following the suggestions of these courts and the actions of other state legislatures, the Missouri legislature adopted lethal injection as the means of execution. §545.720, RSMo 2000. The motives of the state in adopting lethal injection were proper, the antithesis of the mental state necessary to show an Eighth Amendment violation.
Similarly, in the context of operating a correctional facility, Eighth Amendment review asks whether prison officials display “deliberate indifference” to the inmate’s health and safety. See Hope v. Pelzer, 536 U.S. 730 (2002). The deliberate indifference standard subjects prison officials to liability only when they are subjectively aware of a substantial risk of serious harm to the inmate, and they failed to take reasonable measures to abate it. See Farmer v. Brennan, 511 U.S. 825, 847 (1994); Wilson v. Seiter, 501 U.S. 294, 300 (1991). In the prison context, only deliberate indifference to serious medical needs of prisoners constitutes a violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). So if capital punishment were viewed as a “medical procedure” rather than a punishment, Taylor would have to show deliberate indifference, which he did not do.
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Or perhaps lethal injection is better understood as an “excessive force” Eighth Amendment issue where liability of prison officials requires that they use force “maliciously and sadistically for the very purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21 (1986); Cummings v. Malone, 995 F.2d 817, 822 (8th Cir. 1993).
In contrast to these Supreme Court precedents is the district court decision. The district court made no finding of “purpose,” “deliberate indifference,” “maliciously or sadistically,” or of any other mental state by the prison officials in any of its rulings. Nor was there a basis for such a finding. The record demonstrates that Missouri prison officials were and are conscientious in performing an execution. For example, Defendant Crawford, the Director of the Missouri Department of Corrections, became familiar with the execution process after becoming Director in early 2005. June Tr. 364. During the course of the litigation before the district court, it became apparent that half the prescribed five grams of thiopental, the initial chemical injected, had been used at the last executions. June Tr. 341-42.4 Upon learning of this deviation, Defendant Crawford has directed that future executions begin with a five gram injection of thiopental. June Tr. 366-70.
4The average person loses unconsciousness after administration of 200 to 300 milligrams of thiopental (.2 to .3 grams). Tr. 267-68. Some states use as little as 2 grams of thiopental in executions. Tr. 264.
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There is no culpable mental state by prison officials in this cause; thus, the district court’s failure to find scienter is understandable and correct. But that omission also mandates reversal of the district court’s judgment.
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II. The Missouri lethal injection protocol does not create an unnecessary risk of unconstitutional pain or suffering. In Point I, prison officials discuss how the district court used an incorrect legal standard by which to measure the constitutionality of lethal injection in Missouri. In this and succeeding Points, they will assume the legal standard articulated by the district court is correct but demonstrate that the district court misapplied that standard. Pre-Existing Lethal Injection Procedure Consistent with Eighth Amendment The district court required Taylor to show there was “an unnecessary risk of unconstitutional pain or suffering. . . .” App. 196; Add. 19 (quoting Morales v. Hickman, 415 F. Supp. 2d 1037, 1039 (N.D. Cal. 2006), aff’d, 438 F.3d 926 (9th Cir. 2006), cert. denied, 126 S. Ct. 1314 (2006)). The court then inquired whether there was “a reasonable possibility that Plaintiff will be conscious when he is injected with pancuronium bromide [Chemical #2] or potassium chloride [Chemical #3], and, if so, how the risk of such an occurrence may be avoided.” App. 197; Add. 20 (quoting Morales, 415 F. Supp. 2d at 1040). When the evidence from the June 12-13, 2006, evidentiary hearing is reviewed, the inevitable legal conclusion is that there is no
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“reasonable possibility that plaintiff will be conscious” at the time of the
administration of chemicals two and three.
Testimony at the June 12-13 hearing revealed that Missouri would use three
chemicals with its lethal injection protocol. The first chemical was five grams of
thiopental administered in a 60cc syringe. June Tr. 370. A flush followed in order
to clear the lines. June Tr. 370-71. After the flush came another 60cc solution
containing 60 milligrams of pancuronium bromide. June Tr. 371. Following a
second flush was the third chemical, 240 milliequivalents of potassium chloride in
120cc solution. June Tr. 371. Then there was a third flush that cleared the lines.
June Tr. 371.
The first chemical, thiopental, renders the condemned unconscious so that the
execution is humane. June Tr. 264. The five gram injection is a large multiple of the
amount that the average person needs in order to lose consciousness (.2 to .3 grams).
June Tr. 267. The five gram amount induces unconsciousness greater than that necessary for surgery. June Tr. 286.5
5Shortly after lethal injection became a common method of execution, death row offenders sued the Food and Drug Administration requesting, inter alia, the criminal prosecution of drug manufacturers because the drugs had not been certified as “safe and effective” for execution. Chaney v. Heckler, 718 F.2d 1174, 1178 (D.C. Cir. 1983). he Supreme Court eventually rejected the suit. Heckler v. Chaney, 470 U.S. 821 (1985). Opponents of capital punishment pressure companies not to supply the chemicals. See Drug Companies and Their Role in Aiding Execution, pp. 8-9 (2002) (available at http://www.ncadp.org/assets/applets/report.pdf (last visited 11-27-06).
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The second chemical, pancuronium bromide, causes paralysis of the skeletal muscles, prevents a person from having voluntary muscle movement, and results in an inability to breathe. Jan. 30 Tr. 27. And the third chemical, potassium chloride ends electrical activity in the heart, causing it to stop. June Tr. 288-89. Because the condemned is unconscious from the first chemical, the condemned feels no adverse effects from the second or third chemical. June Tr. 285-89.
In three concise pages of the June 26 order, the district court disagrees and finds this procedure violates Taylor’s Eighth Amendment rights. App. 197-99; Add. 20-22. The district court had four complaints.
First, the district court complains “there is no written protocol which describes which drugs will be administered, in what amounts and defines how they will be administered.” App. 197; Add. 20. But the district court refers to no authority that states that the Eighth Amendment requires a written execution protocol. See Abdur’rahman v. Bredesen, 181 S.W.3d 292, 305 (Tenn. 2005) (rejecting Eighth Amendment challenge to Tennessee protocol, based in part on lack of written provisions). And both Larry Crawford, Director of the Department of Corrections and Terry Moore, Director of the Department’s Division of Adult Institutions, testified about the chemicals that would be administered, in what amounts, and how they would be administered at a future execution. June Tr. 344-45, 369-71. The chemicals, their amounts, and the order of administration would be reduced to writing
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before the next execution. June Tr. 369. And now, the Department has developed a written protocol, which establishes detailed guidelines as to the preparation and injection of the chemicals used. App. 215-18; Add. 32-35.6 The district court’s criticism of the Department’s lack of a written protocol was not factually wellfounded and, now that the Department has such a protocol, the concern is moot.
Second, the district court criticized prison officials because “Dr. Doe also testified that he felt that he had the authority to change or modify the formula as he saw fit.” App. 197; Add. 20. The court noted that John Doe had changed the protocol by changing the amount of thiopental from five grams to 2.5 grams as well as the injection site. App. 197; Add. 20. The criticism by the district court misses the mark.
During the course of litigation, the record reflected that Dr. Doe had changed the amount of thiopental to inject from five grams to 2.5 grams for the execution of Gray and in preparation for the February 1, 2006 execution of Taylor. App. 193; Add. 16. Even administration of 2.5 grams is six times the surgical amount. June Tr. 368. This amount ensures unconsciousness. June Tr. 283-84. But the district court expressed concern that the protocol could “change at a moment’s notice” due to the discretion maintained by Dr. Doe. App. 197; Add. 20. That concern by the district
6The Department considers this protocol a good policy instrument. It does not concede that the provisions of the protocol are constitutionally required.
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court is not supported by the record because Director Crawford made clear that he had the discretion, not Dr. Doe. June Tr. 371.
The record developed at the June hearing reflects that Director Crawford is the person who “has the authority to set the method of execution within the dictates in Missouri statute.” June Tr. 363. The Director’s learning of Dr. Doe's previous change in the amount of thiopental administered led to the Director’s intent to issue a defined protocol “so that this didn’t happen again.” June Tr. 369. “So we’re just going to make this process better and there will be a directive forthcoming on that.” June Tr. 369. The purpose was so that there would be “a clear understanding of the process, notification, and we will reach an agreement that that’s what we will follow, absent any order of the court before then.” June Tr. 370. At the hearing, the Director articulated that under the protocol, five grams of thiopental would be given along with 60 mg of pancuronium bromide and 240 milliequivalents of potassium chloride. June Tr. 370-71. Neither the chemicals themselves nor the order of the chemicals, nor the administration could be changed by anyone other than Director Crawford. June Tr. 371. While any change in the protocol could be made by Director Crawford, no change would occur without his consultation with others. June Tr. 372-73. Director Crawford intended that Dr. Doe be fully aware of the terms of the protocol. June Tr. 374. And this, too, was Dr. Doe’s understanding. App. 731-33.
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While the district court articulated concern that Dr. Doe had “total discretion for the execution protocol,” App.197; Add.20, whatever validity those concerns may have had before the litigation, those concerns should have evaporated in light of Director Crawford’s forceful testimony. Tr. 371-74. Additionally, that discretion by Dr. Doe does not exist under the written protocol. “The quantities of these chemicals may not be changed without prior approval of the department director.” App. 215; Add. 32 (§B.1).
The third concern articulated by the district court involved Dr. Doe's ability to mix drugs. App. 198; App. Add. 21. Of course, Chemical 2, pancuronium bromide, and Chemical 3, potassium chloride, come as fully prepared chemicals. Jan. 30 Tr. 14 -15. The first chemical, thiopental, comes from the manufacturer as a powder. Jan. 30 Tr. 13. One mixes the powder that comes in a container with the supplied diluent. Jan. 30 Tr. 14. The district court refers to no episode where Dr. Doe accidently gave an incorrect amount of thiopental to the condemned due to improper mixing. The concerns by the district court are not well grounded in the record.
The recent difficulty experienced by Dr. Doe in mixing thiopental that resulted in less than five grams of this chemical being administered in recent executions was the result of attempting to mix it at a high concentration. App. 645-46, 672-75. The written protocol removes this difficulty because it provides that the five grams of thiopental will be administered in 200cc of solution, App. 215; Add. 32 (§B.2),
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which is the standard 2 ½ % solution (25 mg per mL [equivalent to cc]) that can be prepared exactly as the manufacturer intended. App. 226, 1252. Thus, the preparation of the thiopental will no longer present the problems dealt with by Dr. Doe. It is also important to recognize that even the amounts of thiopental given in recent executions – at least 2.5 grams – were more than adequate to render the condemned prisoner unconscious and unaware of any pain from the succeeding chemicals. June Tr. 220-22, 241, 264-65.
The district court’s fourth criticism of Missouri’s protocol is that Dr. Doe was unable to monitor anesthetic depth. App. 198-99; Add. 21-22. To support this criticism, the court found that Dr. Doe could not see the facial expression of the condemned because the condemned is facing away from the operations room where Dr. Doe is located. App. 198; Add. 21. But Dr. Doe testified that the offender’s facial expression could be seen from his position in the operations room, a room adjacent to the room where the condemned is on a gurney. App. 676-78. And this testimony can be confirmed by the court’s review of Exhibit 47, the videotape of the execution room. The district court also found that it was dark in the operations room. App. 198-99; Add. 21-22. But the condemned is in the adjacent execution room where the fluorescent lights shine brightly. Exhibit 47 (videotape). The district court also noted there were blinds on the windows between the operation room and the execution room. App. 198-99; Add.21-22. These blinds are partially open during an
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execution so that the offender can be observed from the operations room. App. 67678; Exhibit 47 (videotape).
Finally, the Corrections defendants note that issues such as the positioning of the condemned prisoner in the execution room, the lighting in the operations room, and contingency plans have been addressed by the written protocol, App. 216-17; Add. 33-34 (§§ B.8 to B.9, C.1, D.2, E.4, E.10), to the district court’s later satisfaction. App. 373; Add. 27.
Written Protocol Consistent with Eighth Amendment As noted above, following the district court’s June 26 order disapproving Missouri’s execution procedures and directing the submission of a written protocol for the court’s review, the Department of Corrections prepared a detailed protocol. But the court has also found this wanting in certain respects. The district court’s primary dissatisfaction with the new protocol appears to be its failure to require that a doctor trained in the use of anesthesia (1) prepare and administer, or oversee the preparation and administration, of the chemicals used and (2) monitor the anesthetic depth of the condemned prisoner. App. 200-01, 373-74; Add. 23-24, 27-28. These concerns are considered in Points III and IV. The district court also seemed to criticize the auditing process in the proposed protocol. The court directed that the “Sequence of Chemicals” form, which is to
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verify that the chemicals have been given in the proper order, be signed by the staff members taking part in an execution as soon as the inmate had been declared dead. App. 373; Add. 27. But that is already required by the protocol. “Before leaving ERDCC (the prison), all members of the execution team complete and sign the ‘Sequence of Chemicals’ form thereby verifying that the chemicals were given in the order specified in this protocol.” App. 218; Add. 35 (§F.2). The only difference that defendants can perceive may be a matter of timing, with the district court wanting the form signed “as soon as the inmate has been declared dead,” whereas the Department protocol specifies that it will be signed before the execution team leaves the prison. The district court does not articulate the constitutional significance for any difference it perceived. The court also ordered that the doctor sign the chemical log. App. 374; Add. 28. The protocol provides that “medical personnel” fulfill this function. App. 218; Add. 35 (§F.3). To the extent the court’s disagreement is that a doctor is required, the issue is addressed in the following Points.
The district court also suggested that “the State may have to purchase additional equipment in order to adequately monitor anesthetic depth.” App. 200, 373; Add. 23, 27. Although the verb used is discretionary – “the State may have to purchase” – the court offers no alternative option after rejecting the reasonable proposal of the defendant prison officials.
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The monitoring provisions of the Department’s protocol already require a medical person to assess the consciousness of the condemned prisoner by observation and by means of various clinical techniques, to inspect the catheter site, and to monitor an electrocardiograph machine . App. 216-17; Add. 33-34 (§§E.3 & D.2 to D.3). It is unclear if the district court is suggesting the purchase of “additional equipment” in lieu of these monitoring provisions or in addition to them.
The only equipment discussed in the June hearing was a machine called a “BIS Monitor.” June Tr. 275-76. While North Carolina has used a BIS Monitor, June Tr. 279, it does not appear that it is under a court order to do so. The anecdotal evidence from North Carolina shows that its use of three grams of thiopental (60% of the amount used in Missouri) was sufficient to produce the “lowest measurable level of consciousness [as shown by the BIS Monitor] that one can achieve medically.” June Tr. 280. While a BIS Monitor may be useful, it cannot be constitutionally required by the Eighth Amendment considering that North Carolina is the only state that defendants are aware of that uses one.7 Taylor may reply that the district court did not
7There has been no finding by the district court that such a monitor is even available to Missouri. The maker of the BIS Monitor, Aspect Medical Systems, “is very much opposed to its use in executions for several reasons.” App. 223. “Doctors at Aspect Medical Systems, which makes the device, have said they would not have sold one to the state if they had known its intended use.” http://cftj.org/html/ modules.php?name=News&file=article&sid=1354 (Last visited November 30, 2006).
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mandate use of a BIS Monitor. That may be true, but it leaves the state to guess what “equipment” it may need to purchase.
The district court also required that “any deviations from this written protocol shall be a matter of written record submitted to the appropriate state officials.” App. 374; Add. 28. The court did not articulate its meaning. Who are “the appropriate state officials?” And what is “a matter of written record?” And what if the deviation were deemed necessary by the Director, App. 215; Add. 32 (§B.1), at 11:30 p.m before the execution day opened, or at 11:55 p.m.?
No Risk of Any Pain under Current or Former Lethal Injection Procedures Any deficiencies in the written protocol, or in the previously existing lethal
injection process, are, in any event, all overcome by one overriding fact: the amount of the first chemical injected at an execution, five grams of thiopental, is so massive that there is no risk that the succeeding chemicals will cause any pain to a condemned prisoner. As defendants’ expert, Dr. Dershwitz, testified:
Q. If five grams of thiopental was administered at an execution, and let’s assume that it’s actually brought into the body, is there any need for a monitoring of the anesthetic depth of the condemned prisoner, in your view?
A. I don’t think it’s necessary. Q. And can you tell us why not?
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A. Because it is inconceivable that there’s any human who could possibly remain awake after such a large dose of thiopental being properly administered into a working intravenous catheter.
Q. Would the same be true at a somewhat lower dose of thiopental, say 2.5 grams?
A. Yes. And in fact, I have testified elsewhere that even doses as low as 1.5 grams will provide a high enough probability of unconsciousness so that, in my opinion, an execution would be humane.
(June Tr. 284). Dr. Dershwitz explained the science underlying this conclusion.
A. Well, first of all, unconsciousness will be achieved once the first two to 300 milligrams circulate, and that will take, you know, typically 30 seconds to 45 seconds in the average person. And so as increasing amounts of thiopental are given, from the person’s perspective who is receiving the drug nothing is different because once unconsciousness is achieved, the depth of unconsciousness, although perceptible to a clinician who is looking at an EEG, is not perceptible to a person receiving the drug. And so once the first few hundred milligrams circulate, which typically take 30 to 45 seconds, the person is unconscious and they will remain unconscious for quite a period of time after the rest of the dose is given.
June Tr. 286. Because of the massive amount of thiopental that is given the
condemned, it is not possible that he will be conscious when the other two chemicals
are administered. See Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005),
cert. denied, 543 U.S. 1096 (2005); Evans v. Saar, 412 F. Supp. 2d 519, 521 (D. Md.
2006); Abdur’rahman, 181 S.W.3d at 307-08.
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III. The district court erred in ruling that the Eighth Amendment constitutionally requires that a doctor prepare and administer, or oversee the preparation and administration, of the chemicals used at executions and that a doctor monitor the anesthetic depth of the condemned prisoner because the anesthetic used, thiopental, is simple to prepare and can be appropriately administered by a nurse or emergency medical technician, and the five grams of thiopental administered will render the condemned deeply unconscious and unaware of the administration of the subsequent chemicals and their effects. With or without the assistance of a doctor, executions in Missouri, both as previously conducted and as now formalized in a written protocol, are humane and consistent with the Eighth Amendment, even under the “unreasonable risk” standard applied by the district court. Five grams (in excess of 10 times the typical amount administered for surgical procedures, June Tr. 301 (typical amount of thiopental used in surgical procedures is a few hundred milligrams)) of thiopental are administered in the execution process. App. 215, 217; Add. 32, 34 (§§ B.2 & E.2); June Tr. 301. This amount will render the condemned deeply unconscious (a level of unconsciousness deeper than that used for surgical procedures) and unaware of the
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administration of the subsequent chemicals and their effects. Jan. 30 Tr. 24-26; June Tr. 232-36, 256-57, 273-74; App. 389-414.
Initially, the district court ordered that a board certified anesthesiologist must assist in the execution process. App. 200; Add. 23. The court later modified its order to require the assistance of a doctor “trained in the administration and application of anesthetic drugs” to oversee the preparation and administration of the chemicals used in executions. App. 373; Add. 27. This directive that a doctor must monitor the execution process imposes a condition that is not required by the Constitution.
Eighth Amendment Does Not Demand Doctor at Execution Even if it is possible for the Department of Corrections to find a doctor trained in the use of anesthesia to provide services during executions, the district court legally erred in imposing such a requirement. Assistance of a doctor at an execution has never been determined to be constitutionally required. Because the district court’s order imposed a condition that is not constitutionally necessary, the court exceeded its remedial powers. Although defendants have had difficulty in determining how many states conduct judicially approved executions without the assistance of a doctor, it appears from reported opinions that at least two states engage in lethal injection executions without the presence of a doctor of any kind. Abdur’rahman v. Bredesen, 181 S.W.3d 292, 301 (Tenn. 2005) (describing a process in which the prison warden prepares the
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drugs and a non-physician prison official injects the drugs; a physician is on site only to perform a “cut down” procedure in the event the paramedics, two of whom are present at the execution, are unable to insert an IV in the condemned’s arm), cert. denied, 126 S. Ct. 2288 (2006); Ex parte Aguilar, 2006 WL 1412666, at *4 (Tex. Ct. Crim. App., May 22, 2006) (Concurring Statement notes, but rejects, suggestion of plaintiff’s expert witness that lethal injection procedure “should be performed by and reviewed by doctors”), stay of execution denied sub nom. Aguilar v. Dretke, 126 S. Ct. 2318 (2006). See also Walker v. Johnson, 448 F. Supp. 2d 719, 721 (E.D. Va. 2006) (physician present, but apparently only to pronounce death); Evans v. Saar, 412 F. Supp. 2d 519, 524 (D. Md. 2006) (doctor present throughout execution, but without any apparent role in placing IV, monitoring it, or assessing anesthetic depth). Blaze v. Rees, 2006 WL 3386544 (Ky. Nov. 22, 2006) (phlebotomist or emergerncy technician inserts IV; doctor’s role simply to verify cause of death); Malicoat v. State, 137 P.3d 1234, 1236 (Okla. Crim. App. 2006) (pharmacist mixing chemicals).
Evans v. Saar is the one case defendants have found that examines the issue of whether the assistance of a doctor is required during executions. In that case, the condemned prisoner plaintiff, expressing concern that the execution team members might not be adequately qualified, sought an injunction to stay his execution. 412 F. Supp. 2d at 524. The evidence established that at executions a certified nursing assistant establishes the IV and sees that fluids are flowing properly through the line.
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Id. This person then monitors the execution procedure through a window. Id. The warden and a religious advisor stand near the condemned prisoner from where, although not medically trained, they can determine whether any major problems occur, such as a leak in the IV line. Id. The court found these qualifications adequate and denied the injunction. Id. at 525. See also Bieghler v. State, 839 N.E.2d 691, 695-96 (Ind. 2005) (denying habeas relief despite challenge that state had not developed its execution protocol with input from a person trained in anesthesiology), cert. denied, 126 S. Ct. 1190 (2006).
Neither Taylor nor the district court has identified a state in which a state or federal court constitutionally mandates the use of a doctor to prepare the chemicals or to oversee the mixing of the chemicals. And looking at execution more broadly, neither Taylor nor the district court has shown a decision where the Constitution has been found to require a doctor to have any role in any form of execution: gas, hanging, or electric chair. And looking at capital punishment even more broadly, neither Taylor nor the district court has shown an Eighth Amendment decision that requires any particular person or trade or guild have any particular role with an execution process. That is not to say that the use of such persons is or is not good policy, it only states that it is not a topic that the federal constitution regulates.8
8The district court also required the doctor selected by the state to be “in good standing” with the licensing board and “not have any disciplinary action taken against
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Not even the decision in Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006), aff’d, 438 F.3d 926 (9th Cir. 2006), cert. denied, 126 S. Ct. 1314 (2006), which Taylor has relied on, requires use of a doctor at the execution. Although the court approved the three-drug execution protocol only if a doctor with formal training and experience in the field of general anesthesia took part, it also approved execution by means of a massive dose of thiopental alone or some other barbiturate or combination of barbiturates, without any direction that a doctor be present. 415 F. Supp. 2d at 1047.
Further, the evidence presented to the district court in this case establishes that an execution can occur without unnecessary and wanton pain without the presence of a doctor. The protocol developed by the Department of Corrections complies with this constitutional standard, as well as with the “unreasonable risk” standard used by the district court.
Taylor’s own expert, Dr. Henthorn, testified that once a five gram dose of thiopental takes effect to the level of “burst suppression,” which will likely occur in less than two minutes, “there is no chance that there would be any conscious
them.” App. 374; Add. 28. While that may be good policy, it does not appear to be grounded in the Eighth Amendment. Perhaps another reading of this requirement is that the doctor selected shall not be subject to any disciplinary action by the licensing authority due to participation in an execution. But, if this is what is meant, the district court offers no authority to support its attempt to provide immunity from disciplinary action.
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recognition of pain” by a condemned prisoner as the succeeding chemicals are administered.9 June Tr. 195, 234. “Burst suppression” is complete unconsciousness.
June Tr. 235. Once “burst suppression” is reached following administration of five
grams of thiopental, a person will remain at that level of unconsciousness for a
minimum of 45 minutes (and probably closer to the longer estimate of Dr. Dershwitz, defendants’ expert).10 June Tr. 233-35. And, when that level of unconsciousness is
reached, there is no longer any need to monitor the level of unconsciousness. June
Tr. 236-37.
Dr. Henthorn’s concern with the lethal execution procedure was that the second
two chemicals could be given before the first chemical had enough time to bring the condemned prisoner to the “burst suppression” level of unconsciousness.11 June Tr.
200-01. His studies indicated that “burst suppression” would be reached within three
minutes even for thiopental doses of two grams. App. 1324, 1327-28.
9Even administration of as little as 1.67 grams of thiopental will render almost everyone unconscious to a level of “burst suppression” within minutes. June Tr. 233.
10Of course, with a five gram dose of thiopental, death would result, instead of just unconsciousness, unless the recipient received life support assistance. Jan. 30 Tr. 21-22.
11Ironically, during the initial appeal, Taylor’ theory of the case was that remand for further hearing would show that Missouri’s protocol was too slow because it allowed “the rapid decline of levels of thiopental.” Appellant’s Brief in Taylor v. Crawford, No. 06-1397, at p. 50). Then before the district court, Dr. Henthorn’s analysis was that the speed of injection was too quick. June Tr. 200-01.
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Although defendants’ expert disagrees that “burst suppression” must be
reached before the second and third chemicals may be administered without painful
effect, June Tr. 273-74,12 defendants’ protocol takes into account Dr. Henthorn’s
concern. The protocol provides that the second and third chemicals will not be
administered until at least three minutes have elapsed since administration of the
thiopental. App. 217; Add. 34 (§E.5). Thus, even under Taylor’s evidence, once the
five grams of thiopental called for by the protocol are administered and given time
to take effect, there is no foreseeable risk that the condemned prisoner will experience
unnecessary and wanton pain from the administration of the second or the third
chemicals.13
12“Burst suppression is a much deeper level of unconsciousness than that targeted for surgical procedures. June Tr. 235-36, 273.
13It is also worth considering the old adage that one should not fail to see the forest for the trees. All the appropriate concern shown throughout this case that condemned prisoners be unconscious before the second and third chemicals are administered so that they not be aware of any pain, neglects consideration of whether the pain that might result, in the absence of anesthesia, rises to the level of cruel and unusual punishment. No one has testified that the second chemical, pancuronium bromide, causes pain. The defendants’ expert, Dr. Dershwitz, testified without contradiction that the pain resulting from the third chemical, potassium chloride, entering the heart is comparable to the pain experienced by a person having a heart attack. June Tr. 288-90. The pain, from either the administration of potassium chloride or a heart attack, would last approximately ten seconds. June Tr. 289-90. It should be difficult to conclude that the level of pain experienced by persons having heart attacks, a leading cause of death, is a level of pain that, in the context of a judicially authorized execution, is cruel and unusual.
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Doctor Not Necessary to Assure Proper Administration of Thiopental Taylor has asserted that a doctor must participate in the lethal injection process
to assure that some error in the setting of the IV, difficulty in the mixing of the thiopental, or other untoward event will not prevent the condemned prisoner from actually receiving the full amount of thiopental. Taylor’s challenge, however, fails on several counts.
First, as noted above, “[t]he risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.” Campbell v. Wood, 18 F. 3d 662, 687 (9th Cir. 1994). “The Supreme Court has rejected Eighth Amendment challenges based on an ‘unforeseeable accident.’” Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005) (citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947)). Therefore Taylor’s suggestion that, in the absence of a doctor’s participation, mistakes are possible does not provide any constitutional basis for requiring modifications to the protocol.
Moreover, failure of the IV line to deliver the thiopental as expected is selfcorrecting. If a problem with the IV (such as a kink, a clog, or a leak) stops the thiopental from entering the body, the same problem would also prevent the other two chemicals from entering the body. And if the other two chemicals do not enter the body, they cannot cause any pain to the condemned.
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Additionally, the written protocol developed by the Department of Corrections
implements steps that provide assurance that the thiopental is prepared and
administered appropriately. A doctor, nurse, or pharmacist is to prepare the
thiopental. App. 215; Add. 32 (§A.2). This is a straight-forward matter of mixing a
powder with a liquid found in a manufacturer’s kit. See Evans, 412 F. Supp. 2d at
524-25; Jan. 30 Tr. 30-31. Two IV lines are set by either a doctor, a nurse, or an
emergency medical technician (EMT-intermediate or EMT-paramedic).14 App. 215-
16; Add. 32-33 (§§A.3, C.1). The setting of IV lines is a procedure within the
competence of nurses and EMTs.15 Reid v. Johnson, 333 F. Supp. 2d 543, 546 n.6
14Taylor has expressed concern that medical personnel not trained and experienced in the setting of central lines will be setting central lines under the protocol. But the protocol does not mandate use of central lines. The protocol contemplates that the medical person present for the execution will set only the types of IV lines for which he or she is trained and has experience with. Not only does the protocol not provide for nurses or emergency medical technicians to set central lines beyond their experience and training, but it does not require a doctor to set such a line either. Doctors qualified to set either central or peripheral lines are to exercise their judgment to determine which type of line is most appropriate in the circumstances.
15The provision that permits an EMT to set IV lines and to check them for obstructions is not a step back from previous Department of Corrections practice of obtaining the presence of a doctor at executions. Permitting the medical roles to be filled by an EMT is only a foresighted recognition that there may be a time that the presence of a doctor cannot be obtained. In such a case Corrections will plan to go forward with the execution with the aid of an EMT, just as it would have had a doctor not been available in the past. Missouri’s proceeding with an execution with an EMT, is comparable to Maryland’s use of a certified nursing assistant. Evans, 412 F. Supp. 2d at 524. The intent of the Department of Corrections, however, is to obtain the presence of a doctor at executions if possible.
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(E.D. Va. 2004); State v. Webb, 750 A.2d 448, 452 (Conn. 2000), cert. denied, 121 S. Ct. 93 (2000). At the time the IV lines are set, they are checked to make certain they are not obstructed. App. 216; Add. 33 (§C.2).
The written protocol also provides that, between the administration of the first chemical and the second two chemicals, the medical person who has set the IV line will return to the execution room and directly assess whether the condemned is conscious. App. 217; Add. 34 (§E.3). Although the Department of Corrections prefers to have the assistance of a doctor if possible, in the event that one is not available, a nurse or an emergency medical technician will be present. App. 215; Add. 32 (§A.3). Doctors, nurses, and emergency medical technicians have the ability to assess level of consciousness to the extent that they can be confident that a person is sufficiently unconscious to be unaware of any pain that would normally be the result of noxious stimuli, including the pain expected to accompany the administration of 240 milliequivalents of potassium chloride contained in 120 mL of solution. App. 371B (¶ 8). This is especially so when there is no concern that the level of unconsciousness may be too deep. App. 371B (¶ 8). The direct assessment of the condemned prisoner by the medical person present will provide reasonable assurance that the condemned prisoner will be unconscious when the second and third chemicals are administered and bring any risk of consciousness on the condemned’s part below the level of foreseeable risk of unnecessary and wanton pain.
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The protocol further provides that the medical person present is to examine the IV catheter site following the administration of the thiopental. App. 217; Add. 34 (§E.3). Doctors, nurses, and emergency medical technicians who have set IV lines are qualified to examine their lines and the line entry sites after administration of flush or chemicals to insure that the IV line is operating correctly and that the flush or chemicals have actually entered the blood stream. App. 371A-371B (¶¶ 3-6). By examination of the IV after administration of the thiopental, any risk that the thiopental has not entered the blood stream as expected is negligible.
Given the safeguards incorporated into the protocol, there is no foreseeable risk that the condemned will be subject to unnecessary and wanton pain through any failure to receive the full five grams of thiopental.
Mandating Use of a Doctor Exceeded District Court’s Remedial Powers As shown above, the written protocol developed by the Department of
Corrections provides an ample level of confidence that condemned prisoners executed under its provisions will not be subjected to cruel and unusual punishment.
A court may exercise its equity power only on the basis of a constitutional violation. Swann v. Charlotte-Mecklenburg Bd. of Ed., 91 S. Ct. 1267, 1276 (1971). “The court’s exercise of equitable discretion must heel close to the identified violation and respect ‘the interests of state and local authorities in managing their own affairs, consistent with the Constitution.’” Gilmore v. California, 220 F.3d 987,
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1005 (9th Cir. 2000) (quoting Milliken v. Bradley, 97 S. Ct. 2749, 2757 (1977)). See also Toussaint v. McCarthy, 801 F.2d 1080, (9th Cir. 1986) (“Injunctive relief against a state agency or official must be no broader than necessary to remedy the constitutional violation”), cert. denied, 107 S. Ct. 2462 (1987); 18 U.S.C. 3626(a)(1) (“Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiff”).
The district court’s order to the Corrections defendants to include assistance of a doctor at executions goes beyond its power under these standards. As discussed above, no court has ever found that assistance of a doctor is constitutionally required at an execution. Moreover, there is no necessity here, considering the evidence adduced and the protocol developed by the Department of Corrections, to require the assistance of a doctor at executions in Missouri. Conducting executions under the protocol, with or without a doctor, will result in no reasonably foreseeable risk that the condemned prisoner will experience unnecessary and wanton pain. Thus, the district court’s imposition of a requirement that a doctor take part in executions, was broader than necessary to remedy any justified constitutional concerns. Therefore, the court’s imposition of this requirement exceeded its authority.
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IV. The district court erred in mandating that a doctor assist at executions because compliance with such a requirement could be impossible to fulfill, and thereby effectively bar implementation of the death penalty in Missouri, in that doctor participation in executions is inconsistent with some interpretations of a doctor’s ethical duties. There is also a very practical reason why the district court’s requirement that a doctor be involved in the execution process should be reversed: it may be impossible to find a doctor willing to assist, especially one trained in the administration of anesthesia. Following the court’s June 26 order that a board certified anesthesiologist be found to participate in executions, the reaction of the anesthesiologist community was swift and hostile. The June 30, 2006, message from the President of the American Society of Anesthesiologist to member anesthesiologist is perhaps best summarized by its last two words of advice: “[s]teer clear.” App. 225. So they have. The Department of Corrections sent letters to 298 board certified anesthesiologists in this state and southern Illinois inquiring of their willingness to participate in executions, as outlined by the court’s order. None accepted. App. 219.
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Even assuming the modified order requiring only the participation of a doctor trained in the use of anesthesia widened the pool of candidates, there exists a real possibility that a doctor willing to take part cannot be found. As Taylor alleged in his amended complaint, a doctor’s participation in an execution is a violation of professional ethical standards as interpreted by the American Medical Association. App. 65-66 (¶ 81), 100-01 (AMA’s Code of Ethics, E-2.06). See also Beardslee v. Woodford, 395 F.3d 1064, 1074 (9th Cir. 2005) (“lethal injection executions are hampered by ethical restrictions on physicians, who are prohibited from participating in executions”). The ethical standards of the AMA are not necessarily binding on Missouri’s medical licensing board, but could carry decisive weight with that board in the event charges were filed against a doctor who did participate in an execution. Thus, a requirement that a doctor participate at executions could effectively bar implementation of the death penalty in Missouri.
In response to the Department’s concern that it may be impossible to obtain the services of a doctor at executions, Taylor has presented a journal article showing that a significant portion of doctors have indicated a willingness to take part in executions. App.347-53. But the article addresses only the willingness of doctors in general to take part, rather than of the narrower subset of doctors trained in the use of anesthesia. There is also quite a difference between responding positively to a survey as a general matter and actually agreeing to assist with executions, followed by
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fulfillment of the agreement. Additionally, the article cited was written five years ago and so has questionable relevance to current attitudes of doctors.
Regardless of the difficulty in finding a doctor to participate in executions, the Department of Corrections prefers to have the assistance of a doctor, and continues its efforts to find one who will take part. But, in the event a doctor cannot be found, the written protocol permits the completion of an execution with the participation of a nurse, pharmacist, or emergency medical technician only. App. 215; Add. 32 (§A.2 & A.3). As discussed in Point III, the safeguards included in the protocol that assure the unconsciousness of the condemned prisoner before the administration of the second two chemicals render the services of a doctor unnecessary.
In particular, the examination of the IV line after administration of the thiopental will provide confidence that the thiopental has actually entered the condemned’s blood stream. Then the three minute time lag time between the administration of the thiopental and the administration of the succeeding chemicals will provide confidence that the massive dose of thiopental has had time to take full effect before the succeeding chemicals are administered. These steps, mandated by the protocol, will provide appropriate assurance that the condemned prisoner is completely unconscious before the administration of the second two chemicals and, thereby, render an assessment of anesthetic depth by a doctor a needless redundancy. The protocol, as written, does not subject condemned prisoners to any foreseeable
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risk of unnecessary and wanton pain. The substitution of a nurse, a pharmacist, or an emergency medical technician to carry out the steps committed to medical personnel by the protocol at an execution when a doctor is not available is reasonable and consistent with the Eighth Amendment.
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CONCLUSION
As demonstrated above, Missouri’s lethal injection procedure is consistent with
the Eighth Amendment. The Corrections defendants urge this Court to reverse the
district court’s entry of judgment against them, to vacate the district court’s orders
imposing conditions on, and continuing oversight over, the implementation of their
execution procedure against plaintiff Taylor and other condemned prisoners, and to
remand this case to the district court with instructions to enter judgment in their favor.
Executions in Missouri should be allowed to proceed as provided in its written
protocol.
Respectfully submitted,
JEREMIAH W. (JAY) NIXON Attorney General
MICHAEL PRITCHETT Assistant Attorney General Missouri Bar No. 33848
STEPHEN HAWKE Assistant Attorney General Missouri Bar No. 35242
P. O. Box 899 Jefferson City, Missouri 65102 Telephone No. (573) 751-3321 Fax No. (573) 751-9456
ATTORNEYS FOR APPELLANTS 67

CERTIFICATE OF SERVICE I hereby certify that two true and correct copies of this brief, and a 3½ inch, labeled diskette containing this brief, were mailed, postage prepaid, this 4th day of December, 2006, to: John W. Simon Attorney at Law 2683 South Big Bend Blvd., # 12 St. Louis, MO 63143 C. John Pleban Lynette M. Petruska Attorneys at Law 2010 South Big Bend Blvd. St. Louis, MO 63117 Donald B. Verrilli, Jr. Matthew S. Hellman Ginger Anders Eric Berger Attorneys at Law 601 13th Street, NW, Suite 1200 Washington, DC 20005
______________________________ Assistant Attorney General
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CERTIFICATE OF COMPLIANCE I hereby certify that the text of the foregoing document, excluding the Summary and Request for Oral Argument, the Table of Contents, the Table of Authorities, the Certificate of Service, the Certificate of Compliance, and the Addendum, contains 13,529 words of proportional spacing as determined by the automated word count of the WordPerfect 9 word processing system used and has 14point print size, and that the diskette submitted with the instant brief has been scanned for viruses and is virus-free.
_____________________________ Assistant Attorney General
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 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
NO. 06-3651
MICHAEL ANTHONY TAYLOR, Plaintiff-Appellee,
v. LARRY CRAWFORD, et al.
Defendants-Appellants.
On Appeal from the United States District Court for the Western District of Missouri, Central Division
The Honorable Fernando J. Gaitan, District Judge
BRIEF OF PLAINTIFF-APPELLEE

C. John Pleban Lynette M. Petruska Pleban & Associates, LLC 2010 South Big Bend Blvd. St. Louis, MO 63139

Donald B. Verrilli, Jr. Matthew S. Hellman Ginger D. Anders Eric Berger Jenner & Block LLP 601 13th Street N.W. Washington, DC 20005

Counsel for Plaintiff-Appellee

January 2, 2007

SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT Missouri Department of Corrections (DOC) officials appeal Judge Gaitan’s
determination that their lethal-injection procedures pose a significant and unreasonable risk that Appellee Michael Taylor will suffer an excruciating execution. That ruling should be upheld. The record shows that the DOC has abdicated authority over executions to an incompetent physician who has altered critical elements of the procedure, including the amount of anesthetic given to inmates. These arbitrary variations are so pervasive that DOC officials in this litigation cannot describe accurately even the most basic aspects of its procedures.
The State’s appeal asks this Court to reweigh the evidence heard by Judge Gaitan, and substitute its judgment in crafting a remedy. No basis exists for doing so: the violation finding is amply supported by the record, and Judge Gaitan’s remedy is carefully tailored to fix the systemic problems in Missouri’s execution process in an unobtrusive manner. The DOC’s proposed remedy, in contrast, undertakes no meaningful reforms and suggests that the DOC does not take seriously the grave flaws Judge Gaitan found. The State also asks this Court to adopt an Eighth Amendment standard that would restrict execution methods only when they are both guaranteed and intended to cause pain. That argument is waived as well as refuted by governing precedent.
This Court has set oral argument for 30 minutes per side.
i

TABLE OF CONTENTS
SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT ............i TABLE OF AUTHORITIES .....................................................................................v STATEMENT OF THE ISSUES...............................................................................1 STATEMENT OF FACTS ........................................................................................2 I. PRE-REMAND PROCEEDINGS........................................................................2 II. Remand proceedings.............................................................................................5
A. The Discovery Allowed by the District Court.................................................5 B. Evidence Regarding the DOC’s Conduct of Executions.................................6
1. The DOC’s Abdication of Responsibility for the Execution Procedure. ...................................................................................................7
2. Doe’s Arbitrary and Dangerous Conduct of Executions............................8 a. Administration of Varying Doses of Thiopental...................................9 b. Doe’s Dangerous and Erratic Methods of Obtaining IV Access. .......12
3. Other Members of the Execution Team ...................................................14 C. The Continuation of the Evidentiary Hearing. ..............................................15
1. Taylor’s Case............................................................................................15 2. The DOC’s Case.......................................................................................20
a. Expert Testimony. ...............................................................................20 b. Testimony of DOC Officials. ..............................................................21 D. The District Court’s Decision........................................................................21 III.REMEDIAL PROCEEDINGS. ..........................................................................22 SUMMARY OF ARGUMENT ...............................................................................23
ii

ARGUMENT ...........................................................................................................26
I. THE DISTRICT COURT CORRECTLY FOUND THAT MISSOURI’S EXECUTION PROCEDURES VIOLATE THE EIGHTH AMENDMENT. ...26
A. Standard of Review........................................................................................27
B. The District Court’s Factual Findings Were Not Clearly Erroneous. ...........29
1. Potassium Causes Excruciating Pain........................................................29
2. The DOC’s Procedures are Fraught with Systemic Problems. ................30
a. The DOC Has Abdicated Authority to Doe. .......................................30
b. Doe Is Not Competent to Oversee or Perform the Procedure.............32
c. The DOC Has No Consistent Procedure.............................................33
d. The Drug Delivery Mechanism Risks Improper Administration. ......34
e. The DOC Does Not Monitor Anesthetic Depth..................................35
f. The Procedure as a Whole Subjects Inmates to a Significant Danger of Inadequate Anesthesia........................................................36
C. The Court Correctly Concluded That the Procedure Is Unconstitutional.............................................................................................37
II. THE DISTRICT COURT DID NOT ABUSE ITS REMEDIAL DISCRETION.38
A. Standard of Review........................................................................................38
B. The District Court Did Not Abuse Its Discretion When, Having Found a Constitutional Violation, It Required the DOC To Include a Physician with Training in Anesthesiology To Participate in and Oversee Its Lethal-Injection Procedure. ........................................................39
C. The District Court Did Not Abuse Its Discretion When It Denied the DOC’s Request to Modify the Injunction. ....................................................45
D. The DOC Has Not Taken Adequate Steps To Locate A Physician With Training In Anesthesiology, So Its Objection To That Requirement Is Premature. ............................................................................49
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III.THE DISTRICT COURT APPLIED THE CORRECT EIGHTH AMENDMENT STANDARD............................................................................51 A. Standard of Review........................................................................................52 B. The Eighth Amendment Forbids Execution Procedures That Create An Unreasonable Risk Of Pain......................................................................52 C. Cruel and Unusual Execution Methods Do Not Become Constitutional When They Are Unintended..........................................................................59
CONCLUSION ........................................................................................................62 CERTIFICATE OF COMPLIANCE.......................................................................63 CERTIFICATION OF COMPLIANCE WITH CIRCUIT RULE 28A(d) .............64 CERTIFICATE OF SERVICE ................................................................................65
iv

TABLE OF AUTHORITIES CASES
Anderson v. Bessemer City, 470 U.S. 564 (1985)..........................................1, 28, 49 Antolik v. Saks, Inc., 463 F.3d 796 (8th Cir. 2006) .................................................52 Baze v. Rees, No. 2005-SC-0543-MR, __S.W.3d__, 2006 WL 3386544 (Ky.
Nov. 22, 2006) ....................................................................................................54 Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005), cert. denied, 543
U.S. 1096 (2005).................................................................................................30 Becker v. University of Nebraska, 191 F.3d 904 (8th Cir. 1999) ............................51 Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994)......................................................59 In re Central Arkansas Broadcasting Co., 68 F.3d 213 (8th Cir. 1995) .................29 Cooey v. Taft, 430 F.Supp.2d 702 (S.D. Ohio 2006)...................................29, 54, 60 Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004)............................................54, 55 Estelle v. Gamble, 429 U.S. 97 (1976) ..................................................38, 52, 53, 59 Evans v. Saar, 412 F.Supp.2d 519 (D. Md. 2006).............................................44, 53 Farmer v. Brennan, 511 U.S. 825 (1994)................................................................61 Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996), vacated as moot on other
grounds, 519 U.S. 918 (1996) ............................................................................28 French v. Owens, 777 F.2d 1250 (7th Cir. 1985) ........................................41, 44, 49 Furman v. Georgia, 408 U.S. 238 (1972)................................................................53 Gregg v. Georgia, 428 U.S. 153 (1976) ..................................................................53
v

Heartland Academy Community Church v. Waddle, 335 F.3d 684 (8th Cir. 2003) ...................................................................................................................38
Hutto v. Finney, 437 U.S. 678 (1978)......................................................................39
Jensen v. Clarke, 94 F.3d 1191 (8th Cir. 1996)..................................... 44, 48-49, 61
Jorden v. Farrier, 788 F.2d 1347 (8th Cir. 1986) ...................................................53
In re Kemmler, 136 U.S. 436 (1890) .......................................................................57
LaGrand v. Stewart, 173 F.3d 1144 (9th Cir. 1999)................................................60
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947)......................56, 57, 60
Malicoat v. State, 137 P.3d 1234 (Okla. Crim. App. 2006) ....................................57
Morales v. Hickman, 415 F.Supp.2d 1037 (N.D. Cal. 2006), aff’d, 438 F.3d 926 (9th Cir. 2006), cert. denied, 126 S. Ct. 1314 (2006)......................42, 43, 60
Morales v. Hickman, 438 F.3d 926 (9th Cir. 2006), cert. denied, 126 S. Ct. 1314 (2006)...............................................................................................1, 28, 43
Morales v. Tilton, No. 06-219, __ F.Supp.2d __, 2006 WL 3699493 (N.D. Cal. Dec. 15, 2006) ......................................................................1, 24, 25, 30, 36, 37, 42, 43, 48, 54
Morgan v. Rabun, 128 F.3d 694 (8th Cir. 1997) .....................................................42
RCA/Ariola International, Inc. v. Thomas & Grayston Co., 845 F.2d 773 (8th Cir. 1988).....................................................................................................39
Robinson v. GEICO General Insurance Co., 447 F.3d 1096 (8th Cir. 2006) .........27
Smith v. Arkansas Department of Correction, 103 F.3d 637 (8th Cir. 1996) ....1, 38, 39, 41, 44, 45
Surgidev Corp. v. Eye Technology, Inc., 828 F.2d 452 (8th Cir. 1987) ..................46
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).............38
vi

Trop v. Dulles, 356 U.S. 86 (1958)..........................................................................52 United States v. Gomez-Perez, 452 F.3d 739 (8th Cir. 2006) .................................35 United States v. Hernandez, 281 F.3d 746 (8th Cir. 2002) .....................................28 United States v. Santee Sioux Tribe of Nebraska, 254 F.3d 728 (8th Cir.
2001) ...................................................................................................................51 Unitherm Food System, Inc. v. Swift-Eckrich, Inc., 126 S. Ct. 980 (2006).............28 Weems v. United States, 217 U.S. 349 (1910) .........................................................58 Wilkerson v. Utah, 99 U.S. 130 (1878)....................................................................57 Wiser v. Wayne Farms, 411 F.3d 923 (8th Cir. 2005).............................1, 51, 55, 59 Youngberg v. Romeo, 457 U.S. 307 (1982) .............................................................41
CONSTITUTIONAL PROVISIONS & STATUTES U.S. Const. amend. VIII.......................................................................................1, 52 Mo. Ann. Stat. § 335.016(7) ....................................................................................14 Mo. Ann. Stat. § 335.016(9) ....................................................................................14 Mo. Ann. Stat. § 578.005(7) ....................................................................................41 Mo. Ann. Stat. § 578.007(7) ....................................................................................41 Mo. Ann. Stat. § 578.012.........................................................................................41
MISCELLANEOUS Clinical Forum: Medicalizing executions places anesthesiologists on
slippery slope, ASA Daily News 2006, Oct. 15, 2006, available at http://www.asadailynews.com/Sunday.html (last visited Dec. 31, 2006)..........50
vii

Fla. Exec. Order No. 06-260 (Dec. 15, 2006)..........................................................24 Jeremy Kohler, Behind the Mask of the Mo. Execution Doctor, St. L. Post-
Dispatch, July 29, 2006, available at http://www.stltoday.com/stltoday/ news/special/srlinks.nsf/0/0903CBDA66BF5D22862571BC007C4F67? OpenDocument (last visited Dec. 20, 2006).........................................................6 Brian Witte, Maryland Told to Explore Using Doctors for Executions, Baltimore Sun, Dec. 6, 2006, available at http://www.baltimoresun.com/ news/local/bal-deathpenalty1206,0,5637317.story?coll=bal-localheadlines (last visited Dec. 19, 2006).................................................................44 Ron Word, Official Says Florida Execution was Botched, Yahoo! News, Dec. 15, 2006, available at http://news.yahoo.com/s/ap/20061215/ ap_on_re_us/florida_execution (last visited Dec. 19, 2006) ..............................19 16 Charles Alan Wright et al., Federal Practice and Procedure (2d ed. 1996) ...................................................................................................................46
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STATEMENT OF THE ISSUES
I. Whether the district court, on the facts before it, properly found that Missouri’s lethal-injection procedure violates the Eighth Amendment. Anderson v. Bessemer City, 470 U.S. 564 (1985) Morales v. Tilton, No. 06-219, __F.Supp.2d__, 2006 WL 3699493 (N.D. Cal. Dec. 15, 2006)
II. Whether the district court, given its finding of an Eighth Amendment violation, abused its discretion in issuing its injunction and in rejecting the Defendants’ revised written protocol. Smith v. Arkansas Dep’t of Correction, 103 F.3d 637 (8th Cir. 1996) Morales v. Hickman, 438 F.3d 926 (9th Cir. 2006), cert. denied, 126 S. Ct. 1314 (2006)
III. Whether the district court applied the proper Eighth Amendment standard, and whether this argument has been waived by the Defendants. U.S. Const. amend. VIII Wiser v. Wayne Farms, 411 F.3d 923 (8th Cir. 2005)
1

STATEMENT OF FACTS Michael Taylor filed the instant action on June 3, 2005, alleging that Missouri’s execution procedure subjects him to a significant and unnecessary risk of excruciating pain, thereby violating the Eighth Amendment’s ban on cruel and unusual punishment. In January 2006, the district court rejected Taylor’s claims on the basis of an extremely limited record. After this Court, in April 2006, remanded this case for supplementation of the record, Mr. Taylor presented new compelling evidence of systemic failures plaguing the DOC’s execution process. Judge Gaitan then reversed his earlier decision and concluded that the DOC’s procedures subject condemned prisoners to cruel and unusual punishment. I. PRE-REMAND PROCEEDINGS. After Taylor filed this action, he obtained limited discovery over the DOC’s objections. On January 3, 2006, six days after the court denied the DOC’s motion to dismiss, the State set his execution for February 1, 2006. In late January 2006, the district court held an emergency hearing on the merits. The evidence presented at the January hearing was necessarily limited in scope.1 Virtually all Taylor knew about the procedure at the time was that, according to the testimony of DOC officials, the DOC accomplished executions by administering 5 grams of thiopental, 60 milligrams of pancuronium bromide, and
1 That evidence is part of the record in this case. DOC_App_I:148-54. 2

240 milliequivalents of potassium chloride.2 1/31/06_Tr_67-69. These drugs are administered through an IV inserted in the femoral vein, which is located deep beneath the skin in the groin. Responsibility for the execution procedure is vested in Doe 1 (“Doe”), a surgeon, and Doe 2, a licensed practical nurse, as well as Does 3 and 5, nonmedical personnel. Id. 66-67, 80.
The first drug administered is thiopental, an ultra-short acting barbiturate anesthetic. 1/30/06_Tr_11, 14. If successfully administered in sufficient dose, thiopental will cause deep unconsciousness and, eventually, death. 1/31/06_Tr_18-19, 32. The second drug administered, pancuronium bromide, masks all visible suffering by paralyzing the inmate’s voluntary muscles, including the diaphragm. 1/30/06_Tr_73; 1/31/06_Tr_22-23. If injected into a conscious person, pancuronium would cause the agonizing feeling of conscious paralysis and suffocation. 1/30/06_Tr_27. To observers, however, the person would appear tranquil. 1/30/06_Tr_73. The last drug injected, potassium chloride, is the actual agent of execution, as it induces cardiac arrest. 1/31/06_Tr_23; 1/30/06_Tr_29. It was uncontested that when administered in concentrations sufficient to stop the heart, potassium is extraordinarily painful, causing an excruciating burning sensation in the veins and lungs. 1/30/06_Tr_29; 1/31/06_Tr_23.
2 That testimony turned out to be wrong, as discussed below. 3

Because both pancuronium and potassium cause extreme suffering if injected into a conscious individual, the induction of anesthesia is crucial to ensuring a humane execution. If the injection of the intended dose of thiopental is not completely successful, or does not result in deep anesthesia, the inmate will experience conscious suffocation and excruciating pain. 1/31/06_Tr_58. Without discovery into how the DOC actually accomplished executions, Taylor was unable to test whether the DOC’s actual practices ensured adequate anesthesia. At the conclusion of the hearing, Judge Gaitan rejected Taylor’s claims on the ground that Taylor had not established that inmates were at risk of inadequate anesthesia. DOC_Add_6.
This Court, sitting en banc, subsequently stayed Taylor’s execution. After briefing and argument, this Court concluded that Taylor “was unable to make the record he felt necessary for the full and fair consideration of the merits of his case” at the January hearing. This Court therefore remanded the case to Judge Gaitan for “further discovery” and “a continuation of the hearing held on January 30-31, 2006.” DOC_App_I:154. The district court was given 60 days in which to reconvene the evidentiary hearing and issue an opinion “amending, modifying or restating” its judgment on the merits.
4

II. REMAND PROCEEDINGS. On remand, Taylor uncovered and presented evidence that the DOC has
conducted executions in an arbitrary, dangerous manner, creating a significant risk
of excruciating pain. Judge Gaitan’s findings to this effect were made on the basis of a limited record, as he severely — and erroneously, in Taylor’s view — restricted the scope of discovery on remand. Even the limited discovery, however,
demonstrated the DOC’s institutional failure to take even the most basic steps to ensure that executions were performed consistently and humanely.
A. The Discovery Allowed by the District Court. After two teleconferences on the scope and timing of discovery, Judge
Gaitan ordered that Taylor could receive only the following narrow discovery: execution records from the previous six executions; a limited deposition of Director Crawford; interrogatory responses from Crawford and Does 1 through 5;
and an inspection of the DOC’s execution facility. Taylor_App_31-33. Judge Gaitan repeatedly denied requests to depose Does 1 through 5, the members of the execution team, as well as other non-anonymous DOC employees.3
3 The district court also denied all discovery regarding Doe’s malpractice and licensing history, DOC_App_III:638, despite evidence that he had been reprimanded by a medical licensing authority, DOC_App_II:446. It is now apparent that the DOC opposed these efforts in the hopes of covering up extremely damaging details regarding Doe’s background. See DOC_App_II:447-48. A July newspaper article eventually exposed Doe’s problems, including his loss of privileges at two hospitals and a public reprimand authorized by the Missouri
5

The discovery ordered revealed that Doe, the doctor who oversees executions, had prepared only 2.5 grams of thiopental for Taylor’s scheduled execution and for the execution of Marlin Gray. This evidence directly contradicted the DOC’s representations to this Court and the district court that it always administered a dose of 5 grams of thiopental — including representations, made in court 24 hours before Taylor’s execution, that it would use 5 grams on Taylor. 1/31/06_Tr_67, 74-75; Taylor_App_20-30. After Doe offered several contradicting written explanations for lowering the thiopental dose, DOC_App_II:442-43; DOC_App_III:627, Judge Gaitan permitted Taylor to take, in the Court’s presence and under its supervision, a limited two-hour anonymous deposition of Doe. Taylor_App_37-38; Taylor_App_39-41. No other discovery was permitted.
B. Evidence Regarding the DOC’s Conduct of Executions. Even this truncated discovery revealed that the DOC has treated the execution procedure with callous disregard, abdicating all responsibility to the manifestly incompetent Doe. He has performed the most important aspects of the procedure in a dangerous, unpredictable manner. This evidence shattered the DOC’s previous representations regarding its procedures, and utterly belies the
Attorney General’s office. See Jeremy Kohler, Behind the Mask of the Mo. Execution Doctor, St. L. Post-Dispatch, July 29, 2006, available at http://www.stltoday.com/stltoday/news/special/srlinks.nsf/0/0903CBDA66BF5D2 2862571BC007C4F67?OpenDocument (last visited December 20, 2006).
6

DOC’s description of a regularized and careful process in its brief to this Court, DOC_Br_18-21.
1. The DOC’s Abdication of Responsibility for the Execution Procedure.
The DOC vested complete responsibility for designing and overseeing the execution procedure in Doe in the early 1990s, after “a very difficult execution … which caused a flurry in the press and embarrassment to the prison.” DOC_App_III:654. The DOC did not provide Doe with any assistance, and in designing the current procedure, Doe did not consult with anyone, including persons knowledgeable about anesthesia. DOC_App_III:654; DOC_App_III:657. It was Doe who decided to use femoral catheterization in all executions; determined drug doses; and designed the drug delivery apparatus. DOC_App_III:646-67, 650, 655, 717; DOC_App_IV:826. The DOC acquiesced in all of these decisions without even discussing their merits with Doe. Instead, Doe communicated his intentions through non-medical execution personnel, and the DOC then implemented them. DOC_App_III:717; DOC_App_III:698, 718.
Doe also had unfettered discretion over how executions were carried out. In every execution, Doe inserts the femoral catheter; mixes the thiopental into solution; prepares the syringes of thiopental and the other drugs; and oversees the actual injection of the drugs. DOC_App_IV:812-14. Though Crawford has ultimate responsibility for each execution, neither he nor other DOC officials
7

observes Doe’s conduct during executions, and Crawford testified that he simply defers to Doe on execution nights. DOC_App_IV:814; DOC_App_III:699, 74041. Indeed, because the DOC has no source of medical expertise other than Doe, the DOC has no choice but to rely completely on Doe. DOC_App_III:698-99. As Doe summed up his role, the Director is “relying on me to keep him looking good, to use his terms directly.” DOC_App_III:697.
2. Doe’s Arbitrary and Dangerous Conduct of Executions. Because the DOC allows Doe to exercise his authority over Missouri executions in an arbitrary, unpredictable manner, crucial elements of the procedure have varied from execution to execution. According to Doe, the DOC’s primary objective in performing executions is to ensure that death occurs quickly, and that no observable incident occurs that would cause witnesses to ask Crawford what happened. DOC_App_III:730 (“[The DOC doesn’t] want to wait 25 minutes with witnesses standing around wondering what happened.”); DOC_App_III:656. Doe therefore believed, and the DOC never gave him reason to doubt, that he could alter any aspect of the execution process, even to make the procedure more dangerous, so long as the alteration was undetectable to witnesses. DOC_App_III:658, 664, 739-40.
8

a. Administration of Varying Doses of Thiopental. Most crucially, Doe has varied the dose of thiopental from execution to execution, and there is no way of determining how much thiopental was actually administered in any execution. Contrary to the DOC’s in-court representations, its execution records, read in conjunction with Doe’s testimony, reveal that in five of the past six executions, Doe prepared substantially less than 5 grams of thiopental. DOC_App_V:1111-12; DOC_App_III:644-49. Because Doe has always operated without oversight, he assumed that changing the thiopental dose was within his authority, and he never informed the DOC. DOC_App_III:626. Doe testified that at previous executions, he intended to administer less than 5 grams of thiopental. DOC_App_III:646. Although the DOC’s records indicate that he could have prepared thiopental doses ranging between 2.5 and 4 grams, Doe admitted that may have actually mixed substantially less than that for injection at each execution. DOC_App_III:649 (“[W]e have no provision for showing that we disposed of three [grams] and gave two, or disposed of two and gave three, because this [record] has not been set up that way.”); DOC_App_III:651-52. Doe found thiopental to be a “difficult drug” to prepare, DOC_App_III:656, and decided to use a lower dose after he had difficulty fully dissolving 5 grams, DOC_App_III:649. When pressed about the precise doses he prepared, Doe refused to estimate, and stated he that did not recall.
9

DOC_App_III:649-51. Doe also admitted that he was dyslexic and had considerable trouble making calculations and keeping track of numbers. DOC_App_III:659-60, 663. In sum, there is no way of knowing how much thiopental Doe prepared for any particular execution, and no guarantee that he always — or ever — prepared a minimally adequate dose.
When Doe first encountered problems mixing the thiopental, he did not bring the issue to the DOC’s attention, apparently because he felt pressure to ensure that each execution went forward:
I go to the execution chamber and we’re on a time frame. I have minutes to get the drugs ready, minutes to ensure a perfect IV. There’s no time to call the drug company at midnight, the Director or nursing staff to change. I am required to deal with what I am given and make it come out right and make this — make it happen I guess is best way to say it …. I was able to modify what I was given and [the Director] was totally unaware that there was any change in dosage. DOC_App_III:664. Doe also did not investigate why the thiopental purchased by the DOC was not soluble, or request new thiopental, even though the manufacturer warns against using insoluble thiopental, DOC_App_V:1251. DOC_App_III:680. In any event, Doe believed that the precise dose of thiopental used in executions was unimportant for two reasons. First, Doe stated that because lowering the dose of thiopental did not make a “visible difference” in the appearance or length of the execution, the “total dose [of thiopental] to me was insignificant.” DOC_App_III:658. Of course, the paralytic effect of the
10

pancuronium would ensure that witnesses would be unable to tell even if no thiopental were administered, because the execution would still appear peaceful. Doe noted as much, stating that his goal in performing executions was to perform them “with no apparent suffering that the public can observe, which they will make the most of.” DOC_App_III:658.
Second, Doe felt that it was not necessary to induce general anesthesia during executions. DOC_App_III:692, 710. He believed that even an overdose of thiopental would be insufficient to guard against extreme pain, DOC_App_III:68990, but that this did not matter in an execution because he injected the potassium within inches of the heart, DOC_App_III:696,4 and in any event inmates would be paralyzed, DOC_App_III:692.
Despite Doe’s conviction that he had acted properly in reducing the thiopental dose without notifying the DOC, Doe initially denied that he had reduced the dose, and the DOC conveyed that denial to the court. Taylor_App_3436; DOC_App_V:1325-26. After Doe recanted, his explanation for doing so evolved in response to Taylor’s and the Court’s inquiries. At first, Doe stated that he changed the dose “because … other jurisdictions considered a dose of … 5 grams to be larger than necessary.” DOC_App_437. Later, Doe stated that he had reduced the dose because of difficulty dissolving the thiopental.
4 This assertion is demonstrably incorrect given the equipment used. June_Tr_61. 11

DOC_App_III:627. Finally, in his testimony, Doe admitted for the first time that he had lowered the dose of thiopental in at least five of the six executions for which Taylor received discovery, and that he did not know how much he had given. DOC_App_III:646.
In sum, there is no way to know how much thiopental was prepared in any execution. Doe’s understanding of the DOC’s overriding objective of avoiding scrutiny, his inability to recall the doses, dyslexia, misapprehension about the need for anesthesia in executions, and misrepresentations to the district court, raise serious questions as to whether he ever prepared an adequate dose of anesthetic. And because all inmates were given pancuronium and no autopsies were performed, there was no way to discern at the time, and no means of reconstructing now, whether these inmates were adequately anesthetized.
b. Doe’s Dangerous and Erratic Methods of Obtaining IV Access.
Doe testified that he uses a highly invasive form of IV access, femoral catheterization, rather than placing the standard peripheral IV in the elbow, because it “allow[s] rapid infusion of the drugs by nonmedical people,” DOC_App_III:719, thereby facilitating quick executions. But because the femoral vein is buried deep within the upper thigh, femoral catheterization is much riskier than peripheral access, and accordingly is not the first-choice method of catheterization in any other state. June_Tr_109. Indeed, it is undisputed that a
12

number of extremely painful and life-threatening complications can immediately result from femoral catheterization. 1/30/06_Tr_63; June_Tr_141-42. The DOC acquiesced in Doe’s decision to use femoral access, apparently without considering whether the procedure increased medical risks. DOC_App_III:716-18; June_Tr_354-55.
Doe botched the femoral catheterization in at least one of the last six executions.5 Photographs revealed that Timothy Johnston, prior to his death, experienced significant bleeding and a hematoma, a painful and potentially severe condition that can arise when the femoral artery is pierced or lacerated. Compare Taylor_App_64-65 (Johnston: hematoma) with Taylor_App_66 (Smith: no apparent complications). As blood pools beneath the skin, it exerts pressure on the surrounding nerves and tissue, causing potentially severe pain. June_Tr_47, 50, 157. Doe, however, refused to acknowledge that this complication had arisen, in part because he believes (incorrectly) that such complications are impossible when he performs the procedure. DOC_App_III:712, 724. When asked what he would do if an inmate experienced severe bleeding and a hematoma during attempted catheterization, Doe replied that he would not treat it: “He’s got two legs.” DOC_App_III:713-14.
5 Because Taylor was denied discovery into the additional executions in which Doe inserted a femoral catheter it is impossible to determine the true rate of complications caused by Doe.
13

Doe also revealed that in one execution, he had inserted the catheter in the subclavian vein, a procedure that involves a distinct set of potential immediate and agonizing complications, including suffocating as one’s chest fills up with air and blood. DOC_App_III:740; June_Tr_54-55. Doe admitted that he performed the procedure even though he knew that to do so safely would require additional equipment that the DOC did not have, as well as “significant modification of the facility.” DOC_App_III:735. In other words, Doe concededly chose to place an inmate in danger of an agonizing death.6
3. Other Members of the Execution Team Although Taylor received virtually no discovery into the other execution team members, it is apparent that they have little or no medical training and operate at the direction of Doe. Doe 2 is a licensed practical nurse (LPN). 1/31/06_Tr_67. Under Missouri law, LPNs are non-professionals with minimal medical training who must work under the direct supervision of a physician or registered nurse. Mo. Ann. Stat. § 335.016(7), (9). All that is known about Doe 2’s conduct is that despite his responsibility for helping Doe prepare the thiopental, DOC_App_IV:812, he did not realize that Doe prepared lower doses, DOC_App_II:465.
6 Because this incident did not occur within the last six executions, Taylor does not know whether any complications occurred.
14

Does 3 and 5, who inject the drugs during executions by alternating syringes, have no medical training. DOC_App_IV:814; DOC_App_III:666. Because only Doe has significant medical training, he mixes the thiopental “because it’s very difficult for someone who is not used to this to accomplish it,” DOC_App_III:665, and he also directs the others’ actions, DOC_App_III:667 (“That’s the first time probably in their life they [Does 3 and 5] have picked up a syringe, and it’s a Luralock twist connector and then they have a separate clamp where they have to clamp and unclamp the tubing, so it’s a little stressful for them to be doing this.”).
C. The Continuation of the Evidentiary Hearing. In June 2006, Judge Gaitan reconvened the evidentiary hearing, which focused on medical-expert testimony as to whether the DOC’s execution practices subject inmates to an unreasonable risk that they will not be successfully anesthetized.
1. Taylor’s Case. Taylor’s expert testimony established that the DOC’s careless and inconsistent execution procedures unreasonably fail to ensure adequate anesthesia, thereby subjecting inmates to a significant and needless risk of excruciating pain. Missouri’s practices fail to ensure: reliable, consistent preparation of the full intended dose of non-defective thiopental; successful delivery of that thiopental
15

through patent IV tubing and a properly placed catheter into the inmate’s circulation; and sufficient anesthesia prior to the injection of the pancuronium and potassium and throughout the execution.
Dr. Mark Heath, an anesthesiologist and expert in lethal-injection procedures nationwide, testified that inmates faced a substantial danger of inadequate anesthesia as a result of the DOC’s abdication of responsibility to Doe and its failure to maintain a written protocol. June_Tr_17-19, 64-65, 82. Dr. Heath testified that Doe is “completely lacking in the credentials and qualifications and knowledge, skill set and experience to be entrusted with the delivery of general anesthesia, especially in an incredibly important thing like an execution.” Id. 83; id. 21, 65. Dr. Heath’s opinion was based on Doe’s numerous factually incorrect statements about femoral catheterization, potassium, thiopental, and anesthesia in general. Id. 27-33, 39, 44, 59-64. In addition, Doe’s dyslexia leaves him unable to deliver anesthesia because he cannot reliably calculate dosages, or keep track of how much thiopental he has mixed. Id. 34, 42.
Doe’s lack of anesthesia training and incompetence directly increase inmates’ risk of excruciating death because Doe prepares the thiopental in a manner that is “very sloppy and … reflects a lack of understanding of the importance of the quantity of drugs that are being given,” id. 24-25; id. 21. Neither Dr. Heath nor Dr. Thomas Henthorn, Taylor’s other expert anesthesiologist, could
16

discern from Doe’s testimony how much thiopental he had administered in any execution, and both believed, based on the process that Doe described, that it may have been considerably less than 2.5 grams. Id. 23, 219, 222. In addition, the fact that Doe had trouble dissolving the thiopental suggested that the drug may have been defective and therefore devoid of anesthetic properties. Id. 36-38. Thus, several inmates may have been given defective thiopental and remained fully conscious during their executions. Id.
Moreover, Dr. Heath, Dr. Henthorn, and Dr. Stephen Johnson, an interventional radiologist who has performed thousands of femoral catheterizations, all concluded that Doe had demonstrated extremely poor medical judgment in numerous respects that each increased the likelihood of severe pain. These included deviating from standard medical practices in mixing the thiopental, id. 42; administering insoluble thiopental, id. 40-41; failing to record the doses of thiopental administered, id. 24-25; inserting a subclavian line without the proper equipment, id. 54-57; opting to use the more invasive, dangerous femoral catheterization even though it was medically unnecessary, id. 84-85, 144, 161, 228-29; and planning to treat a hematoma by letting it bleed out, a medically unaccepted and needlessly painful approach, id. 157-58. In sum, Taylor’s three medical experts all concluded that Doe’s behavior places inmates in significant danger of suffering excruciating pain. Id. 65, 161-68, 224.
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Even if Doe were to prepare an adequate dose of non-defective thiopental, the manner in which the drugs are injected creates the risk that the full dose will not successfully be delivered. Id. 82. Doe may be unable to insert the femoral catheter properly because he performs the procedure only during executions. Id. 50, 53. Similarly, the catheter’s efficacy could be hindered by a complication such as a hematoma like the one suffered by Timothy Johnston, id. 157, resulting in an infiltration that prevents an adequate dose of thiopental from reaching the vein, id. 196.7 The fact that nonmedical personnel inject the drugs in the dark while holding flashlights, increases the risk of injecting the drugs in the wrong order or manipulating the syringes improperly, resulting in infiltration or tubing disconnection. Id. 81-82.
Moreover, the drug delivery apparatus is needlessly contorted, increasing the likelihood of IV failures and vitiating the team’s ability to detect those failures. Id. 68, 196. The use of 8 to 9 feet of IV tubing, without an IV bag, compounds the likelihood of IV tubing problems, such as leaks and kinking. Id. 77-78. The inmate is alone in the execution chamber and the execution team has only an obstructed view, through partially closed blinds and one-way glass, of the top of the inmate’s head. Id. 72-76. The team cannot observe any signs of IV problems or distress from this vantage point, because a sheet covers the IV tubing, the 7 Infiltration occurs when the catheter is not fully within the vein, so that some of the drugs go into the surrounding tissue instead of into the vein. June_Tr_81.
18

catheter site, and the inmate himself, and an absorbent pad would conceal leaking
drugs or blood. Id. 72-76, 98-101. Thus, if any IV problems prevented the full
8
administration of the thiopental, the team would not detect it, and the
pancuronium would then prevent the inmate from indicating that he was still
conscious.
Dr. Henthorn, one of the country’s foremost experts on thiopental, testified
that even if the full intended dose of thiopental were successfully administered,
some inmates likely were not deeply anesthetized during their executions, because
his analysis of the onset of drug effect demonstrated that the potassium was
injected before the thiopental fully anesthetized them. Id. 199-222.
Both Dr. Heath and Dr. Henthorn testified that the only way to reasonably
ensure that inmates were adequately anesthetized prior to the administration of
8 In this Court, the DOC attempts to assert a new theory, not presented at trial, that if IV problems prevent the inmate from receiving an adequate dose of thiopental, the other drugs necessarily will not reach the inmate either. DOC_Br_58. This is incorrect. An infiltration, leak, or other IV problem could result in, for instance, only 40% of each of the drugs reaching the inmate’s circulation. The inmate would then receive a dose of thiopental insufficient to cause deep unconsciousness, but sufficient pancuronium and potassium to cause paralysis and excruciating pain (and death), respectively. That infiltration can cause an inhumane execution is definitively demonstrated by the recent Florida execution of Angel Diaz, who moved about, grimacing in pain, for 24 minutes following the injection of thiopental. Mr. Diaz’s IVs were infiltrated, resulting in extensive chemical burns and requiring additional doses of the drugs. See Ron Word, Official Says Florida Execution was Botched, Yahoo! News, Dec. 15, 2006, available at http://news.yahoo.com/s/ap/20061215/ ap_on_re_us/florida_execution (last visited Dec. 18, 2006).
19

pancuronium and potassium was to have a trained person assess the inmates’ anesthetic depth. Id. 70-71, 107-09, 196. This was particularly necessary in light of the problems plaguing the execution process, and the numerous points at which mistakes or irregularities committed by Doe or other team members could result in the failure to deliver adequate anesthetic. Id.
2. The DOC’s Case. a. Expert Testimony.
Dr. Mark Dershwitz, an anesthesiologist, testified that although Doe had “made some pharmacological mistakes,” as long as he managed to prepare 1.5 to 2 grams of thiopental, the dose would be adequate. June_Tr_335. Dr. Dershwitz speculated that Doe might have had trouble dissolving the thiopental because he was attempting to use too high a concentration, although he conceded he could not be certain. Id. 339.
With respect to the need to monitor anesthetic depth, Dr. Dershwitz opined that assuming that five grams of thiopental were “properly administered into a working intravenous catheter,” and the thiopental actually reached the inmate’s circulation, there would be no need to monitor anesthetic depth because all persons given five grams would be deeply unconscious. Id. 284. He also described occasions where medical exigencies force anesthesiologists to induce anesthesia without monitoring anesthetic depth. Id. 269-70. When asked what “justifies
20

taking the increased risk of not monitoring anesthetic depth” in an execution setting, Dr. Dershwitz responded, “That’s not for me to decide.” Id. 313.
b. Testimony of DOC Officials. Both Director Crawford and Terry Moore, the Director of Adult Institutions, testified that they were disappointed that Doe had changed the dose of thiopental without their knowledge. Crawford testified that the DOC would “firm … up” the procedure by specifying in writing the doses of each chemical (including a 5-gram dose of thiopental). The actual procedure — the personnel, drug preparation, administration, and method of IV access — would remain exactly the same, and would not be committed to writing. Both Crawford and Moore reaffirmed their confidence in Doe, and indicated their intent to retain him as the head of the execution team. Id. 377 (“I have known [Doe] to be bright, professional …”); id. 357. Crawford saw no need to consult with any medical personnel about the protocol, moreover, because he believed that executions are not “medical procedure[s] that require[] somebody to undergo anesthesia or to be rendered unconscious,” and in any event, the DOC is not equipped to do procedures requiring anesthesia. Id. 381. D. The District Court’s Decision. On June 26, Judge Gaitan ruled that Missouri’s execution procedure created an unnecessary risk of inflicting extreme pain and suffering on inmates, and
21

therefore violated the Eighth Amendment. The court found that there were “numerous problems” plaguing the execution procedure, and these problems foreseeably placed inmates in danger of excruciating pain. DOC_Add_20-22.
In order to remedy the Eighth Amendment violation, Judge Gaitan ordered the State to adopt certain changes to its lethal-injection procedures. In principal part, the court ordered the State to promulgate a written execution protocol in consultation with an anesthesiologist; retain an anesthesiologist who would monitor anesthetic depth during executions, prepare the drugs, and determine the method of IV access; and develop a contingency plan and an auditing process. The DOC was to submit its new protocol to the court by July 15, 2006. III. REMEDIAL PROCEEDINGS.
On July 14, 2006, the DOC submitted its proposed protocol, which it concedes does not comply with Judge Gaitan’s June 26th order. Most importantly, the protocol does not provide for any effective monitoring of anesthetic depth and retains the same personnel, including Doe. Taylor opposed the proposed protocol because it did not meaningfully address the numerous problems afflicting the existing system.
On September 12, 2006, Judge Gaitan issued an order rejecting the proposed protocol in relevant part, on the ground that it did not remedy the Eighth Amendment violation because it did not provide for effective monitoring of
22

anesthetic depth. DOC_Add_27. The Court modified its previous order to allow the State to retain either an anesthesiologist or a physician with sufficient training in the administration of anesthesia to perform the monitoring function and oversee executions. Recognizing that the DOC planned to continue using Doe, the court also barred his participation in future executions. DOC_Add_27. Shortly thereafter, the DOC moved for reconsideration. Judge Gaitan denied the motion, noting that the State had indicated its “lack of willingness to even attempt to comply with the Court’s order.” DOC_Add_31. The DOC appealed.
SUMMARY OF ARGUMENT Taylor established at trial that the execution procedures employed by the DOC violate the Eighth Amendment by creating an unreasonable risk of an excruciating execution. Judge Gaitan found that the DOC has abdicated its responsibility for the execution procedure to an incompetent physician who does not understand the chemicals used and who has arbitrarily varied crucial elements of the procedure. As the court concluded, the DOC’s institutional failures are so extensive that it has been unable accurately to represent the nature of the procedure or even discern how much anesthetic it administers. Accordingly, Judge Gaitan imposed reasonable remedial measures, ordering the DOC to use a physician trained in anesthesia to monitor anesthetic depth.
23

Judge Gaitan’s conclusions and injunction are in step with growing judicial and executive concerns over the implementation of lethal injection. In midDecember, following a bench trial that revealed evidence of incompetence and disregard similar to that demonstrated by Taylor, the district court in Morales v. Tilton concluded that California’s lethal-injection procedures violated the Eighth Amendment. No. 06-219, __F.Supp.2d__, 2006 WL 3699493, at *8 (N.D.Cal. Dec. 15, 2006) (“Morales III”). Similarly, in Florida, a badly botched execution prompted Governor Bush to declare a moratorium pending investigation by a commission composed of medical and other experts. Fla. Exec. Order No. 06-260 (Dec. 15, 2006) (Taylor_Add_1-4).9
Despite this increasing recognition that lethal injection, if not implemented in a careful, professional manner, can be as torturous as barbaric methods long ago abandoned, as well as the overwhelming evidence that the DOC’s procedures are systemically flawed, the DOC has continued to insist that a few cosmetic changes to its procedures can remedy the deficiencies. As the Morales III Court noted when faced with similar obduracy, however, the DOC’s “unwillingness to see the situation for what it is and be proactive is self-defeating.” 2006 WL 3699493, at *10 n.13. Judge Gaitan’s conclusions are supported by extensive evidence, and his remedy provides a sensible, minimally intrusive solution to fundamental problems.
9 Both California and Florida use the same three-drug sequence as Missouri. 24

Thus, as in Morales, the DOC’s interests would be better served by complying with the injunction than by its present intransigence. Id. *8-*9.
Nevertheless, the DOC now challenges Judge Gaitan’s ruling on three grounds. Mischaracterizing the record and ignoring the deferential clear-error standard of review that applies to all of Judge Gaitan’s findings, the DOC asserts that Judge Gaitan erred in finding that the DOC’s procedures created an unreasonable risk of excruciating pain. The DOC’s contentions are meritless. Judge Gaitan’s findings are amply supported by his evaluation of extensive factand expert-witness testimony.
The DOC next contends that Judge Gaitan abused his discretion in ordering the DOC to recruit a physician qualified to monitor inmates’ anesthetic depth. Far from being an abuse of discretion, however, the court’s remedy is the best solution to the DOC’s systemic inability to ensure that inmates are adequately anesthetized: By monitoring anesthetic depth, the physician can prevent the procedures’ numerous problems from resulting in excruciating pain. Nor was Judge Gaitan’s refusal to approve the DOC’s manifestly unacceptable proposed protocol — which does not provide for monitoring of anesthetic depth, retains Doe, and continues the numerous flaws in the existing procedure — an abuse of discretion.
Finally, the DOC argues, for the first time on appeal, that the Eighth Amendment is violated only upon a showing that an execution procedure is certain
25

to inflict pain on every inmate, and only where prison officials intend to cause pain. These arguments were not presented to the district court and are therefore waived. And even if they were properly presented here, the State’s novel propositions are also refuted by Eighth Amendment jurisprudence and common sense. The standard applied by Judge Gaitan, that the Eighth Amendment prohibits execution procedures that create a significant and unreasonable risk of unconstitutional pain, regardless of intent, is supported by the case law. Under the DOC’s standard, the theoretical possibility that a needlessly dangerous execution procedure could be carried out without causing pain would exempt it from constitutional review, no matter how many executions were actually painful. For all these reasons, Taylor respectfully requests this Court to affirm Judge Gaitan’s rulings.
ARGUMENT I. THE DISTRICT COURT CORRECTLY FOUND THAT MISSOURI’S
EXECUTION PROCEDURES VIOLATE THE EIGHTH AMENDMENT. Judge Gaitan’s conclusion that the DOC’s execution procedures create a significant and unreasonable risk of excruciating pain is compelled by overwhelming evidence in the record. The district court applied the correct legal standard — that execution procedures involving an unreasonable risk of
26

excruciating pain are unconstitutional,10 DOC_Add_26, DOC_Add_22 — to its factfindings that the DOC’s procedures are systemically flawed and create a substantial risk of excruciating pain.
In arguing that the court erred in finding a constitutional violation, the DOC pervasively mischaracterizes Judge Gaitan’s factual findings. In actuality, the court resoundingly rejected both the DOC’s factual assertions and its expert testimony regarding the risk of excruciating pain. Judge Gaitan’s findings, which can be overturned only if clearly erroneous, are based on his evaluation of the credibility and demeanor of Doe, Crawford, and Moore; his review of the videotaped inspection of the execution chamber and other evidence; and his assessment of expert medical testimony regarding the risks created by the DOC’s failures.
A. Standard of Review. This Court reviews the district court’s factfindings after a bench trial for clear error, and its conclusions of law de novo. Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1101 (8th Cir. 2006). Under the clear error standard, this Court must affirm if the district court’s findings are “plausible,” and may reverse only if after reviewing the record it “is left with the definite and firm conviction that a 10 Perhaps realizing that it cannot prevail against the weight of the evidence, the DOC argues, for the first time on appeal, that Judge Gaitan applied an incorrect Eighth Amendment standard. This argument is both waived and incorrect. See infra Part III.
27

mistake has been committed.” Anderson v. Bessemer City, 470 U.S. 564, 573-76 (1985) (quotation marks omitted). The district court’s evaluation of witnesses’ demeanor and credibility is entitled to great deference. United States v. Hernandez, 281 F.3d 746, 748 (8th Cir. 2002); Unitherm Food Sys., Inc. v. SwiftEckrich, Inc., 126 S. Ct. 980, 986 n.3 (2006) (appellate courts should “be constantly alert to the trial judge’s first-hand knowledge of witnesses, testimony, and issues”).
The DOC attempts to obscure the application of clear-error review by mischaracterizing Judge Gaitan’s review of the evidence as entirely a “legal” inquiry. DOC_Br_39-40. That effort fails. The court’s findings of the “numerous problems” plaguing the execution procedure, DOC_Add_20, are plainly findings of fact, as is the court’s finding that these problems create a significant risk of inadequate anesthesia. See Morales v. Hickman, 438 F.3d 926, 929 & n.6 (9th Cir. 2006), cert. denied, 126 S. Ct. 1314 (2006) (“Morales II”). The Court’s ultimate characterization of the risk as unreasonable and unconstitutional, DOC_Add_22, 26, is a mixed question of law and fact subject to de novo review. See Fierro v. Gomez, 77 F.3d 301, 306 (9th Cir. 1996), vacated as moot on other grounds, 519 U.S. 918 (1996).
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B. The District Court’s Factual Findings Were Not Clearly Erroneous.
Judge Gaitan correctly held that the DOC’s execution procedure violates the Eighth Amendment on the basis of the following factfindings, all of which have ample support in the record and none of which is clearly erroneous.
1. Potassium Causes Excruciating Pain. Relying on the January testimony of both Taylor’s experts and the DOC’s expert, Dr. Dershwitz, Judge Gaitan correctly found that potassium “will cause excruciating pain as it is administered through the inmate’s veins.” DOC_Add_15; 1/30/06_Tr_29, 56 (Dershwitz: potassium would be “extremely painful” “between the time it’s injected and the time the heart stops”); 1/31/06_Tr_23; June_Tr_58, 190. The DOC apparently takes issue with the Court’s finding, DOC_Br_57 n.13, pointing to Dershwitz’s June testimony that potassium might not be very painful. June_Tr_288-90. Judge Gaitan’s decision to credit Taylor’s experts and Dershwitz’s January testimony is entitled to great deference, however, see In re Central Arkansas Broadcasting Co., 68 F.3d 213, 215 (8th Cir. 1995), and is buttressed by Dershwitz’s inability to support his change in testimony with any scientific evidence, June_Tr_322-24. See Cooey v. Taft, 430 F.Supp.2d 702 (S.D. Ohio 2006) (noting growing evidence calling many of Dershwitz’s assertions “into question”).
29

Judge Gaitan also correctly found, on the basis of unanimous medical
testimony, that pancuronium would paralyze the inmate, rendering him unable “to
show that he was experiencing discomfort [from the potassium].” DOC_Add_15.
2. The DOC’s Procedures are Fraught with Systemic Problems.
Having found that conscious inmates would be subjected to “torturous”
suffering, DOC_App_II:354, the court correctly identified the key factual issue in
the case as whether the DOC’s procedures reliably ensure that general anesthesia is successfully induced.11 DOC_Add_15, 20; see Beardslee v. Woodford, 395 F.3d
1064, 1074 (9th Cir. 2005), cert. denied, 543 U.S. 1096 (2005); Morales III, 2006
WL 3699493, at *5. The evidence unequivocally demonstrates, and Judge Gaitan
correctly found, that the execution procedures are systemically flawed, rendering
the DOC incapable of ensuring adequate anesthesia.
a. The DOC Has Abdicated Authority to Doe. Judge Gaitan first found that the DOC had delegated “total discretion for the
execution protocol” to Doe, and that there “are no checks and balances or
oversight.” DOC_Add_20-21. The DOC contends that these findings are clearly
erroneous because Crawford testified at trial that he had “the authority to set the
11 Thus, the DOC’s repeated assertion, see DOC_Br_49-50; 55-57, that a 5-gram dose of thiopental is more than sufficient to cause unconsciousness — which is undisputed — simply begs the question whether the DOC can ensure that the 5gram dose (or some adequate dose) is actually prepared correctly, administered successfully into the inmate’s circulation, and given time to take effect.
30

method of execution.” DOC_Br_43; June_Tr_363. The record demonstrated, however, that Crawford’s authority is merely nominal: he, like previous directors, has rubber-stamped Doe’s conduct of executions, unfailingly deferring to Doe’s decisions regarding fundamental elements of the procedure. DOC_Add_18-21; DOC_App_III:717-19. Indeed, by the DOC’s own admission, it has always been “dependent” on Doe as the only authority on the procedure. June_Tr_342 (Moore); id. 367-68 (Crawford); DOC_Add_20-21; DOC_App_III:697-99. Moreover, Doe clearly operated with no meaningful supervision, as he repeatedly altered the procedure without the DOC’s approval. DOC_Add_20.
The DOC also asserts that it established that Doe would not have unbridled authority in the future because Crawford testified that he would clarify that only he had the authority to approve changes to the procedure. DOC_Br_43. Crawford and Moore also testified, however, that they intended to continue to defer to Doe’s judgment and that they had “confidence” in his “capabilities.” DOC_Add_19; June_Tr_387-89 (Crawford); id. 353, 356, 360 (Moore); DOC_App_III:731-32.
Moreover, the DOC did not present any evidence that it intended to meaningfully limit Doe’s total control over the procedure on execution nights. See DOC_Add_20; June_Tr_351-53, 381-82. Indeed, DOC officials conceded that, with no medical background of their own, they would not be able to assess Doe’s exercise of medical judgment with respect to drug preparation or any other
31

execution-night decision. See DOC_Add_20; June_Tr_346-47, 351-53. Thus, Doe would continue to control the procedure in the only way that matters here: his decisions and errors would determine whether or not executions were performed humanely. Judge Gaitan’s findings to this effect are overwhelmingly supported in the record as a whole.
b. Doe Is Not Competent to Oversee or Perform the Procedure.
Judge Gaitan next found that Doe, whose deposition testimony the court heard first-hand, is not capable of ensuring that inmates will be properly anesthetized. DOC_Add_21 (court was “gravely concerned” about Doe’s competence). Because the process of preparing the drugs for administration “involves precise measurements and the ability to use, decipher, and not confuse numbers,” DOC_Add_21, Doe’s dyslexia and admittedly frequent calculation errors render him unable to prepare and administer anesthesia reliably. DOC_Add_21; DOC_App_III:659-60, 663, 685. These findings are not clearly erroneous. To the contrary, they are supported by extensive expert testimony regarding Doe’s numerous material errors and inability to prepare thiopental. See supra at 15-17.
The DOC complains that the Court “refers to no episode where Dr. Doe accidentally gave an incorrect amount of thiopental.” DOC_Br_44. In fact, Doe admittedly gave an incorrect amount of thiopental in five of the last six executions.
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Indeed, Doe was unable even to state what dose he administered in any of these executions. Having heard first-hand Doe’s testimony regarding his difficulties and
12
uncertainty about how much thiopental he prepared, as well as Taylor’s experts’ concerns, Judge Gaitan’s finding that Doe is incompetent and unable to reliably prepare adequate thiopental cannot possibly be clearly erroneous.
c. The DOC Has No Consistent Procedure. The Court found that the execution procedure “as it currently exists is not carried out consistently and is subject to change at a moment’s notice.” DOC_Add_20. That finding is indisputable, as Doe had repeatedly altered the procedure at his whim; his dyslexia creates unpredictability by preventing him from reliably preparing the doses; and he testified that he was “still improvising” with respect to the execution procedure. DOC_Add_18, 20-21. Moreover, the DOC had never attempted to regularize its procedures by creating a written protocol. DOC_Add_20.13
12 The DOC mischaracterizes Doe’s testimony when it asserts that the “record reflected” that Doe had administered at least 2.5 grams at all executions. DOC_Br_42. Doe’s testimony reveals that, as Taylor’s experts testified, it is impossible to determine how much thiopental Doe gave, and it may have been less than 2.5 grams. June_Tr_21, 222. 13 The DOC urges that the Eighth Amendment does not require a written protocol. DOC_Br_41. Whether or not that is the case, the record supports the court’s factual determination that the DOC’s failure to institute a written protocol contributed to the arbitrariness of its procedures. DOC_Add_16-17, 20; DOC_App_III:704-5.
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The DOC argues that Crawford testified that he would remedy this failure by memorializing “[t]he chemicals, their amounts, and the order of administration.” DOC_Br_41. The DOC does not provide any basis, however, for finding clearly erroneous the court’s conclusion that the variability in the procedure was the result of the DOC’s grant of unchecked authority to Doe and his incompetence. DOC_Add_18, 20. Simply writing down the doses would not address the arbitrariness of the procedure, because Doe’s awareness of the doses he was required to administer had not prevented him from making alterations in the past. DOC_Add_18, DOC_App_644-45.
d. The Drug Delivery Mechanism Risks Improper Administration.
Judge Gaitan found that the DOC’s system of remote drug administration creates the danger of erroneous administration. He noted Doe’s testimony that “the people who do the injections are nonmedical and they’re in the dark so they have a small flashlight,” as well as the impossibility of observing the inmate from the execution support room. DOC_Add_18, 21-22 (quoting Doe 31). The court also heard expert testimony that the lack of “visibility of what they’re doing [is] a completely needless set-up for a problem,” as it risks syringe errors and prevents any observation of IV problems or inmate distress. June_Tr_82. In ordering that execution personnel must be able to “see which drugs are being administered,” and
34

that observation must be improved, then, the court found that the drug delivery system created a danger of erroneous administration. DOC_Add_23.
The DOC apparently does not challenge this finding. DOC_Br_46. e. The DOC Does Not Monitor Anesthetic Depth.
Finally, Judge Gaitan found that the DOC does not monitor inmates’ anesthetic depth in order to “ensure that [they have] received an adequate dose of anesthesia before the other two chemicals are administered.” DOC_Add_21-22. Although Doe testified that he could monitor anesthetic depth by viewing the inmate’s face through a window, Judge Gaitan rejected that testimony based on his review of videotaped simulations of each team member’s view into the execution chamber. DOC_Add_21-22 (it would be “almost impossible” for Doe to observe facial expression).
The DOC challenges Judge Gaitan’s assessment of the videotaped demonstration based on its own opinion of that evidence. DOC_Br_45. Judge Gaitan’s rejection of testimony is “virtually unreviewable on appeal,” however, United States v. Gomez-Perez, 452 F.3d 739, 743 (8th Cir. 2006) (quotation marks omitted), and his evaluation of tangible evidence cannot be rejected simply because the DOC disagrees. Moreover, the court’s conclusion is also supported by expert testimony that Doe is unqualified to monitor anesthesia and that facial
35

expression is in any event not a reliable means of monitoring. June_Tr_72-76, 83, 197-98, 239.
f. The Procedure as a Whole Subjects Inmates to a Significant Danger of Inadequate Anesthesia.
The court found that taken together, these “numerous problems” in the execution procedure create a risk of inflicting excruciating pain, because there is significant potential for inmates to be inadequately anesthetized. DOC_Add_20. The court found that the risk present here was of sufficient magnitude to leave the court “gravely concerned” about the likelihood of error. DOC_Add_21-22. Far from being clearly erroneous, these findings are compelled by the record.
The problems described above materially impede the DOC’s ability to induce general anesthesia successfully. The anesthetic Doe manages to prepare is delivered by nonmedical personnel through a convoluted, cumbersome drugdelivery apparatus allowing no visual observation, much less anesthetic monitoring. The DOC’s use of this dangerous system, combined with substantial doubts as to whether inmates have been adequately anesthetized in the past, compels the conclusion that inmates face a significant risk of inadequate anesthesia. June_Tr_71, 196; see Morales III, 2006 WL 3699493, at *7-*8. Though the danger of botched executions resulting from the DOC’s system is facially evident, the court’s conclusions are buttressed by medical expert testimony that these systemic problems create a significant risk that inmates will be
36

inadequately anesthetized or subjected to painful complications of central access. June_Tr_65, 81-83, 142, 168, 190.
C. The Court Correctly Concluded That the Procedure Is Unconstitutional.
Judge Gaitan correctly found that the significant risk of excruciating pain created by the DOC’s execution procedures is undue and unconstitutional. DOC_Add_22. The substantial danger is the direct, foreseeable result of the DOC’s conscious choices and failure to take available steps to reasonably minimize that risk. See Morales III, 2006 WL 3699493, at *7.
The DOC has chosen to use an excruciatingly painful execution method — potassium — despite the existence of painless alternative lethal-injection methods. See 1/31/06_Tr_18-19, 23. The only way to avoid the certain infliction of pain using this method is to ensure that inmates are adequately anesthetized. This standard is achievable; potassium executions need not risk excruciating pain if performed with adequate safeguards.
The DOC’s multiple failures, however, have resulted in an unjustifiably high risk of excruciating pain. Instead of acknowledging and minimizing the foreseeable danger of inhumane executions, the DOC has instituted a needlessly dangerous system, while displaying a shocking lack of interest, much less diligence, as to whether its procedures reasonably ensure adequate anesthesia. June_Tr_374-75, 381. This is an unreasonable way to run any state function, much
37

less one as grave and solemn as carrying out executions. In light of the extreme pain that will result from inadequate anesthesia and its manifest preventability, the significant risk the DOC’s procedures create is unreasonable and “incompatible with … evolving standards of decency.” DOC_Add_13-14 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). II. THE DISTRICT COURT DID NOT ABUSE ITS REMEDIAL
DISCRETION. A. Standard of Review. In a court-tried case where equitable relief is sought, this Court reviews the district court’s grant of an injunction for abuse of discretion.14 Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 689-90 (8th Cir. 2003). “Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971). The district court’s discretion is exceeded only where it “rests its conclusion on clearly erroneous factual findings or if its decision relies on erroneous legal conclusions.” Smith v. Arkansas Dep’t of Correction, 103 F.3d 637, 644 (8th Cir. 1996) (internal quotation marks omitted). The district court’s exercise of remedial discretion is thus closely intertwined with the district court’s factual findings
14 The DOC neglects to mention this applicable standard of review. See DOC_Br_26.
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regarding the violation. See Hutto v. Finney, 437 U.S. 678, 686-87 (1978)
(emphasizing district court’s “ample authority” to fashion remedies based on
“severity” of established violations); Smith, 103 F.3d at 646. “[A]ppellate review
is correspondingly narrow.” RCA/Ariola Int’l, Inc. v. Thomas & Grayston Co.,
845 F.2d 773, 780 (8th Cir. 1988).
B. The District Court Did Not Abuse Its Discretion When, Having Found a Constitutional Violation, It Required the DOC To Include a Physician with Training in Anesthesiology To Participate in and Oversee Its Lethal-Injection Procedure.
Judge Gaitan’s decision to require, as a remedial matter, that the DOC obtain
the services of a physician trained in anesthesiology to assess anesthetic depth is
grounded in, and justified by, the same record that required him to amend his January ruling and find a violation.15 Taylor presented extensive evidence that the
procedure’s systemic problems foreclose any assurance that inmates will be
adequately anesthetized. See supra Part I. Remedying these problems is hardly
simple, because the DOC’s longstanding abdication of responsibility for the safety
of the execution procedure leaves it unequipped to respond effectively now.
Neither Doe nor any other DOC employee understands the risks of the procedure,
15 Judge Gaitan’s June 26 order required that the DOC employ a board-certified anesthesiologist, DOC_Add_23, but on September 12 he modified that requirement, broadening it to include “physician[s] with training in the application and administration of anesthesia.” DOC_Add_27. Both requirements were well within the court’s remedial discretion. This discussion addresses the latter requirement. See infra Part II.D.
39

the nature and dangers of the drugs, or the need to ensure adequate anesthesia. That situation persists despite the DOC’s opportunity to learn, through this litigation, about these issues, as is evident from Crawford’s and Moore’s testimony and the DOC’s belief that merely specifying the drug doses would remedy all problems. June_Tr_351-52, 356-57, 372, 381; DOC_App_III:659-60, 692, 710.
Based on the record established at trial, Judge Gaitan reasonably determined that neither the DOC’s supervisory personnel nor Doe and other execution personnel could reasonably be entrusted to fix the pervasive problems in the execution procedures or perform executions constitutionally. Indeed, even were the DOC to attempt to design such a protocol, Judge Gaitan recognized that DOC employees’ past conduct and present recalcitrance provided ample reason to conclude that they would ignore or be unable to follow the new instructions.16 DOC_Add_20-21; June_Tr_19. Judge Gaitan therefore reasonably found that effective monitoring of anesthetic depth by a qualified professional is the best way to ensure that any errors, deviations from the protocol, misconduct, or drug delivery failures will not result in inadequate anesthesia. This conclusion was
16 Astoundingly, the DOC stated after the trial that if the full dose of thiopental could not be mixed in the future, it would once again deviate from its stated procedures without warning and administer an indeterminate lower dose of insoluble thiopental. DOC_App_II:369. The DOC’s disregard of the evidence that this precise conduct creates a serious risk of inadequate anesthesia indicates the need for anesthetic monitoring to guard against pain caused by such arbitrariness.
40

supported by the testimony of Taylor’s expert anesthesiologists.17 June_Tr_71,
107, 196-198. Taylor also presented extensive evidence that only persons who
have advanced training in anesthesiology can perform anesthetic monitoring, particularly on paralyzed patients.18 See, e.g., Doc_App_II:249-50; June_Tr_at 26,
196. By providing effective monitoring, the DOC would ensure that whatever
goes wrong during the procedure, the inmate will not receive the painful drugs until he is sufficiently anesthetized.19
Thus, the court’s injunction was an eminently reasonable, effective remedy
for an intractable problem, and as such clearly not an abuse of discretion. See
French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985); Smith, 103 F.3d at 645.
Indeed, when medical expertise must inform an institution’s conduct, as Crawford
concedes is true of lethal-injection executions, June_Tr_382-83, 390, it is certainly
reasonable for courts to require that decisions be made by a “professional,”
“competent” decision maker. Youngberg v. Romeo, 457 U.S. 307, 323 & n.30
(1982) (institution would be liable if decision about involuntarily committed
17 The DOC’s expert’s testimony is not to the contrary; Dershwitz testified that monitoring is not necessary assuming that 5 grams of thiopental reaches the circulation – which is precisely what Judge Gaitan found the DOC is unable to ensure. June_Tr_284. 18 In contrast, EMTs, nurses, and physicians without training in anesthesia are not qualified to monitor anesthetic depth. See DOC_App_II:251. 19 Indeed, Missouri veterinarians cannot euthanize animals using potassium without monitoring anesthetic depth. See Mo. Ann. Stat. § 578.005(7), -007(7),012.
41

ward’s care was not “made by persons with degrees in medicine or nursing, or with appropriate training”); Morgan v. Rabun, 128 F.3d 694, 697-98 (8th Cir. 1997).
Nor is Judge Gaitan’s remedy unduly burdensome. The court recognized that the DOC needed either to monitor the inmate’s anesthetic depth to ensure against pain, or dramatically change the procedure to ensure that the anesthetic was delivered properly. DOC_Add_27. Had the court opted not to require monitoring, it would have had two options for changing the procedure to minimize the risk of pain. One approach would have been to impose detailed instructions about how to fix each step of the procedure. See supra. But this option would likely have been a futile exercise, and would require extensive judicial supervision. See Morales III, 2006 WL 3699493, at *9 (detailing systemic changes in consultation with independent experts and suggesting Governor oversee revision process in light of DOC’s incompetence and recalcitrance). A second course would have been to order the DOC to stop using pancuronium and potassium and instead execute using only a massive dose of thiopental. See Taylor_App_51; DOC_Br_56 n.10; see also Morales v. Hickman, 415 F.Supp.2d 1037, 1047 (N.D. Cal. 2006) (“Morales I”) (same), aff’d, 438 F.3d 926 (9th Cir.), cert. denied, 126 S. Ct. 1314 (2006); Morales III, 2006 WL 3699493, at *10. But the Court deferred to the DOC’s desire to continue using the three-drug protocol. DOC_Add_26. Thus, the Court’s chosen remedy — ordering that one qualified individual ensure that none of the
42

procedure’s problems results in inadequate anesthesia — is, compared to its other options, both unintrusive and eminently reasonable.20
Nor is this remedy anomalous. In Morales II, the Ninth Circuit refused to
find it an abuse of discretion for the district court to have ordered that an
anesthesiologist “take all medically appropriate steps necessary to ensure”
unconsciousness. Morales II, 438 F.3d at 931. As here, the Morales district court
recognized that such a step was needed to ensure sufficient anesthesia and, hence, the constitutionality of this same three-drug sequence.21
The DOC contends that the Eighth Amendment does not require that a
trained professional monitor anesthetic depth. DOC_Br_52. This misses the point.
Anesthesiologists are not constitutionally required to participate in all lethal-
injection executions, as Judge Gaitan recognized. DOC_Add_27. But that does
not mean that it is an abuse of discretion for the district court to require one as an
exercise of remedial discretion where, as here, it has found a constitutional
violation based on findings that the current procedure fails to ensure sufficient
20 Morales III recognized that California had these same three options. 2006 WL 3699493, at *9-10. 21 It is true, as the DOC points out, that the Morales court presented the DOC with a choice of employing an anesthesiologist or eliminating pancuronium and potassium. See Morales I, 415 F.Supp.2d at 1047-48. But this merely confirms that Judge Gaitan’s remedy was among the appropriate options. That California chose the anesthesiologist option over using the one-drug procedure further demonstrates that Judge Gaitan’s remedy was not only permissible but may be preferable to a department of corrections.
43

anesthetization and the DOC intends to continue using drugs which indisputably
cause pain and suffering upon administration to a conscious person.22 This Court
observed this distinction in Smith. There, the district court found that the prison
had breached its constitutional obligation to take reasonable steps to protect
inmates from brutal violence. Smith, 103 F.3d at 644-45. Having found a
violation, the court then granted injunctive relief requiring the defendants to station
additional guards in the prison’s open barracks. Id. 642. Reviewing for an abuse
of discretion, this Circuit held that this remedy would not be constitutionally
required in every case, but was “reasonable” in light of the evidence of the
constitutional violation. Id. 646; see also Jensen v. Clarke, 94 F.3d 1191, 1200-01
(8th Cir. 1996); French, 777 F.2d at 1252.
22 For this reason, the cases cited by the DOC in support of its argument, DOC_Br_52-53, are inapposite. In those cases, courts found, usually without the benefit of any discovery, that the lethal-injection procedures at issue did not create an unreasonable risk of pain. It was therefore unnecessary to consider whether anesthetic monitoring was necessary. The case on which the DOC most heavily relies, Evans v. Saar, 412 F.Supp.2d 519, 524 (D. Md. 2006), demonstrates the invalidity of the DOC’s argument. There, the court refused to grant a preliminary injunction on Evans’ lethal-injection claim. Subsequently, however, the court conducted a bench trial, at which Evans presented extensive evidence that the procedures are unreasonably dangerous. The court is now considering whether to remedy the violation by ordering that an anesthesiologist monitor executions. See Brian Witte, Maryland Told to Explore Using Doctors for Executions, Baltimore Sun, Dec. 6, 2006, available at http://www.baltimoresun.com/news/local/baldeathpenalty1206,0,5637317.story?coll=bal-local-headlines (last visited Dec. 19, 2006).
44

Just as remedy in Smith could not be reversed as an abuse, so too must the
district court’s anesthesia-monitoring requirement stand. Indeed, the remedy in
Smith was far more intrusive than the district court’s: it commandeered trained
correctional officers for a particular purpose, thus taxing a limited prison resource
and interfering directly in prison administration and security. Given that the DOC
has already brought in an outsider (Doe) to participate in dozens of executions,
Judge Gaitan’s requirement that the DOC recruit another professional of its
choosing surely does not so impose on these interests.
In light of the procedure’s “numerous” flaws, the deference that must be
afforded that factual finding, and the court’s broad equitable discretion, this remedy cannot possibly be an abuse of discretion.23
C. The District Court Did Not Abuse Its Discretion When It Denied the DOC’s Request to Modify the Injunction.
Instead of trying to comply with the court’s injunction, the DOC submitted a
protocol that sought to redefine the remedy — a thinly veiled request for the
district court to modify its injunction. The standard for reviewing an order
23 The DOC also misses the point when it contends that the Eighth Amendment does not require the doctor selected to be in good standing. See DOC_Br_54-55 & n.8. Once again, this requirement emerges from the scope of the violation. The DOC’s last doctor, Doe, performed the procedure so dangerously that Judge Gaitan felt compelled to bar his participation in executions. See DOC_Add_27. Given the DOC’s poor record in selecting execution personnel, Judge Gaitan’s requirement that the doctor be in good standing is entirely appropriate and manifestly not beyond the scope of the violation. See Smith, 103 F.3d at 646. See also supra note 3.
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refusing to modify an injunction is the same abuse of discretion standard used to review decisions to grant an injunction in the first place. See 16 Charles Alan Wright et al., Federal Practice and Procedure § 3924.2, at 212 (2d ed. 1996); see also Surgidev Corp. v. Eye Tech., Inc., 828 F.2d 452, 458 (8th Cir. 1987). The court’s rejection of the written protocol cannot be deemed such an abuse.
The DOC’s written protocol neither complies with the court’s injunction nor rescues the procedure from its manifest flaws. As noted above, the district court required the DOC to monitor the inmate’s anesthetic depth using a qualified professional. The DOC’s protocol does not do so. Instead, it proposes monitoring inmates with “medical personnel” — that is, a doctor, nurse, or EMT. Taylor presented extensive evidence, however, that personnel without formal training in anesthesiology are unable to monitor anesthetic depth, particularly in paralyzed inmates.24 June_Tr_69, 85; DOC_App_II:252-53. In rejecting the DOC’s monitoring plan, Judge Gaitan also rejected the DOC’s assertions that personnel without anesthesia training can effectively monitor anesthetic depth.25 DOC_Add_27. Moreover, the proposed protocol allows the existing personnel, including Doe, to perform the monitoring function, see Protocol at 1, despite their
24 The written protocol lists some clinical techniques for monitoring anesthetic depth, Protocol at 3, but those techniques cannot be competently applied by someone without training in anesthesiology. See DOC_App_II:252. 25 The DOC fails to acknowledge this point. DOC_Br_60.
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track record of incompetence.26 Far from constituting an abuse of discretion, the district court was well within its authority to reject the DOC’s monitoring plan.27
Nor does the proposed protocol attempt to remedy the procedure’s other
“numerous problems,” DOC_Add_20-21, instead affixing a few cosmetic changes
onto an irreparably broken system. To understand the proposed protocol’s
deficiencies, one must understand the nature of Judge Gaitan’s remedy. Aside
from requiring the DOC to have a qualified physician undertake anesthetic
monitoring, Judge Gaitan sensibly entrusted many important specifics of the new
procedure to the discretion of the physician in consultation with the DOC.
DOC_App_I:200-01. That approach makes eminent sense, as the overriding flaw
in the DOC’s current system is that it is run by personnel — from the Director to
the execution team members — who do not understand the procedure and its risks.
Thus, even aside from the lack of anesthetic monitoring, the DOC’s proposal
undermines Judge Gaitan’s carefully calibrated remedy. The written protocol
26 Tellingly, the DOC has never disavowed its intent to continue using existing personnel, including Doe, to perform executions. See June_Tr_387-89 (Crawford intends to continue using same personnel, including Doe); see generally DOC_App_II:360-71. 27 The DOC argues that its monitoring was adequate because Doe, who is untrained in anesthesiology, could see the inmate’s facial expression through a window from another room. See DOC_Br_45. The DOC’s continued intention to rely on an unqualified person to monitor anesthetic depth through a window, despite the court’s findings, demonstrates that the DOC cannot be trusted to perform this procedure without the addition of a qualified professional.
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cannot be evaluated in isolation as an abstract document, because it must always be given effect by the personnel who carry it out. That is particularly the case here, as the protocol, like the injunction itself, leaves much to the discretion of the execution personnel, including, inter alia, IV access, thiopental preparation, drug administration, and inmate observation. DOC_Add_32-34. Instead of having that discretion exercised by a physician with the anesthesia training necessary to understand the risks of the procedure, as Judge Gaitan contemplated, the DOC envisions vesting discretion in Doe and the same unqualified, untrained personnel who have always deferred to him.
The DOC’s proposed protocol thus perpetuates the grave flaws that prevent the DOC from even being able to ensure compliance with its own procedures. Indeed, Judge Gaitan made extensive findings that the DOC’s personnel were both unwilling and unable to perform their tasks properly.28 The DOC also intends to use the same convoluted drug delivery apparatus that simultaneously creates a risk of problems and hinders detection of those problems. June_Tr_77-78. Far from obviating the need for the court’s injunction, the written protocol thus demonstrates that the DOC will not change unless forced to do so. See Jensen, 94 28 For example, the new protocol, extraordinarily, permits Doe to prepare the drugs, even though the court found that the procedure is complicated and Doe is incompetent to perform it. This problem cannot be cured merely by delegating the preparation to another member of the team, because no one on that team possesses the necessary skills and qualifications. DOC_App_III:665; see also Morales III, 2006 WL 3699493, at *6-*7 (registered nurse unable to mix thiopental).
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F.3d at 1200-01 (citing defendants’ inadequate remedial plan as evidence that violation would continue); French, 777 F.2d at 1254.
The district court therefore correctly found that this new protocol created significant risk of suffering. See DOC_Add_27. This factfinding is reviewed for clear error and cannot be reversed so long as Judge Gaitan’s view of the evidence is plausible. See Anderson, 470 U.S. at 573. The court’s view is unquestionably “plausible.” Accordingly, its rejection of the new protocol and refusal to modify the injunction cannot be an abuse of discretion.
D. The DOC Has Not Taken Adequate Steps To Locate A Physician With Training In Anesthesiology, So Its Objection To That Requirement Is Premature.
The DOC argues that the district court erred in mandating that a physician with training in anesthesiology assist during executions, because it could be impossible to comply with such a requirement, thus effectively barring implementation of the death penalty in Missouri. The DOC, however, has made only the most minimal effort to comply, sending out 298 “cold-call” letters to local anesthesiologists by regular mail just eight days before it announced that it was unable to retain anyone. There are tens of thousands of anesthesiologists in the United States; a cursory letter to 298 does not remotely demonstrate that it is “impossible” to procure one. See DOC_App_II:258. Furthermore, after the DOC sent its letters, the district court amended its order to encompass other physicians
49

with training in anesthesiology, see DOC_Add_27, thereby broadening the field of
candidates. Notwithstanding the DOC’s unelaborated claim that it continues to
search for a doctor, see DOC_Br_65, nothing in the record suggests that it has
attempted to take advantage of this broader universe of eligible physicians.
The DOC’s suggestion that no doctor will be willing to participate is simply
wrong. Studies demonstrate that 25% of physicians would personally perform five
or more actions intrinsic to lethal injection, and 19% would be willing to administer the lethal drugs themselves.29 DOC_App_II:257-58. There are, to be
sure, ethical issues involved, but these studies make clear both that there is no
monolithic ethical position in the medical community, and that many doctors
would be willing to participate. Additionally, no professional-association rules or Missouri laws impose sanctions for doctors’ participation.30 See DOC_App_342,
347.
29 There is no reason to believe that the attitudes of anesthesiologists would be any different. See DOC_App_II:257-58. Indeed, at a recent panel of the American Society of Anesthesiologists (ASA), one anesthesiologist stated that he considered it an ethical duty to assist with lethal injection because prisoners “are suffering and I have the ability to help them.” See Clinical Forum: Medicalizing executions places anesthesiologists on slippery slope, ASA Daily News 2006, Oct. 15, 2006, available at http://www.asadailynews.com/Sunday.html (last visited Dec. 31, 2006). 30 Indeed, earlier in this litigation, the DOC itself confirmed that neither the AMA Code of Ethics nor any Missouri ethical rule or law would prohibit or penalize physician participation in executions. Taylor_App_16-17. Moreover, while the
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Having barely begun the process of locating someone, the DOC’s objection to this requirement is premature and frivolous. See United States v. Santee Sioux Tribe of Neb., 254 F.3d 728, 736 (8th Cir. 2001) (litigants bear burden of showing in detail that compliance with court order is impossible).
Finally, were the DOC ultimately unable to find someone after further genuine efforts, it would still have ways to implement the death penalty. It could, for instance, adopt a one-drug procedure or ask the district court to modify its injunction based on a more rigorous showing of impossibility. Accordingly, the injunction in no event bars implementation of the death penalty. III. THE DISTRICT COURT APPLIED THE CORRECT EIGHTH
AMENDMENT STANDARD. For the reasons stated above, the DOC’s challenges to Judge Gaitan’s rulings are entirely meritless. The DOC’s alternative tack on appeal is to assert an eviscerated Eighth Amendment standard that restricts only execution procedures that are guaranteed and intended to cause pain. The DOC never raised these arguments to the district court, and they are waived. Wiser v. Wayne Farms, 411 F.3d 923, 927 (8th Cir. 2005); Becker v. University of Nebraska, 191 F.3d 904, 909 n.4 (8th Cir. 1999) (“A party may not stand idly by … and allow[] the [district court] to commit error of which [the party] subsequently complains.”). Moreover,
outgoing ASA president advised anesthesiologists to “steer clear,” his words have no binding effect. See DOC_App_II:262.
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the arguments are indefensible. No precedent supports the DOC’s standard, which tolerates even the most unnecessary and unreasonable risks of pain, and which excuses even the cruelest execution methods so long as the officials do not explicitly intend to inflict pain. In contrast, the standard adopted by the district court — that the Eighth Amendment bars methods of execution that impose unreasonable risks of pain — is the law of the land.
A. Standard of Review. This Court reviews questions of law de novo. Antolik v. Saks, Inc., 463 F.3d 796, 798 (8th Cir. 2006). B. The Eighth Amendment Forbids Execution Procedures That
Create An Unreasonable Risk Of Pain. The Eighth Amendment bars the imposition of “cruel and unusual punishment.” U.S. Const. amend. VIII. The Supreme Court has long interpreted this phrase to bar punishments “incompatible with the ‘evolving standards of decency that mark the progress of a maturing society.’” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). Judge Gaitan found that although the unforeseeable “risk of accident,” DOC_Add_26, does not violate the Eighth Amendment, the DOC may not use execution methods that create an “unnecessary” or “unreasonable risk” of pain, DOC_Add_26. That conclusion is plainly correct. The DOC acknowledges that the Eighth Amendment prohibits the “unnecessary” infliction of pain.
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DOC_Br_28 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Thus, the DOC is constitutionally obligated to reasonably minimize the pain that it inflicts on condemned inmates. But maintaining a procedure that creates an unnecessary risk of pain does not reasonably minimize pain, because that procedure will inevitably cause unnecessary pain in real executions. It is entirely proper to require the DOC to correct that unnecessary risk now, rather than after Taylor’s execution when it will be too late to safeguard his constitutional rights. Moreover, such unreasonable risks are by definition “totally without penological justification,” Jorden v. Farrier, 788 F.2d 1347, 1348 (8th Cir. 1986) (quoting Gregg, 428 U.S. at 183), and inconsistent “with the evolving standards of decency,” Estelle, 429 U.S. at 102 (internal quotation marks omitted), because they needlessly subject inmates to a painful execution. Even Justices who have taken a narrower view of the Eighth Amendment’s protections have recognized such punishments are impermissible. See Furman v. Georgia, 408 U.S. 238, 430 (1972) (“[N]o court would approve any method of implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives.”) (Powell, J., dissenting, joined by Burger, C.J., Blackmun, J., and Rehnquist, J.).
The correctness of Judge Gaitan’s ruling is confirmed by the many cases that have adopted the same standard. See Evans v. Saar, 412 F.Supp.2d 519, 524 (D. Md. 2006) (asking “whether an inmate facing execution has shown that he
53

is subject to an unnecessary risk of unconstitutional pain or suffering”) (emphasis added; internal quotation marks omitted); Morales III, 2006 WL 3699493, at *1 (“[T]he Eighth Amendment prohibits … procedures that create an ‘unnecessary risk’ [of pain.]”) (emphasis added); Cooey, 430 F.Supp.2d at 708 (finding that “Ohio’s lethal injection protocol giv[es] rise to the unacceptable risk of violating the Eighth Amendment[]”) (emphasis added); Baze v. Rees, No. 2005-SC-0543MR, __S.W.3d__, 2006 WL 3386544, at *2 (Ky. Nov. 22, 2006) (“[The test is whether the] procedure for execution creates a substantial risk of wanton and unnecessary infliction of pain.”) (emphasis added); Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004) (Cooper must show “he is subject to unnecessary risk of unconstitutional pain”) (emphasis added). Although these courts use slight differences in phraseology, they are crystal clear that risk of pain is central to the Eighth Amendment analysis.
Despite this precedent supporting the district court’s standard, the DOC now argues that no risk, no matter how unreasonable and foreseeable, can give rise to a constitutional violation. But that argument is waived, as the DOC never presented it to the district court. Indeed, although the DOC challenged many other aspects of the district court’s decision, it repeatedly embraced a risk standard in defending its revised protocol: “The protocol proposed by the Department of Corrections complies with the Eighth Amendment in that it … does not subject condemned
54

prisoners to a foreseeable and undue risk of unnecessary and wanton pain.” DOC_App_II:360 (emphasis added); see also DOC_App_II:361, 362, 364, 366, 370. Likewise, although Taylor’s amended complaint alleges an Eighth Amendment violation on the basis of the “foreseeable risk” of pain, DOC_App_II:87-88, the DOC did not claim this was the wrong standard in its motion to dismiss. Nor did the DOC articulate the argument in its June pre-trial brief. It is entirely improper for the DOC to argue for a new standard on appeal. Wiser, 411 F.3d at 927.
Even if the argument were preserved, it should still be rejected as erroneous. The DOC calls the risk standard “novel,” DOC_Br_32, yet its brief ignores nearly all of the cases cited above that apply the standard.31 Nor does the DOC’s standard make any sense given that it permits even the most dangerous means of execution so long as they are not guaranteed to be cruel and unusual. The DOC’s standard would insulate haphazard execution practices from constitutional review because of the impossibility of demonstrating that those practices were absolutely certain to cause pain. No decision from any court ignores risk in the manner the DOC urges.
31 The DOC claims that the risk standard articulated in Cooper is the product of a preliminary injunction analysis. DOC_Br_31-32. Yet preliminary relief for Cooper depended not on showing that it was likely that the execution method was guaranteed to cause pain, but that it was likely the execution method presented an unreasonable risk of causing pain. Cooper, 379 F.3d at 1033.
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Certainly the cases that the DOC cites do not support its extreme position. Noting that “all human activity entails risk,” DOC_Br_32, the DOC cites the
32
plurality opinion in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), for the proposition that the “risk of accident” does not create an Eighth Amendment violation. DOC_Br_33. That citation is doubly inapt. First, Resweber did not even involve a claim that death by electrocution created an unreasonable risk of pain; the prisoner’s claim was only that it would be psychologically cruel and unusual to subject him to electrocution a second time after the first attempt was unsuccessful. Resweber, 329 U.S. at 464. Thus, Resweber simply has nothing to do with the issue before this Court.
Second, even indulging the DOC’s misreading of Resweber, Judge Gaitan, as noted above, explicitly rejected the notion that the unavoidable “risk of accident” inherent in all human activity could give rise to an Eighth Amendment violation. DOC_Br_33. Judge Gaitan found instead that the constitution bars only foreseeable and unreasonable risks of excruciating pain, a standard fully consistent with Resweber. Compare DOC_Add_22 (finding a violation in light of “undue risk” of pain) with Resweber, 329 U.S at 464 (declining to find a violation on the basis of an “unforeseeable accident”) (plurality opinion). Indeed, Judge Gaitan’s 32 Although the DOC does not mention it, the Eighth Amendment ruling in Resweber secured the votes of only four Justices; Justice Frankfurter concurred in the judgment on different grounds. 329 U.S. at 466-72 (Frankfurter, J., concurring in the judgment).
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formulation is suggested by Resweber itself, which reached only the limited conclusion that “[a]s nothing has been brought to our attention to suggest the contrary, we must and do assume that the state officials carried out their duties … in a careful and humane manner,” Resweber, 329 U.S. at 462 (emphasis added). The other cases that the DOC cites as purportedly abandoning the risk standard impose these same restrictions. See, e.g., Malicoat v. State, 137 P.3d 1234, 1237 (Okla. Crim. App. 2006) (finding that the mere risk of accident does not violate the Eighth Amendment, so long as the State takes “appropriate precautions and rel[ies] upon adequate training, skill, and care in doing the job”). In short, while the Eighth Amendment does not require the DOC to prevent the unforeseeable, it is required to remedy the foreseeable likelihood of excruciating pain.
The pair of nineteenth-century cases that the DOC cites are also unavailing. In Wilkerson v. Utah, 99 U.S. 130 (1878) and In re Kemmler, 136 U.S. 436 (1890), the Supreme Court considered challenges to execution by firing squad and electrocution, respectively. But both cases involved entirely different types of Eighth Amendment challenges than the one at issue here. The prisoners did not allege that the method of execution contained some foreseeable risk that would cause unconstitutional pain; their claim was that death by firing squad and electrocution were inherently unconstitutional, even if carried out without error. As such, those cases had no reason to address the relevance of unreasonable risk,
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let alone to hold it irrelevant. Moreover, just because executions no longer take place using the facially unconstitutional methods discussed in those opinions, such as the rack and screw, the DOC cannot avoid Eighth Amendment scrutiny by adopting a potentially proper method of execution like lethal injection but carrying it out in an unreasonable manner.33 See Weems v. United States, 217 U.S. 349, 373 (1910) (“[W]e cannot think that [the Eighth Amendment] was intended to … prevent only an exact repetition of history.”).
The DOC is left to argue that a reasonableness standard is untenable. DOC_Br_32-34. That canard is rebutted by courts every day as they assess reasonableness in countless contexts in order to apply legal standards. What would be wholly untenable is to exempt from constitutional review all execution methods not guaranteed to cause pain. That legal standard would make a procedure’s mere potential to be carried out painlessly a complete defense to the all too real risks the DOC’s actions create.
Because the DOC has waived its “certain pain” argument, and because the argument is an incorrect interpretation of the Eighth Amendment, this Court should reject it.
33 Indeed, the DOC’s “guaranteed pain” requirement would permit even the cruelest methods of punishment because no method of execution is strictly guaranteed ex ante to cause pain in all cases. Any number of contingencies might arise, such as the prisoner who dies or loses consciousness instantly.
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C. Cruel and Unusual Execution Methods Do Not Become Constitutional When They Are Unintended.
The DOC’s second argument is that whatever pain and suffering its execution procedures create, there can be no Eighth Amendment violation unless prison officials intend to cause that pain and suffering. Again, the DOC creates a precedentless standard inconsistent with Eighth Amendment jurisprudence.
As an initial matter, the DOC never argued the necessity of scienter to the district court. The claim is waived and not properly before this Court. Wiser, 411 F.3d at 927.
But even if it had been validly raised, the argument would still be incorrect. Mens rea has no place in an Eighth Amendment review of the means by which a state carries out its punishment of death. The intent of the executioner plainly does not lessen the pain he causes. See Campbell v. Wood, 18 F.3d 662, 682 & n.12 (9th Cir. 1994) (review of the “methodology” of an execution is concerned only with “objective evidence of the pain involved” and a “deliberate indifference standard is not directly applicable” to it) (emphasis added)).
In response, the DOC relies almost exclusively on cases involving prison conditions and the like. DOC_Br_36-37. To be sure, mens rea may be relevant to actions taken incident to punishment, such as with cell overcrowding or medical care, lest every error in the prison context “become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. But the state
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action at issue here is not “incident” to punishment; the method by which the DOC chooses to perform the lethal injection is the punishment — indeed it is the most profound punishment that the DOC may impose. No case has ever held mens rea relevant to those actions; on the contrary, case after case has considered challenges to execution methods without ever inquiring into subjective state of the officers who carry it out. E.g., LaGrand v. Stewart, 173 F.3d 1144, 1148-49 (9th Cir. 1999) (finding execution by cyanide gas unconstitutional based on “substantial risk” of severe pain, without considering scienter); Cooey, 430 F.Supp.2d at 708 (same for lethal injection); Morales I, 415 F.Supp.2d at 1039.
Indeed, the only execution case that the DOC cites for its intent standard is the Resweber plurality. But while that opinion noted that Louisiana lacked a “purpose to inflict unnecessary pain,” it is clear from context that the plurality meant only that the “unforeseen accident” that led to a failing of the electric chair was in fact truly an accident. Resweber, 329 U.S. at 464 (“The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot ... add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain ....”). Thus, while a showing of malicious purpose could be relevant to an inquiry into whether mistakes by the DOC were truly
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unforeseeable, Resweber’s plurality imposed no general rule that purpose is a necessary component of unconstitutional pain.34
In sum, the DOC has waived any argument about scienter, and its arguments are flawed in any case. Its claim of error must therefore be rejected.
34 Even if this Court were to conclude that intent were necessary, a standard no higher than deliberate indifference is justified. Higher mens rea is reserved only for situations, such as prison riots, where officials are “in haste [and] under pressure.” Farmer v. Brennan, 511 U.S. 825, 835 (1994). Judge Gaitan’s ruling amply supports a finding of deliberate indifference, i.e., “recklessness.” Id. 836. The district court found that Crawford was, and intends to remain, “totally dependent” on Doe regarding medical procedures, and that Doe, despite knowing that he had significant trouble with dosages, continued to administer executions. DOC_Add_18-20; supra note 16. That is tantamount to a finding of deliberate indifference. Farmer, 511 U.S. at 842, 846 & n.9 (recklessness can be inferred where “risk is obvious” and court has found a risk exists); Jensen v. Clarke, 94 F.3d 1191, 1200 (8th Cir. 1996) (defendants’ post-trial conduct indicated deliberate indifference). In all events, imposing a mens rea requirement at most would require remanding the case to Judge Gaitan to enter findings on the point.
61

CONCLUSION Judge Gaitan’s decision should be affirmed, and this Court should remand to the district court so that the DOC may comply with the court’s rulings.

Respectfully submitted,

________________________________

C. John Pleban Lynette M. Petruska Pleban & Associates, LLC 2010 South Big Bend Blvd. St. Louis, MO 63139

Donald B. Verrilli, Jr. Matthew S. Hellman Ginger D. Anders Eric Berger Jenner & Block LLP 601 13th Street N.W. Washington, DC 20005

Counsel for Plaintiff-Appellee

January 2, 2007

62

CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the undersigned certifies that this brief complies with the applicable type-volume limitations of Federal Rule of Appellate Procedure 32(a). This brief was prepared using a proportionally spaced type (Times New Roman, 14 point). Exclusive of the portions exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii), this brief contains 13,993 words, according to the word count function of Microsoft Word (2002).
Respectfully submitted, Ginger D. Anders
63

CERTIFICATION OF COMPLIANCE WITH CIRCUIT RULE 28A(D) A PDF digital version of Appellee’s brief, excluding the addendum and
unpublished opinions, has been furnished on a CD-ROM and produced to this Court. Duplicate CD-ROMs have been produced to the Appellants’ counsel. The CD-ROMs have been scanned for viruses using the McAfee 8.0 program and are virus free.
Respectfully submitted, Ginger D. Anders
64

CERTIFICATE OF SERVICE I certify that on January 2, 2007, I caused to be served two copies of the brief and one copy of the appendix of Plaintiff-Appellee Michael Anthony Taylor on counsel of record for the Defendants-Appellants herein by mailing said copies via UPS, addressed to the following: Michael Pritchett, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, MO 65102 I also served him with electronic copies of the brief on CD-ROMs enclosed in the same mailing.
Ginger D. Anders
65

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
___________________________________________
NO. 06-3651 ____________________________________________
MICHAEL ANTHONY TAYLOR, Appellee,
v.
LARRY CRAWFORD, et al., Appellants.
____________________________________________
On Appeal from the United States District Court for the Western District of Missouri, Central Division
The Honorable Fernando J. Gaitan, District Judge ____________________________________________
REPLY BRIEF OF APPELLANTS _____________________________________________
JEREMIAH W. (JAY) NIXON Attorney General
MICHAEL PRITCHETT Assistant Attorney General Missouri Bar No. 33848
STEPHEN D. HAWKE Assistant Attorney General Missouri Bar No. 35242
P.O. Box 899 Jefferson City, MO 65102 (573) 75l-332l Attorneys for Appellants

TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2

TABLE OF AUTHORITIES Cases
Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 5 Gregg v. Georgia, 428 U.S. 153 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6 Hamilton v. Jones, 2007 WL 18926 (10th Cir., Jan. 4, 2007) . . . . . . . . . . . . . 15, 16 Morales v. Hickman, 415 F. Supp. 2d 1037
(N.D. Cal. 2006), aff’d, 438 F.3d 926 (9th Cir. 2006), cert. denied, 126 S. Ct. 1314 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Nelson v. Campbell, 541 U.S. 637 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Swann v. Charlotte-Mecklenburg Bd. of Ed., 91 S.Ct. 1267 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Other Authorities 18 U.S.C. §3626 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3

ARGUMENT I. Legal Standard In the opening brief, corrections officials demonstrated that the Eighth Amendment legal standard by which to measure a complaint concerning the method of execution was, as established by the Supreme Court, whether “the punishment [involved] the unnecessary and wanton infliction of pain.” (Appellant’s Brf., page 28 quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Officials also noted that Taylor did not demonstrate and the district court did not find “purpose,” “deliberate indifference,” “maliciously or sadistically,” or any other mental state by the corrections officials (Appellant’s Brf., pages 35-38). Taylor now contends that corrections officials did not raise this issue; thus, it is waived (Appellee’s Brf., page 51, 54, 59). But corrections officials asserted that the legal standard of review for the method-of-execution claim was that set forth in Gregg. They made that contention in the original appeal to this court (Appellee’s Brief in No. 06-1397 (8th Cir. March 17, 2006, page 27). And they presented that contention in various pleadings to the district court (App. 37, 104, 209-10, 360). The district court was aware of the proper Eighth Amendment standard, perhaps as best shown by its quotation of Gregg in its January 31, 2006 order (App. 139). The district court erred by failing to apply that standard. In the opening brief, corrections officials demonstrated that neither the text of the Eighth Amendment nor the Supreme Court decisions interpreting that text encompass a notion that the Eighth Amendment protects the condemned against a
4

“risk” of pain during an execution (Appellant’s Brf., pages 28-31). Corrections officials also demonstrated that the Eighth Amendment should not be expanded to encompass such a rule (Appellant’s Brf., pages 32-34). Taylor offers no authority to the contrary (see Appellee’s Brf., pages 52-53). Instead, Taylor concludes that the prohibition against an unnecessary infliction of pain is the same thing as the unnecessary risk of pain (Appellee’s Brf., page 53). But there is no Supreme Court authority for that proposition (Appellee’s Brf., page 53) nor does Taylor offer analysis in support of that assertion (Appellee’s Brf., page 53).
Taylor argues that many local courts apply the “risk” standard (Appellee’s Brf., pages 53-54). Corrections officials acknowledged this in their opening brief, but also demonstrated how the “risk” language traced its origins to preliminary injunction litigation (Appellant’s Brf., page 31 citing Cooper v. Rimmer, 379 F.3d 1029, 1030 (9th Cir. 2004)). More telling is the fact that Taylor refers the court to no Supreme Court precedent holding that the Eighth Amendment is violated when a means of execution involved a risk of pain (Appellee’s Brf., page 54).
Taylor contends that the risk standard is necessary in order for the federal courts to regulate the execution practices of several states (Appellee’s Brf., page 55). Corrections officials do not believe such regulation should be a goal, in and of itself. And as articulated in the opening brief, the Eighth Amendment was designed to
5

prohibit the “unnecessary and wanton infliction of pain,” Gregg v. Georgia, 428 U.S. at 173, not impose an assessment of risks.1
In the opening brief, corrections officials showed that the district court erred by failing to make a finding of scienter, a mental state, i.e. a finding that the corrections officials have the purpose to add an element of cruelty to the execution. Taylor contends that the intent of the corrections officials is irrelevant (Appellee’s Brf., page 59) relying on Campbell v. Wood, 18 F.3d 662, 682 & n.12 (9th Cir. 1994). In contrast to the Ninth Circuit’s Campbell decision, in whatever Eighth Amendment context a claim has arisen, the Supreme Court has required a showing of scienter. Taylor shows no wording to the contrary in the text of the Eighth Amendment and also identifies no Supreme Court case construing the amendment that holds to the contrary.
Taylor makes no argument that he can show that corrections officials act with “purpose” or “maliciously or sadistically” (Appellee’s Brf., pages 59-61). Taylor suggests that he may be able to show “deliberate indifference” (Appellee’s Brf., pages 61 n.34). To support that assertion, however, he only refers the court to pre-July, 14, 2006 protocol evidence that the Department remained dependent on Dr. Doe (Appellee’s Brf., page 61 n.34). Of course, Taylor does not demonstrate any
1Of course, this is not to say that “risks” analysis has no place in the development of social policy generally or the use of capital punishment specifically. The appropriate place for that analysis however, is with the policymakers of the several states, not constitutional interpretation of the Eighth Amendment.
6

“deliberate indifference in the development and proposed implementation of the July 14, 2006 protocol.
II. No Unreasonable Risk Exists Assuming the Eighth Amendment regulates “unreasonable risks,” no such risks exist. In his first point, Taylor contends that the district court correctly found that the Missouri execution procedure violated the Eighth Amendment because it created a risk of pain (Appellee’s Brf., page 26). Initially, Taylor contends that the third chemical, potassium chloride, causes pain (Appellee’s Brf., page 29). That is why it is the third chemical. The first chemical injected was five grams of thiopental in a 60 cc syringe (June Tr. 370) and with today’s written protocol, five grams is injected in a 200 cc solution (Add. 32; §B.2). Its purpose is to render the offender unconscious. Taylor acknowledges that a five gram dose of thiopental “is more than sufficient to cause unconsciousness” (Appellee’s Brf., page 30 n.11). But Taylor is apparently afraid that he may not receive the five gram dose. Id. To support this fear, Taylor asserts that corrections officials abdicated authority to Dr. Doe (Appellee’s Brf., page 30). Director Crawford is the person who has authority to set the method of execution within the dictates of Missouri law (June Tr. 363). Upon learning of Dr. Doe’s previous changes in the amount of thiopental administered, the director testified that he intended to issue a defined protocol so that this would not happen again (June Tr. 369). Director Crawford testified that an execution would begin with the administration of five grams of thiopental (June Tr. 370). Neither the chemicals
7

themselves nor the order of the chemicals could be changed by anyone other than Director Crawford (June Tr. 371).
Independently, under the July 14, 2006 protocol, “the quantities of these chemicals may not be changed without prior approval of the department director” (Add. 32 (§B.1)). The critical fact, the injection of five grams of thiopental into the condemned, is not the subject of discretion by Dr. Doe, and Dr. Doe is so aware (June Tr. 374; App. 731-33). So even assuming that Dr. Doe were to continue as a “medical personnel” under the protocol (Add. 32 (§A.2, A.3)), five grams of the first chemical, thiopental will be administered.
Taylor contends that Dr. Doe is not competent to be involved with an execution (Appellee’s Brf., pages 32-33). The written July 14, 2006 protocol provides that a variety of medical personnel can prepare the chemicals used during the lethal injection, insert intravenous lines, monitor the offender, and supervise the injection of lethal chemicals by non-medical members of the execution team (Add. 32 (§A.2, A.3)). Assuming Dr. Doe were to participate, Taylor’s sole complaint is that he cannot adequately prepare thiopental (Appellee’s Brf., page 33). But the difficulty Dr. Doe had in mixing thiopental was the result of attempting to mix it at a high concentration (App. 645-46, 672-75). The July 14, 2006 protocol removes that difficulty because the five grams of thiopental is administered in 200 ccs of solution (Add. 32 (§B.2)), which is the standard 2 ½% solution that can be prepared exactly as the manufacturer intended (App. 226, 1252). The mixing is simple: one mixes the
8

powder that comes in a container with supplied dilutant (January 30 Tr. 14). Taylor’s articulated concern is resolved by the written protocol.
The third concern expressed by Taylor is that corrections officials have no consistent procedure (Appellee’s Brf., pages 33-34). But the sole basis for this concern is the same as for the first concern: the authority of Dr. Doe. That concern has been discussed earlier.
The fourth articulated concern by Taylor is with the “drug delivery mechanism” (Appellee’s Brf., pages 34-35). The district court made no finding that “the drug delivery mechanism risked improper administration” (Appellee’s Brf., page 34). Taylor refers the court to Addendum 18 (Appellee’s Brf., page 34). But that page is a recitation of evidence heard by the district court, not a fact finding (Add. 18). Taylor also cites Addendum 21-22, but that finding by the district court was in the context of monitoring anesthetic depth (Concern 5, discussed below) and not a finding about “drug delivery mechanism.” Similarly, Taylor cites Addendum page 23 as a fact finding by the district court. It is not; instead, that page is the district court’s recitation of things it would like to see in a written protocol.
And Taylor’s criticism in his brief does not discuss the July 14, 2006 written protocol. Before an execution begins, saline solution is used to confirm that the IV lines are properly inserted and that the lines are not obstructed (Add. 33 (§C.2)). The offender is monitored (Add. 33 (§D)). The execution support room is lit (Add. 33 (§E.1)). After injection of the five grams of thiopental, medical personnel inspect the catheter site (Add. 34 (§E.3)). Before the remaining chemicals are administered,
9

medical personnel confirm that the condemned is unconscious (Add. 34 (§E.4)). Taylor does not criticize the drug delivery mechanism contained in the written protocol.
Similarly, Taylor’s fifth concern, the lack of monitoring anesthetic depth, is addressed in the July 14, 2006 written protocol. Taylor complains that the medical personnel could not see the offender through the window between the execution support room and the execution room. This concern is resolved by the repositioning of the condemned in the execution room so that he can be seen through the window (Appellee’s Brf., page 46). The written protocol resolved these concerns to the district court’s satisfaction (Add. 27).
The final concern articulated by Taylor is “the procedure as a whole.” But risk, like fractions, do not grow larger as they are considered cumulatively. If one is going to be indoors 50% of the day and there is 50% chance of rain, the chance of getting wet is not 100%, but 25%. If one brings an umbrella half the time, the odds of getting wet fall to 12½%. And so on. See http://espse.ed.psu.edu/edpsych/ faculty/rhale/statistics/chapters/chapter7/chap7.html, pp. 4-5 (Multiplicative law of probability) (lasted visited 1/5/07). Taylor provided no quanification for any of the perceived risks. And he can provide no quanification for the cumulative risk he now asserts existed.
III. Remedy A large portion of Taylor’s brief consists of claims that Missouri’s lethal injection process is flawed. Much of the criticism refers to the practice as it occurred
10

before it was formalized into a written protocol (Add. 32-35; App. 215-18), so, with regard to prospective relief at least, it has little, if any continuing relevance.
Even the alleged flaws that existed before the process was set out in written form, however, do not render it inconsistent with the Eighth Amendment. Even when the Department’s doctor had some difficulty preparing the thiopental, the condemned received at least 2.5 grams of this chemical (App. 647-53, 664-65, 672, 675). The doctor, based on his medical knowledge and experience, determined this amount was more than sufficient to render the condemned prisoner deeply unconscious and unable to experience any pain (App. 627-28, 629, 676, 687). Plaintiff’s expert, Dr. Thomas Henthorn, testified that as little as 1.67 grams of thiopental will result in a deep state of unconsciousness in almost everyone (June Tr. 233, 241-42). There is no evidence of any occasion in which Dr. Doe accidently gave an incorrect2 amount of thiopental to the condemned due to improper mixing.
The thrust of Taylor’s arguments with regard to alleged flaws of the written protocol relate to whether there are assurances that the amount of thiopental intended to be administered to the condemned will actually be administered (Appellee’s Brf., page 30 n.11). But, as discussed in the corrections officials’ brief (Appellant’s Brf., pages 59-61), the written protocol provides ample assurance that the five grams of thiopental will actually be delivered to the condemned’s bloodstream.
2Taylor takes issue with the use of the word “incorrect” at pages 32-33 of his brief, on the ground that there were occasions that the condemned prisoner did not receive the five grams of thiopental intended by corrections officials. The corrections officials, however use the word “incorrect” here to mean simply an amount of thiopental lower than that which would cause deep unconsciousness.
11

In particular, the written protocol provides that, between the administration of the first chemical (thiopental) and the second two chemicals, the medical person who set the IV line will return to the execution room and directly assess whether the condemned is conscious (App. 217; Add. 34 (§E.3)). Taylor, at page 46 of his brief, criticizes this step on the ground that only a professional anesthesiologist can appropriately apply techniques for assessment of consciousness. But doctors, nurses, and emergency medical technicians have the ability to assess level of consciousness to the extent that they can be confident that a person is sufficiently unconscious to be unaware of any pain that would normally be the result of noxious stimuli (App. 371B, paragraph 8). This direct assessment of the condemned prisoner by the medical person present will provide reasonable assurance that the condemned prisoner will be unconscious when the second and third chemicals are administered.
Moreover, the protocol provides that the medical person present will examine the IV catheter site following the administration of the thiopental (App. 217; Add. 34 (§E.3)). Doctors, nurses, and emergency medical technicians qualified to set IV lines are also qualified to examine their lines and the line entry sites to insure that the IV line is operating as it should be (App. 371A-371B, paragraphs 3-6). This direct examination of the catheter site will alleviate Taylor’s concern (Appellee’s Brf., pages 22, 27) that the execution will continue if the setting of the IV results in the laceration of a blood vessel, the formation of a hematoma under the skin at the IV entry site, and an infiltration that prevents an adequate dose of thiopental from
12

reaching the vein. It needs also to be noted here that significant hematoma formation from a femoral venous line is not a typical event (June Tr. 297).3
Taylor, at pages 31 and 34 of his brief, also contends that the corrections officials’ expression of continued confidence in Dr. Doe and his capabilities will result in the doctor having “unbridled” authority in future executions (Appellee’s Brf., page 34). But the officials’ continued confidence in Dr. Doe does not mean they will not exercise the oversight called for in the written protocol (App. 218) over Dr. Doe or whoever else they may choose to prepare and administer the lethal chemicals. Moreover, the protocol specifically requires that any changes in the amounts of drugs used be pre-approved by the Director of the Department of Corrections (App. 215 (§ B.1)). The Director will make the medical personnel involved in executions fully aware of the terms of the protocol (June Tr. 374). And, if Dr. Doe continues to assist with executions, he understands that he is not to alter the amounts of chemicals used without first getting approval from the Director (App. 731-33).
Taylor, at page 40, n.16 of his brief, takes issue with the reservation by the corrections officials of the option of changing the amount of thiopental to be administered if circumstances prevent administration of five grams of this chemical. But there is no suggestion, and the corrections officials have no intention, that an
3The corrections officials also note that Taylor’s experts’ diagnosis of the occurrence of a hematoma at the Johnston execution through their review of a photograph should be viewed with some skepticism (June Tr. 46-48, 153-54, 229-31). This is especially so because the passage of only five minutes between the administration of the first chemical and the time of death (Tr. 415, 804) indicates a good flow of the chemicals into Johnston’s bloodstream.
13

amount inadequate to cause deep unconsciousness will ever be administered at an execution. As noted previously, even Taylor’s expert, Dr. Henthorn, agreed that as little as 1.67 grams will be adequate to quickly cause a deep state of unconsciousness in almost everyone (June Tr. 233, 241-42).
Taylor also challenges the corrections officials’ argument that the district court’s requirement that they always have the assistance of a doctor at executions exceeded the court’s remedial powers. Taylor, at pages 43-44 of his brief, contends that, once the court concluded there was a constitutional violation, it had the power to exercise remedial discretion to cure the violation.
The premise of Taylor’s contention is incorrect. As the corrections officials have shown, there is no constitutional deficiency in their lethal injection procedure. Thus, the district court, as a matter of law, lacked any authority to impose injunctive relief. Swann v. Charlotte-Mecklenburg Bd. of Ed., 91 S. Ct. 1267, 1276 (1971).
Even if there were a constitutional violation here, Taylor’s contention is still incorrect. As the Supreme Court made plain in Nelson v. Campbell, 541 U.S. 637, 650 (2004), challenges to execution procedures are challenges to prison conditions. As a challenge to prison conditions, the Prison Litigation Reform Act mandates that
[p]rospective relief . . . shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
14

18 U.S.C. §3626(a)(1)(A). Even if Missouri’s lethal injection procedure did violate any federal right, the prospective relief ordered here – assistance of a doctor at executions – exceeded the district court’s remedial authority because that requirement is not the least intrusive necessary to correct any violation. The court could have simply ordered direct observation of the condemned after administration of the thiopental for signs of consciousness or examination of the IV catheter site after administration of the thiopental to determine whether the IV is operating as intended, as the written protocol now directs. Or the court could have directed that the medical personnel involved have some minimum level of training with regard to setting IV lines, assessing operation of these lines, and/or assessing anesthetic depth. There is certainly a level of training with regard to the discrete and relevant skill sets at issue here that is less than that level of training received by doctors in general and anesthesiologists in particular. At least the court could have given the corrections officials the option of execution by means of a massive dose of thiopental alone or some other barbiturate or combination of barbiturates, without any direction that a doctor be present. See Morales v. Hickman, 415 F. Supp. 2d 1037, 1047 (N.D. Cal. 2006), aff’d, 438 F.3d 926 (9th Cir. 2006), cert. denied, 126 S. Ct. 1314 (2006).
Moreover, the recent decision in Hamilton v. Jones, 2007 WL 18926 (10th Cir., Jan. 4, 2007), upheld Oklahoma’s lethal injection procedure even though it did not provide for the assistance of a doctor. Rather, an EMT-P (paramedic) establishes the IV lines, insures their patency, and administers the chemicals. Id. at *2. The court also affirmed the district court’s determination that the possibility that the thiopental
15

used might not actually take effect to anesthetize the condemned prisoner is, “[i]n light of the precautions already built into the protocol, . . . simply far too remote to rise to a constitutional level . . . .” Id.
The Hamilton decision demonstrates both that Missouri’s written lethal injection protocol, which incorporates safeguards comparable to those embodied in the Oklahoma protocol, is consistent with Eighth Amendment requirements and that, even if there were some deficiency in Missouri’s protocol, there is a less intrusive remedy than the requirement that a doctor take part in the process.
16

CONCLUSION As demonstrated above and in the main brief, Missouri’s lethal injection procedure is consistent with the Eighth Amendment. The corrections officials urge this Court to reverse the district court’s entry of judgment against them, to vacate the district court’s orders imposing conditions on, and continuing oversight over, the implementation of their execution procedure against plaintiff Taylor and other condemned prisoners, and to remand this case to the district court with instructions to enter judgment in their favor. Executions in Missouri should be allowed to proceed as provided in its written protocol.
Respectfully submitted, JEREMIAH W. (JAY) NIXON Attorney General
MICHAEL PRITCHETT Assistant Attorney General Missouri Bar No. 33848
STEPHEN HAWKE Assistant Attorney General Missouri Bar No. 35242 P. O. Box 899 Jefferson City, Missouri 65102 Telephone No. (573) 751-3321 Fax No. (573) 751-9456 ATTORNEYS FOR APPELLEES CRAWFORD AND PURKETT
17

CERTIFICATE OF SERVICE I hereby certify that two true and correct copies of this brief, and a 3½ inch, labeled diskette containing this brief, were mailed, postage prepaid, this 8 day of January, 2007, to:
C. John Pleban Lynette M. Petruska Attorneys at Law 2010 South Big Bend Blvd. St. Louis, MO 63117 Donald B. Verrilli, Jr. Matthew S. Hellman Ginger Anders Eric Berger Attorneys at Law 601 13th Street, NW, Suite 1200 Washington, DC 20005
______________________________ Assistant Attorney General
18

CERTIFICATE OF COMPLIANCE I hereby certify that the text of the foregoing document, excluding the Table of Contents, the Table of Authorities, the Certificate of Service, and the Certificate of Compliance contains 3492 words of proportional spacing as determined by the automated word count of the WordPerfect 9 word processing system used and has 14point print size, and that the diskette submitted with the instant brief has been scanned for viruses and is virus-free.
_____________________________ Assistant Attorney General
19

 
 United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________

No. 06-3651 ________________

*

Michael Anthony Taylor,

*

*

Appellee,

* Appeal from the United States

* District Court for the

v.

* Western District of Missouri.

*

Larry Crawford, Director, Missouri

*

[PUBLISHED]

Department of Corrections; James

*

D. Purkett, Superintendent, Eastern

*

Reception Diagnostic &

*

Correctional Center,

*

*

Appellants.

*

________________

Submitted: January 10, 2007 Filed: June 4, 2007
________________

Before RILEY, BEAM, and HANSEN, Circuit Judges. ________________

HANSEN, Circuit Judge.

The State of Missouri, through its officers Larry Crawford and James D. Purkett (collectively "the State"), appeals the district court's judgment, which concludes that

Missouri's lethal injection protocol is unconstitutional. Finding no wanton infliction of cruel and unusual punishment in violation of the Eighth Amendment, we reverse.
I.
Michael Anthony Taylor pleaded guilty and was sentenced to death in Missouri state court for the abduction, abuse, and brutal murder of 15-year-old Ann Harrison.1 His convictions and sentence have withstood judicial scrutiny on direct appeal, see State v. Taylor, 929 S.W.2d 209 (Mo. 1996) (en banc), cert. denied, 519 U.S. 1152 (1997), and in federal habeas corpus proceedings, see Taylor v. Bowersox, 329 F.3d 963 (8th Cir. 2003), cert. denied, 541 U.S. 947 (2004). Mr. Taylor filed this 42 U.S.C. § 1983 action in the federal district court, the timeliness of which was not contested, challenging the State's three-chemical procedure used in carrying out a sentence of death by lethal injection. See Mo. Rev. Stat. § 546.720 (describing the manner of execution as either the administration of lethal gas or lethal injection, and authorizing the department director to make sufficient provisions for carrying out either method).
At the time Mr. Taylor brought suit, the State intended to use its unwritten procedure of administering a lethal combination of three chemicals through an intravenous line (IV) placed in the femoral vein. In prior executions, a physician placed the IV and prepared the chemicals, and nonmedical prison personnel administered the injections in a three-step process. First, a 5-gram dose of sodium pentothal (also known as thiopental) was injected to render the inmate unconscious. Second, a 60-milligram dose of pancuronium bromide was administered to paralyze the inmate's muscles, and third, a 240-milliequivalent injection of potassium chloride was injected to stop the heart. A saline flush followed each injection. Mr. Taylor now asserts that Missouri's procedure creates a significant risk that he might suffer the
1We will not here recount the facts of his crime as they are not relevant to this appeal.
-2-

wanton infliction of pain because if the first chemical, thiopental, does not sufficiently anesthetize him, he will feel the pain of the third chemical, potassium chloride, which indisputably will cause an excruciating burning sensation as it travels through his veins to induce a heart attack, and yet he would be unable to indicate that he is experiencing pain due to the paralyzing effects of the second chemical, pancuronium bromide.
The district court failed to set a hearing on the merits of Taylor's complaint in a timely fashion, and this court ultimately ordered the chief district judge to reassign the case to a different judge who would hold an immediate hearing and make a ruling.2 In an order dated January 31, 2006, the district court initially concluded that the threechemical sequence was not unconstitutional, and Mr. Taylor appealed. Concluding that justice was not served by the expedited nature of that hearing, though the district court had fully complied with our prior order requiring it, we remanded for additional discovery and a continuation of the evidentiary hearing to provide Mr. Taylor an adequate opportunity to fully present the merits of his claim.
On remand, the district court permitted the parties to engage in a period of additional discovery and reconvened the evidentiary hearing on June 12-13, 2006. The additional discovery permitted access to the Department of Correction's documents and logs pertaining to the last six executions and a limited anonymous deposition of John Doe I ("Dr. Doe I"), the physician in charge of mixing the chemicals and inserting the IVs for the past six executions. The execution logs reveal
2The procedural particularities of this case are recounted fully in our prior decisions, Taylor v. Crawford, 445 F.3d 1095, 1096-98 (8th Cir. 2006) (retaining jurisdiction but remanding for additional discovery and a continued evidentiary hearing), and Taylor v. Crawford, 457 F.3d 902, 904 (8th Cir. 2006) ( remanding for the district court to consider the State's proposed written protocol in the first instance). We will not repeat that procedural history here, except as necessary for a clear understanding of the current appeal.
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that Missouri does no toxicology reporting following an execution to ascertain the amount of chemicals actually in the body at the time of death. Dr. Doe I indicated that the chemical amounts listed in the execution logs are not always accurate as they represent only "an approximation" of the chemicals used and disposed of; he does not record the amount of the dose actually administered to the inmate as the logs are used only for prison inventory and DEA reporting requirements. (See Appellants' App. at 647-49.) In each of the past six executions, however, death occurred in five minutes or less from the time the first chemical was administered, and there was not a scintilla of evidence that any prisoner ever suffered any pain other than what was necessary to acquire access to the prisoner's circulatory system through the insertion of the needed intravenous lines.
Dr. Doe I revealed that he has dyslexia, which causes him to transpose letters and numbers, but he asserted that his condition is not significant to his work. "I can make these mistakes, but it's not medically crucial in the type of work I do as a surgeon." (Id. at 660.) As he understood Missouri's unwritten procedure, he had the independent authority to alter the chemical doses at will based on his medical judgment, and that in fact, there were occasions when he chose to give a dose of only 2.5 grams of thiopental without notifying the director, but in his opinion, this dose was sufficient. Under the unwritten procedure, Dr. Doe I would monitor the anesthetic depth of the inmate to ensure he was fully unconscious solely by observing the inmate's facial expression through an observation window.
The district court allowed the plaintiff to conduct a Rule 34 inspection and videotaped tour of Missouri's execution chamber. The inspection revealed that the operations room in which the chemicals are mixed and administered is lit when the chemicals are mixed but dark during the execution, though the execution chamber remains lit during the execution. The observation window from which Dr. Doe I observes the procedure is partially obstructed by blinds, and the inmate faces away from the window. During the procedure, the inmate's face is left uncovered, but the
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rest of his body, including the femoral vein injection site, is completely covered by a sheet.
At the continued evidentiary hearing, Mr. Taylor presented the testimony of Dr. Mark Heath, an anesthesiologist, and Dr. Thomas Henthorn, an expert in pharmacokinetics. These experts agreed that the third injection (the potassium chloride) would be exceedingly painful if administered without having first achieved adequate anesthetization of the condemned inmate.
Dr. Heath criticized the State's lack of a written protocol, asserting that a clearly written protocol is important so the procedure can be rehearsed and to ensure a humane execution. He noted that significant variations from the articulated procedure had occurred, citing Dr. Doe I's testimony that he had in fact prepared a dose of only 2.5 grams for the previously carried out execution, as well as for Taylor's previously scheduled execution despite the State's representation that it used a 5-gram dose. Dr. Heath noted that Dr. Doe I admitted he did not keep accurate chemical logs, contrary to standard practice. In Dr. Heath's opinion, Dr. Doe I, a board-certified surgeon, is not competent to oversee the induction of general anesthesia and would not be hired at any hospital in the United States as an anesthesiologist.
Dr. Heath opined that a humane execution under this three-chemical protocol requires a state of anesthesia deep enough for surgery. He admitted that a dose of either 2.5 or 5 grams of thiopental would be sufficient to reach this depth and that, in fact, rapid induction of anesthesia for surgery is generally achieved in the average adult with a 0.28-gram dose. He expressed concern, however, that setting a high dosage level alone does not guarantee the successful delivery of that dose into circulation and urged the use of additional independent monitoring to ensure successful delivery of the chemical into the bloodstream.
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Dr. Henthorn testified that an anesthetic depth known as "burst suppression," which is deeper than that required for surgery, must be reached for a humane lethal injection protocol because absent this depth, it is possible to be unconscious and still feel pain. He testified that burst suppression will be achieved in one minute and 45 seconds using a 5-gram dose of thiopental and in just under three minutes using a dose of 2.5 grams. He was of the opinion that the State's past practice did not include a long enough wait time to ensure adequate anesthetization before administering the second and third chemicals. He also stated that once burst suppression is achieved with a 5-gram dose of thiopental, it will be maintained for at least 45 minutes with no additional monitoring necessary. He identified several potential problems that can adversely affect the proper delivery of the anesthetic, such as an improperly prepared dose, a leaking tube that could not be detected if the IV site is covered by a sheet, or an IV insertion error that could cause the anesthetic to be administered into tissue rather than the bloodstream.
Mr. Taylor also presented the testimony of Dr. Stephen Johnson, a radiologist and expert in femoral line placement. Dr. Johnson testified that femoral vein access, which had been used routinely under the unwritten protocol, is unnecessary and produces an unreasonable risk of unnecessary pain. He opined that the risk of pain from the IV procedure can be significantly reduced by using peripheral access–the standard IV placement on the top of the hand.
Testifying for the State, Dr. Mark Dershwitz, an anesthesiologist, stated that rapid sequence inducement of unconsciousness is achieved in approximately 45 seconds with a dose of as little as 0.3 to 0.4 grams of thiopental in a clinical setting, and no pain beyond that point will be perceptible to the inmate. In his opinion, while the high dose of thiopental administered in the lethal injection process will achieve burst suppression, that level of anesthesia is far in excess of the anesthetic depth targeted for surgery, and in his opinion, a depth of unconsciousness sufficient to eliminate pain occurs much earlier than burst suppression. Dr. Dershwitz testified that
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he had recently examined the results of a bispectral index monitor ("BIS monitor") that had been used in a North Carolina execution to monitor the level of the inmate's consciousness. Dr. Dershwitz stated that a BIS value of between 60 and 40 is targeted for surgery, with 40 being the deepest level of unconsciousness used in a clinical setting. He stated that a BIS level of 40 is the point at which burst suppression begins, and any level lower than 40 is considered to be unnecessarily deep for surgery. He testified that the North Carolina execution logs indicated that a three-gram dose of thiopental was administered and the protocol required a BIS level of 60 before permitting the administration of the remaining two chemicals. Dr. Dershwitz said that the logs indicated that there had been no pause in the injection of the chemicals in that case because once the thiopental and saline flush had been completely administered, a process that lasted approximately 1-1/2 minutes, the BIS value was already at zero with a flat line electroencephalogram (EEG).
Dr. Dershwitz agreed with Dr. Henthorn that either a 2.5-gram or a 5-gram dose of thiopental, successfully delivered, will produce burst suppression requiring no further need to monitor anesthetic depth. He stated that mixing the thiopental is not a difficult task and that "certainly, most people who are intelligent can be taught to mix up a drug like thiopental properly." (June 13, 2006, Hearing Tr. at 331.) Dr. Dershwitz expressed the opinion that putting a patient to sleep is easy; the skill of the anesthesiologist lies in keeping the surgery patient stable and alive and successfully waking the patient at the end of the procedure. The last two purposes, of course, are not the objects of a lethal injection execution procedure.
Larry Crawford, the Director of the Department of Corrections (the Department) since early 2005, acknowledged that he has the overall responsibility for the execution process, that the process had been put in place before his arrival in the office with heavy reliance on the expertise of Dr. Doe I, but that he had independently considered the procedure when he first arrived. He admitted he had not been notified when Dr. Doe I made the decision to lower the dose of thiopental to 2.5 grams.
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Director Crawford indicated that he was planning to issue a new directive with a defined protocol setting forth the procedure and articulating the areas of discretion. Director Crawford indicated that he was confident in Dr. Doe I’s competence and expected that he would continue working with the execution process.3 Director Crawford testified that he did not intend to carry out Mr. Taylor's execution before issuing a new directive, stating, "I want to assure that the process is better." (Id. at 377.)
Following the hearing, the district court entered an order on June 26, 2006, concluding that Missouri's existing three-chemical procedure presents an unnecessary risk that an inmate will suffer unconstitutional pain during the lethal injection process. See Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035 (W.D. Mo. June 26, 2006) (unpublished). The district court identified several concerns with Missouri's execution protocol, namely, the lack of a written protocol specifying the chemicals and doses, the lack of consistency in its administration, the total discretion placed in the hands of Dr. Doe I, and the lack of any oversight of his conduct during the process. Additional concerns included Dr. Doe I's dyslexia, his lack of concern over how that might affect his ability to mix the lethal chemicals, and his limited ability to monitor the anesthetic depth of the inmate reliably when his view is partially obstructed by blinds, and the inmate's position in the execution room.
The district court then invoked its equitable powers to fashion a detailed remedy. Specifically, the court ordered the Department of Corrections to prepare a written protocol requiring the participation of a board-certified anesthesiologist, not less than a 5-gram dose of thiopental, certification that the inmate has achieved
3In a post-oral argument submission, the State informed our court that it was no longer its intention to utilize the services of Dr. Doe I. Although the State's frequent and solemn prior representations to us and to the district court that it had always used a 5-gram dose of thiopental proved to be erroneous, in this instance we will take the State at its word.
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sufficient anesthetic depth before injecting the last two chemicals, and giving discretion to the anesthesiologist to choose the best method and location for the injection site. The order also required the Department to include a procedure for monitoring anesthetic depth, which may require the purchase of additional equipment and the repositioning of the inmate in the execution room; a contingency plan to deal with problems that may arise during the procedure; and an auditing process to ensure that the individuals involved are complying with the protocol. The district court further ordered that once approved, the protocol may not be changed absent prior court approval. Finally, the district court stayed all executions pending approval of a new protocol. In compliance with our prior instructions, see Taylor, 445 F.3d at 1099, the district court certified its order to this court.
On July 14, 2006, the State submitted a written lethal injection protocol to the district court. Taylor objected on grounds that this new protocol was too vague and did not follow the district court's requirement to secure the participation of a boardcertified anesthesiologist. The district court correctly noted that it lacked jurisdiction to consider the new protocol because the case was on appeal to this court. On August 9, 2006, we therefore remanded the entire dispute to provide the district court the first opportunity to consider the constitutionality of the newly propounded protocol. Taylor, 457 F.3d at 904.
On September 12, 2006, the district court entered an order concluding that the State's written protocol, while "an improvement over the previous procedures," was still inadequate to provide sufficient constitutional protections. (Appellants' Add. at 27.) The district court ordered that to continue using the three-chemical protocol, the State must modify the proposal to provide that Dr. Doe I shall not participate, to require a physician with training in anesthesia to mix the chemicals, to provide for the possibility of purchasing additional equipment to monitor anesthetic depth, and to alter the record-keeping requirements. Instead of complying with that order, the State sought reconsideration, which the district court denied.
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The State appeals, asserting that the district court erred in concluding that its lethal injection protocol violates the Eighth Amendment. We review de novo questions of law arising under the Constitution, Hayes v. Faulkner County, Ark., 388 F.3d 669, 673 (8th Cir. 2004), and the district court's findings of fact for clear error, Royal v. Kautzky, 375 F.3d 720, 722 (8th Cir. 2004), cert. denied, 544 U.S. 1061 (2005).
II.
We think it prudent at the outset to set forth clearly what this case is not about. To do so, we borrow the apt words penned recently by Judge Fogel, United States District Judge for the Northern District of California, dealing with the same issue:
[C]ourts . . . exist not to resolve broad questions of social policy but to decide specific legal and factual disputes . . . . This case is not about whether the death penalty makes sense morally or as a matter of policy: the former inquiry is a matter not of law but of conscience; the latter is a question not for the judiciary but for the legislature and the voters. Nor is it about whether [Missouri's] primary method of execution–lethal injection–is constitutional in the abstract: the arguments and evidence presented by the parties address the specific manner in which [Missouri] has implemented that method and proposes to do so in the future.
Morales v. Tilton, 465 F. Supp. 2d 972, 973 (N.D. Cal. 2006) (internal citations omitted) (finding serious but correctable deficiencies in the implementation of California's lethal injection protocol and urging California's executive branch to address the implementation problems).
The Eighth Amendment's prohibition of cruel and unusual punishments, which applies to the states through the Fourteenth Amendment, Wilson v. Seiter, 501 U.S. 294, 296-97 (1991), requires, in part, an inquiry into whether a punishment is excessive, and that inquiry has two aspects. See Gregg v. Georgia, 428 U.S. 153, 173
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(1976) (plurality). "First, the punishment must not involve the unnecessary and wanton infliction of pain. Second, the punishment must not be grossly out of proportion to the severity of the crime." Id. (internal citations omitted). Mr. Taylor presents no argument that the penalty of death by lethal injection is grossly out of proportion to the severity of his crime. Instead, the question in this case is limited to whether the process of carrying out the lethal injection sentence involves "the unnecessary and wanton infliction of pain." Id.
The State begins by challenging the standard used by the district court. The State first argues that the district court erred in finding a constitutional violation on the basis of its determination that the Missouri lethal injection protocol involves an unnecessary risk of causing the wanton infliction of pain. The State asserts that the Supreme Court's articulation of the standard forbids only punishment that actually involves "the unnecessary and wanton infliction of pain," id. at 173 (emphasis added), not a mere risk of pain. We respectfully disagree. "An inmate's challenge to the circumstances of his confinement . . . may be brought under § 1983." Hill v. McDonough, 126 S. Ct. 2096, 2101 (2006). In Hill, the Court included within this rule an action challenging a state's lethal injection protocol. The Court quoted the petitioner's statement of his claim, noting, "[t]he specific objection is that the anticipated protocol allegedly causes 'a foreseeable risk of . . . gratuitous and unnecessary' pain." Id. at 2102. While we do not imply that the Court thereby adopted a new constitutional standard, we do observe that the Court expressed no dissatisfaction with that statement of the issue, and further, we find it to be consistent with settled Eighth Amendment jurisprudence.
In general conditions-of-confinement claims involving either a prison condition allowed to exist or the specific conduct of prison officials, neither of which is sanctioned as part of the prisoner's sentence, the Court has recognized that "conditions posing a substantial risk of serious harm" may rise to the level of an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). "That the
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Eighth Amendment protects against future harm to inmates is not a novel proposition." Helling v. McKinney, 509 U.S. 25, 33 (1993); see also id. at 34-35 (rejecting the proposition "that only deliberate indifference to current serious health problems of inmates are actionable under the Eighth Amendment," and permitting the case to proceed). "Court of Appeals cases to the effect that the Eighth Amendment protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of pain and suffering are legion." Id. at 34; see also Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995) (noting that deliberate indifference to "conditions posing a substantial risk of serious future harm" violates the Eighth Amendment).
Although Mr. Taylor's situation does not fit neatly within the general conditions-of-confinement context because the conduct of which he complains is necessary to carry out his punishment, as opposed to a mere condition of his imprisonment, we nevertheless see no logical reason to disregard a substantial risk that may exist in the procedure necessary to carry out a sentence of death. It is our grave responsibility to apply constitutional principles that will guard against the unnecessary and wanton infliction of pain in the procedure through which the State proposes to carry out a sentence of death, and to successfully do so in the death penalty context, we must consider whether the procedure to be used presents a substantial risk of inflicting unnecessary pain. We see no error in the district court's consideration of whether there is an unnecessary risk that the State's proposed lethal injection protocol will cause the unnecessary and wanton infliction of pain. See Hudson v. McMillian, 503 U.S. 1, 8 (1992) ("What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause depends on the claim at issue, for two reasons:" (1) we must apply the wanton infliction of pain standard by giving "due regard for differences in the kind of conduct against which the Eighth Amendment objection is lodged," and (2) the "prohibition of cruel and unusual punishments draw[s] its meaning from the evolving standards of decency that mark the progress of
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a maturing society, and so admits of few absolute limitations." (internal quotations and citations omitted) (alteration in original)).
We emphasize, as did the district court, that we are not concerned with a risk of accident. The focus of our inquiry is whether the written protocol inherently imposes a constitutionally significant risk of pain. "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (plurality). A "risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review." Campbell v. Wood, 18 F.3d 662, 687 (9th Cir.), cert. denied, 511 U.S. 1119 (1994). If Missouri's protocol as written involves no inherent substantial risk of the wanton infliction of pain, any risk that the procedure will not work as designated in the protocol is merely a risk of accident, which is insignificant in our constitutional analysis. Resweber, 329 U.S. at 464 (noting that a risk of an "unforeseeable accident" interfering with the designated procedure is not constitutionally significant).
Second, the State asserts that the district court applied the wrong standard by not requiring Mr. Taylor to demonstrate deliberate indifference on the part of the prison officials in order to prevail on his § 1983 claim. As noted above, this claim is not the typical conditions-of-confinement claim challenging prison conditions in general nor does it involve the action of a particular officer that is not part of the designated punishment for the crime. See Nelson v. Campbell, 541 U.S. 637, 644 (2004) (articulating the difficulty of categorizing this particular type of claim). The Supreme Court requires an inquiry into the state of mind of particular state officials only where the official conduct does not purport to be part of the official penalty for the crime. See Wilson, 501 U.S. at 302.
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The source of the intent requirement is . . . the Eighth Amendment itself, which bans only cruel and unusual punishment. If the pain inflicted is not formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify.
Id. at 300. The potential pain alleged in this case would be inflicted as the statesanctioned punishment because the proposed protocol is intended to be used to carry out the lawfully imposed sentence. See Nelson, 541 U.S. at 644 (noting that the "imposition of the death penalty presupposes a means of carrying it out"). The infliction of capital punishment is itself a deliberate act, deliberately administered for a penal purpose. See Wilson, 501 U.S. at 300. The protocol at issue is created by the Department's director, in whose discretion state law places the matter, and it is created for the purpose of carrying out the sentence in a humane manner. See Mo. Rev. Stat. § 546.720 (placing the responsibility for carrying out a lawful sentence of death by lethal injection solely within the hands of the Director of the Department of Corrections). The propriety of this proposed protocol in the first instance (that is, whether it achieves the goal of carrying out the punishment in a humane manner or in fact uses torturous methods), therefore, depends upon whether the protocol as written would inflict unnecessary pain, aside from any consideration of specific intent on the part of a particular state official.
The State relies on language in Resweber for its insistence that the plaintiff must demonstrate a purpose to inflict harm, but Resweber presented a different situation. The Court there concluded that a second attempt at electrocution (after the first attempt had failed due to technical problems) was not unconstitutional, finding there was "no purpose to inflict unnecessary pain." Resweber, 329 U.S. at 464 (emphasis added). A state of mind inquiry was necessary in that case because the conduct at issue – a second application of electrocution – was not authorized by statute nor was it the regular procedure adopted by state officials for carrying out a sentence of death. The Court found that the state official's decision to apply
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electrocution a second time was constitutional because it was the result of an accident and was not done for the purpose of inflicting pain. See id. (emphasizing that the unforeseeable equipment failure during the first electrocution made a second attempt necessary, and "an unforeseeable accident . . . cannot . . . add an element of cruelty"); see also id. at 471 (Frankfurter, J., concurring) (indicating that a different outcome may have resulted had there been a showing of willful multiple applications of electrocution). The conduct challenged in the present case is neither alleged to be accidental nor a deviation from the official procedure, which would require a showing of an intent to harm or deliberate indifference. Instead, the official conduct challenged is the State's designated procedure for deliberately carrying out the prescribed penalty intended to punish the inmate.
We turn then to the task of assessing whether Missouri's lethal injection protocol amounts to cruel and unusual punishment, involving a substantial foreseeable risk of the wanton infliction of pain. The Eighth Amendment prohibits the unnecessary and wanton infliction of pain through torture, barbarous methods, or methods resulting in a lingering death. See Gregg, 428 U.S. at 170. The Eighth Amendment is interpreted in a flexible manner, "'acquir[ing] meaning as public opinion becomes enlightened by a humane justice.'" Id. at 171 (quoting Weems v. United States, 217 U.S. 349, 378 (1910)). "'The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society'" and "accord with 'the dignity of man.'" Id. at 173 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality)).
The evidence reveals that the only inherent risk in Missouri's written procedure arises from the specific chemicals chosen by the State to carry out the sentence of death by lethal injection. Lethal injection itself "is commonly thought to be the most humane form of execution." Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 306 (Tenn. 2005), cert. denied, 126 S. Ct. 2288 (2006); see also Beardslee v. Woodford, 395 F.3d 1064, 1074 (9th Cir.) (specifically noting that humane concerns were a motivation for
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adopting lethal injection as the presumptive method of execution in California), cert. denied, 543 U.S. 1096 (2005). There is no dispute, however, that the third and last chemical chosen for use in this protocol will cause excruciating pain if the inmate is not adequately anesthetized and that use of the second chemical in the sequence will simultaneously mask any visible sign of that pain. Because of those inherent properties of two of the chemicals chosen to carry out the sentence of death, we must carefully evaluate the designated procedure to determine whether it sufficiently safeguards against the infliction of this excruciating pain such that any lingering risk is not of constitutional magnitude.
The written protocol is a four-page document divided into six sections–(A) describing the execution team; (B) describing the preparation of the chemicals; (C) describing the process for inserting the intravenous lines; (D) setting rules for monitoring the prisoner; (E) setting rules for administering the chemicals; and (F) documenting the chemicals. The protocol requires a more than adequate 5-gram dose of thiopental, and the quantities of chemicals prescribed in the sequence may not be changed without prior approval of the department director.4 The execution team consists of contracted medical personnel and department employees. As noted earlier, the State has indicated that Dr. Doe I will not be participating in the procedure. A physician, nurse, or pharmacist prepares the chemicals, which are injected by nonmedical department employees. A physician, nurse, or emergency medical technician holding either an "EMT-intermediate or EMT-paramedic" certification inserts the intravenous lines, establishing both a primary and a secondary IV (which
4Specifically, the procedure requires 15 syringes – the first 4 syringes contain a total quantity of 5 grams of thiopental, the next syringe contains only saline solution, then 60 milligrams of pancuronium bromide, then saline solution, then two syringes containing a total of 240 milliequivalents of potassium chloride, and the tenth syringe contains saline solution. Four additional syringes, each containing an extra 1.25 gram dose of thiopental, are prepared in case additional anesthetic is required, and one additional syringe of extra saline solution is prepared.
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must be a peripheral line) unless the prisoner's physical condition prevents the use of two lines. (Appellants' Add. at 32.) The protocol provides the medical personnel with discretion to determine the best place to insert the IV lines, and it requires that the medical personnel be qualified with the appropriate training, education, and experience to perform the IV placement procedure determined to be most appropriate.
The protocol requires medical personnel to confirm that the IV lines are working properly both before and during the procedure and to attach and monitor an electrocardiograph during the execution procedure. Medical personnel must supervise the injection of the contents of the syringes by department employees. Before the second and third chemicals are injected, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. The protocol also requires accurate documentation of the chemicals given, the order in which they were given, and the quantities of chemicals used and discarded. Any deviations from the written protocol must be promptly reported to the department director.
The district court concluded that the State's written protocol, while an improvement over the unwritten procedure, was still constitutionally deficient. The court ordered the State to modify its proposal as follows: (1) the written protocol must require the participation of a physician with training in the administration of anesthesia and must prohibit Dr. Doe I from participating in the lethal injection process, (2) the written protocol must provide for the purchase of additional equipment to adequately monitor anesthetic depth, (3) the written protocol's recordkeeping procedures must comply with specific requirements set forth by the court, (4) the protocol must provide for court review of any deviation from it, and (5) the written protocol may not be implemented by medical personnel such as paramedics or EMTs unless they are employed by the supervising physician.
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Our independent review of the State's written protocol and the record in this case leads us to the conclusion that the written protocol does not violate the Eighth Amendment, and thus, the district court had no basis on which to impose an equitable remedy requiring further modification of the protocol. The concerns that the district court noted and required to be modified do not rise to the level of creating a constitutionally significant risk of pain.
The experts agree that if a 5-gram dose of thiopental is successfully delivered, there is virtually no risk that an inmate will suffer pain through Missouri's threechemical sequence. The experts also agree that a properly functioning IV, even peripherally placed, will adequately deliver the dose and that the inmate will then be sufficiently unconscious in less than two minutes, without the need of any further monitoring. The written protocol requires a 5-gram dose of thiopental and a threeminute wait before injecting the final two chemicals. The written protocol sufficiently provides for proper delivery of that dose by requiring the IV insertions to be accomplished by medical personnel (a physician, nurse, or EMT) who is qualified to perform the task, who must confirm before the procedure begins that the IV is functioning properly and not obstructed, and who must inspect the site again before the final two chemicals are injected. The physician, nurse, or EMT is given discretion only with regard to determining the proper placement of the IV and the appropriate procedure for insertion of the IV. The physician, nurse, or EMT is required to examine the prisoner physically using standard clinical techniques to determine that he is unconscious before the second and third chemicals are administered.
Because of the pain that undoubtedly would be inflicted by the third chemical if administered without adequate anesthetization, it is imperative for the State to employ personnel who are properly trained to competently carry out each medical step of the procedure. The protocol adequately requires trained medical personnel to carry out these steps and to verify that the IV is working properly. The protocol provides
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no opportunity for personal judgment regarding the proper dose, because the protocol mandates a dose large enough to render anyone deeply unconscious, as long as it is delivered properly. The protocol is designed to ensure a quick, indeed a painless, death, and thus there is no need for the continuing careful, watchful eye of an anesthesiologist or one trained in anesthesiology, whose responsibility in a hospital's surgery suite (as opposed to an execution chamber) is to ensure that the patient will wake up at the end of the procedure. "For exceedingly practical reasons, no State can carry out an execution in the same manner that a hospital monitors an operation." Workman v. Bredesen, No. 07-5562, 2007 WL 1311330, at *12 (6th Cir. May 7, 2007), cert. denied, 127 S. Ct. 2160 (May 8, 2007). Absent some specific disqualifying characteristic of the chosen medical personnel, we would be hard pressed to say that a physician, a trained nurse, or a licensed pharmacist is not qualified to mix the chemicals. We know of no decision holding that the Constitution requires a physician to become the executioner. See generally id. at *12 (stating that the Constitution does not require the State to hire an anesthesiologist for each execution); McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir.), cert. denied, 514 U.S. 1104 (1995) (stating, "we are aware of no authority for the proposition that the prisoner is entitled, for example, to have a lethal injection administered by a physician").
Neither does the record justify requiring the continuous monitoring of the anesthetic depth of the inmate by one trained in anesthesia or by additional equipment. The written protocol requires a 5-gram dose of thiopental to be delivered through a properly placed and working IV, combined with a three-minute wait and a physical confirmation of unconsciousness before the last two chemicals are administered. The experts agree that this dose, successfully delivered, will cause burst suppression in less than three minutes and last at least 45 minutes, which eliminates any need for further monitoring. Given the dose of thiopental provided in the protocol, the precautions taken to ensure it is successfully delivered, the three-minute wait built into the protocol before administration of the second and third chemicals, the ready
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availability of syringes containing an additional five grams of thiopental, and the physical examination of the prisoner and the IV site prior to administering the second and third chemicals, there simply is no realistic need for further monitoring of anesthetic depth by a physician or sophisticated equipment to prevent a constitutionally significant risk of pain.
The Constitution does not require the use of execution procedures that may be medically optimal in clinical contexts. See Hamilton v. Jones, 472 F.3d 814, 816 (10th Cir.), cert. denied, 127 S. Ct. 1054 (2007). "The state has broad discretion to determine the procedures for conducting an execution . . . ." McKenzie, 57 F.3d at 1469. "[W]e recognize that what could be done to update or even improve the protocol is not the appropriate legal inquiry to be undertaken by this or any other reviewing court." Abdur'rahman, 181 S.W.3d at 309. Where the "procedures are reasonably calculated to ensure a swift, painless death," they are "immune from constitutional attack," McKenzie, 57 F.3d at 1469, as the Constitution protects only against the wanton and unnecessary infliction of pain. What the Sixth Circuit said about the Tennessee protocol is equally true about Missouri's: "The whole point of the [Missouri] lethal-injection protocol is to avoid the needless infliction of pain, not to cause it." Workman, 2007 WL 1311330, at *9. The State's written protocol does not present any substantial foreseeable risk that the inmate will suffer the unnecessary or wanton infliction of pain. The abundant dose of thiopental, lethal in itself and over 17 times that given for surgeries, combined with built-in checks to ensure that the IV is properly placed by medical personnel trained for the procedure and that the IV is working and not obstructed, renders any risk of pain far too remote to be constitutionally significant. See id. at *12 (noting that the risks of pain in a similar protocol "remain remote []and do not occur when the procedure is properly implemented"); Hamilton, 472 F.3d at 816-17 (noting that the risk involved must be of constitutional magnitude; and denying an injunction upon concluding that the district court correctly determined, in light of the precautions built into Oklahoma's
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protocol, that the risk of failure to monitor resulting in the alleged pain is far too remote to rise to a constitutional level).
We emphasize that Mr. Taylor has not adduced evidence at any stage of this litigation that carries his burden of proving a constitutional violation. We have very carefully examined the entire record, and we find no evidence to indicate that any of the last six inmates executed suffered any unnecessary pain that would rise to an Eighth Amendment violation or that any state actor was deliberately indifferent to the Constitution's requirement that no unnecessary pain be wantonly inflicted during the execution process.
III. We conclude that Missouri's written lethal injection protocol does not violate the Eighth Amendment. The judgment of the district court is reversed, and the injunction the district court issued is vacated.
______________________________
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 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
___________________________________________
NO. 06-1397 ____________________________________________
MICHAEL ANTHONY TAYLOR, Appellant-Plaintiff,
v.
LARRY CRAWFORD, et al., Appellees-Defendants.
____________________________________________
On Appeal from the United States District Court for the Western District of Missouri, Central Division
The Honorable Fernando J. Gaitan, District Judge ____________________________________________
BRIEF OF APPELLEES/DEFENDANTS _____________________________________________
JEREMIAH W. (JAY) NIXON Attorney General
MICHAEL PRITCHETT Assistant Attorney General Missouri Bar No. 33848
STEPHEN D. HAWKE Assistant Attorney General Missouri Bar No. 35242
P.O. Box 899 Jefferson City, MO 65102

(573) 75l-332l Attorneys for Appellees SUMMARY AND REQUEST FOR ORAL ARGUMENT Plaintiff-Appellant Michael Anthony Taylor challenges Missouri’s three-drug lethal injection procedure as violative of the Eighth Amendment’s ban of cruel and unusual punishments. Taylor also claims that his due process rights under the Fourteenth Amendment will be violated because a physician will assist in preparations for the execution in that such assistance by a physician is a violation of medical ethics. Additionally, Taylor asserts that lethal injection, as performed in Missouri, violates the Thirteenth Amendment in that it constitutes a badge of slavery. Finally, Taylor contends that he was denied due process because of the trial being scheduled on short notice and because of evidentiary rulings of the district court. Taylor, however, had sufficient time to develop and to present his case, including sufficient time to prepare and present the witnesses whose testimony he concluded was necessary. The evidence that could have been provided by the witnesses Taylor was precluded from calling, could have been provided by alternative witnesses. The district court’s findings and conclusions as to the constitutional validity of Missouri’s lethal injection procedure were also well supported both factually and legally.
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The defendant-appellee prison officials request twenty minutes for oral argument.
TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 STATEMENT OF THE CASE & FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARGUMENT I. The district court judgment is supported by sufficient evidence . . . . . . . . . . 17
The Three-Drug Sequence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Femoral Vein Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 II. The district court properly conducted evidentiary hearing . . . . . . . . . . . . . . 30 Taylor had sufficient time to prepare his case . . . . . . . . . . . . . . . . . . . . . . 31 Proposed testimony of Dr. Melethil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 District Court’s refusal to permit testimony from medical personnel involved in Missouri’s executions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
TABLE OF AUTHORITIES
Cases
Abdur’Rahman v. Bredesen, No. M2003-01767-COA-R3-CV, 2004 WL 2246227 (Tenn. Ct. App. Oct. 6, 2004), aff’d, 2005 WL2615801 (Tenn. Oct 17, 2005) . . . . . . . . . . . . . . . . . . . . . 28
Beard v. Flying J, Inc., 266 F.3d 792 (8th Cir. 2001) . . . . . . . . . . . . . . . . . 16, 34
Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 25
Bennett v. Hidden Valley Golf and Ski, Inc., 318 F.3d 868 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Dakota Indus., Inc., v. Dakota Sportswear, Inc., 988 F.2d 61 (8th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Darst-Webbe Tenant Ass'n Bd. v. St. Louis Housing Auth., 339 F.3d 702 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . 16
Draper v. Rhay, 315 F.2d 193 (9th Cir. 1963), cert. denied, 375 U.S. 915, 84 S. Ct. 214 (1963) . . . . . . . . . . . . . . . . . . . 29
Johnston v. Crawford, No. 4:04-CV-1075 CAS (E. D. Mo. Aug. 26, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 30, 33
Johnston v. Roper, 421 F.3d 1152 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . 30
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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Mercurio v. Nissan Motor Corp., 81 F. Supp. 2d 859 (N.D. Ohio 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996) . . . . . . . . . . . . . . . . . . . . 11, 13 Taylor v. Bowersox, 329 F.3d 963 (8th Cir. 2003),
cert. denied, 541 U.S. 947 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Taylor v. Crawford, No. 06-1278 (8th Cir. January 29, 2006) . . . . . . . . . . . . . . . . 8 Taylor v. Missouri, 519 U.S. 1152 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Wendt v. Lynaugh, 841 F.2d 619 (5th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . 28 Woods v. Lecureux, 110 F.3d 1215 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . 38
Other Authorities 28 U.S.C. § 2244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Fed. R. Civ. P. 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Fed. R. Evid. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Missouri Supreme Court Rule 24.035 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11 Missouri Supreme Court Rule 27.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 § 546.740, RSMo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 §565.020, RSMo. 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 §565.110, RSMo. 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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§566.030, RSMo. Cum. Supp. 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 §571.015, RSMo. 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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ISSUES PRESENTED FOR REVIEW I.
Whether the district court erred by entering judgment for the defendantappellee prison officials after a two day evidentiary hearing because the district court’s fact findings were not clearly erroneous. Because of the facts found, the district court properly denied relief. [Responds to Point II of Appellant’s Brief.]
Johnston v. Crawford, No. 4-04-CV-1075 CAS, (E.D.Mo. Aug. 26, 2005); Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); and Reid v. Johnson, 333 F. Supp. 2d 543 (E.D.Va. 2004).
II. Whether the district court abused its discretion (1) in refusing to permit plaintiff-appellant Taylor to call the doctor and nurse involved in Missouri executions as witnesses where the testimony Taylor proposed to elicit from them would have added little or nothing of relevance or could have been provided by other witnesses available to Taylor, or (2) in holding the hearing in a time frame that may have prevented Taylor fro m presenting testimony from an expert witness where the expert’s testimony would not have been of
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critical import and where Taylor neither articulated the substance of the expert’s expected testimony nor unequivocally asked for a continuance of any length for the purpose of obtaining the expert as a witness. [Responds to Point I of Appellant’s Brief.]
Mercurio v. Nissan Motor Corp., 81 F. Supp. 2d 859 (N.D. Ohio 2000); Woods v. Lecureux, 110 F.3d 1215 (6th Cir. 1997); Dakota Indus., Inc., v. Dakota Sportswear, Inc., 988 F.2d 61 (8th Cir. 1993); and Beard v. Flying J, Inc., 266 F.3d 792 (8th Cir. 2001).
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STATEMENT OF THE CASE & FACTS Plaintiff-appellant Michael Anthony Taylor initiated this litigation on January 3, 2005, by filing a complaint for preliminary injunctive relief, declaratory injunctive relief, and a permanent injunction against his execution by means of Missouri’s current lethal injection procedure (Doc. No. 1). He filed the amended complaint on September 12, 2005 (Doc. No. 36). In his complaints, Taylor challenged Missouri’s execution process generally. The defendant-appellee prison officials filed their motion to dismiss the case on September 26, 2005 (Doc. No. 30). Meanwhile, the prison officials filed answers to interrogatories on August 30, 2005, and to supplemental interrogatories on October 5, 2005 (Doc. Nos. 33, 42). They provided supplemental interrogatory answers on November 18, 2005 (Doc. No. 48). On November 27, 2005, after the conclusion of Taylor’s habeas proceeding, the state asked the Supreme Court to set an execution date. On November 22, 2005, the Missouri Supreme Court sustained the state’s motion to set an execution date. It ordered that an execution date would be set in due course. With this information, Taylor did not seek a hearing or other disposition of his complaint before his execution. On December 28, 2005, the district court denied the prison official’s motion to dismiss the case (Doc. No. 54). After this ruling, Taylor made no request for a hearing.
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On January 3, 2006, the Missouri Supreme Court set February 1, 2006 as Taylor’s execution date (Doc. No. 55).
On January 19, 2006, the district court granted plaintiff’s application for an order prohibiting his execution (Doc. Nos. 60, 61, 62). The prison officials appealed that order (Doc. No. 63). On January 29, 2006, the Court of Appeals vacated the stay in part and remanded the cause to the District Court for further proceedings. Taylor v. Crawford, No. 06-1278 (8th Cir. January 29, 2006).
On January 30-31, 2006, the district court held an evidentiary hearing (Doc. Nos. 74, 75). The district court found Taylor’s claims meritless (Doc. No. 76). Judgment was entered in favor of the prison officials on January 31, 2006 (Doc. No. 77). Taylor filed a Notice of Appeal on the same day (Doc. No. 80). On February 1, 2006, a panel of this Court denied Taylor’s request for stay of execution, but the Court en banc issued a stay. The United States Supreme Court declined to vacate that stay.
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State Court Procedural History Taylor was charged by indictment in the Circuit Court of Jackson County, State of Missouri, with one count of murder in the first degree, in violation of §565.020, RSMo. 1994; one count of the felony of armed criminal action, in violation of §571.015, RSMo. 1994; one count of the Class B felony of kidnapping, in violation of §565.110, RSMo. 1994; and one count of the felony of forcible rape, in violation of §566.030, RSMo. Cum. Supp. 1993. On February 8, 1991, Taylor appeared with his attorneys before the Honorable Alvin C. Randall and expressed his desire to enter a plea of guilty to these charges in open court and on the record pursuant to Missouri Supreme Court Rule 27.01(b). After a three day punishment phase hearing, Judge Randall sentenced Taylor to death. Taylor was also sentenced to life imprisonment for rape, fifteen years imprisonment for kidnapping, and ten years imprisonment for armed criminal action, all terms to run consecutively. Taylor brought a post-conviction action pursuant to Missouri Supreme Court Rule 24.035, challenging his guilty plea and sentence. After an extensive evidentiary hearing the circuit court denied Taylor's post-conviction motion. Taylor filed an appeal challenging the guilty plea, the imposition of the death penalty and the denial of the Rule 24.035 motion for post-conviction relief, and argued to
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the Missouri Supreme Court some fifteen claims of error. The Missouri Supreme Court issued the following order on June 29, 1993:
ORDER Judgment vacated. Cause remanded for new penalty hearing, imposition of sentence, and entry of new judgment. Taylor's second punishment phase hearing before Judge Michael Coburn began on May 2, 1994. Initially, Judge Coburn heard evidence for three days. The evidence was held open, and Taylor was allowed to present the testimony of additional witnesses on May 12, 1994 and June 6, 1994. The state adduced evidence concerning the abduction and murder of Ann Harrison, as well as evidence of Taylor's escape from custody. The defense called ten witnesses in purported mitigation of punishment. On June 17, 1994, over three years after he had first received the penalty of death, Taylor appeared before Judge Coburn for formal sentencing. In oral and written findings, Judge Coburn found six statutory aggravating circumstances beyond a reasonable doubt, as well as three non-statutory aggravating circumstances. Judge Coburn found the existence of one mitigating circumstance, rejecting several others offered by Taylor, and concluded that the mitigating circumstance did not outweigh the aggravating circumstances of this case, making the sentence of death appropriate. Taylor also received fifty years for armed criminal action, fifteen years for kidnapping and life imprisonment for rape, all terms to run consecutively. Taylor filed an appeal. He also sought post-
11

conviction relief under Missouri Supreme Court Rule 24.035. This time, again on
consolidated appeal, the Missouri Supreme Court affirmed. State v. Taylor, 929 S.W.2d
209 (Mo. banc 1996). The United States Supreme Court denied discretionary review.
Taylor v. Missouri, 519 U.S. 1152 (1997).
Taylor initiated a petition for writ of habeas corpus in the United States District
Court for the Western District of Missouri. The district court denied the petition, and on
May 7, 2003, this Court affirmed. Taylor v. Bowersox, 329 F.3d 963 (8th Cir. 2003), cert.
denied, 541 U.S. 947 (2004).
Statement of Facts
The Supreme Court of Missouri described the circumstances surrounding Taylor's
offenses in the direct appeal opinion.
According to Taylor's testimony at his guilty plea, Taylor's videotaped statement and other evidence adduced in the sentencing hearing, Taylor and a companion, Roderick Nunley, spent the night of March 21, 1989, driving a stolen Chevrolet Monte Carlo, stealing "T-tops," smoking marijuana and drinking wine coolers. At one point during the early morning hours of March 22, they were followed by a police car, but lost the police after a high speed chase on a highway. About 7:00 a.m., they saw fifteenyear-old Ann Harrison waiting for the school bus at the end of her driveway. Nunley told Taylor, who was driving at the time, to stop so Nunley could snatch her purse. Taylor stopped the car, Nunley got out, pretended to need directions, grabbed her and put her in the front seat between Taylor and Nunley. Once in the car, Nunley blindfolded Ann with his sock and threatened to stab her with a screwdriver if she was not quiet. Taylor drove to Nunley's house and took Ann to the basement. By this time her hands were bound with cable wire. Nunley removed Ann's clothes and had forcible sexual intercourse with her. Taylor then had forcible intercourse
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with her. They untied her, and allowed her to dress. Ann tried to persuade them to call her parents for ransom, and Nunley indicated he would take her to a telephone to call home. They put the blindfold back on her and tied her hands and led her to the trunk of the Monte Carlo. Ann resisted getting into the trunk until Nunley told her it was necessary so she would not be seen. Both men helped her into the trunk.
Nunley then returned to the house for two knives, a butcher knife and a smaller steak knife. Nunley argued with Taylor about whether to kill her. Nunley did not want Ann to be able to testify against him and emphasized he and Taylor were in this together. Nunley then attempted to slash her throat but the knife was too dull. He stabbed her through the throat and told Taylor to "stick her." Nunley continued to stab, and Taylor stabbed Ann "two or three times, probably four." He described how "her eyes rolled up in her head, and she was sort to like trying to catch her, her breath."
Nunley and Taylor argued about who wold drive the Monte Carlo, and Nunley ended up driving it following Taylor who was driving another car. Taylor picked up Nunley after he abandoned the Monte Carlo with Ann Harrison in the trunk. They returned to Nunley's house where Nunley disposed of the sock, the cable wire, and the knives.
When the school bus arrived at the Harrison home to pick up Ann, the driver honked because she was not there. Mrs. Harrison looked out of the window and noticed Ann's purse, gym clothes, books, and flute lying on the driveway. She waved for the bus to go on and began to look for her daughter. Police quickly mounted a ground and air search. Ann Harrison's body was discovered the evening of March 23rd when police found the abandoned Monte Carlo and a friend of the car's owner opened the trunk.
The State's physical evidence included hair matching Taylor's collected from Ann Harrison's body and the passenger side of the Monte Carlo, hair matching Ann's collected from Nunley's basement, sperm and semen belonging to Taylor found on Ann's clothes and body. An autopsy revealed a lacerated vagina, six stab wounds to Ann's chest, side, and back which penetrated her heart and lungs, and four stab wounds to her neck. The medical examiner testified Ann Harrison was alive when all the wounds
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were inflicted and could have remained conscious for ten minutes after the stabbing. She probably lived thirty minutes after the attack.
State v. Taylor, 929 S.W.2d 209, 214 (Mo. banc 1996) (footnote omitted). With regard to Taylor’s challenges to Missouri’s execution process in this case, the
district court described the lethal injection procedure as follows:
[T]he procedure is accomplished through the use of three drugs which are administered by a board certified physician. The physician first administers five grams of sodium pentothal, also known as thiopental, which is a substance that produces anesthesia. Thereafter, the physician administers a syringe of saline to flush the IV line. Next, the physician administers pancuronium bromide, also referred to as pancuronium. This drug is a paralytic agent which prevents any involuntary movement of the body. The physician then again administers the saline solution. Finally, the third drug which is administered is potassium chloride, which is a drug which stops the electrical activity of the heart. . . . [T]he average time to complete administration of the drugs is between two and five minutes and the average time of death from when the drugs are administered until the time of death was between two and five minutes. Dr. Dershwitz [the prison official defendants’ expert] testified that if the above outlined protocol is followed, there is no chance that an inmate would experience pain or suffering.
Order of January 31, 2006 (Doc. No. 76), at pp. 2-3.1
1This Order is included in the addendum to this Brief. 14

SUMMARY OF THE ARGUMENT The district court properly entered judgment on behalf of the defendant-appellee prison officials. The evidence produced by plaintiff-appellant Taylor and the prison officials at the evidentiary hearing amply support the fact findings and legal conclusion of the district court that Missouri’s lethal injection process does not inflict cruel and unusual punishment. As the district court found, following the administration of the first drug – on anesthetic - there is not a significant risk that a condemned prisoner will be conscious to experience the lethal effects of the other two drugs. The evidence also supported the district court’s conclusion that administration of the drugs through a femoral vein IV catheter would cause little if any pain. Taylor’s additional claims that Missouri’s lethal injection procedure violates his due process and Thirteenth Amendment rights, even if not abandoned due to omission from his brief, are also meritless. Presence of a doctor at the execution is not a breach of the doctor’s ethical obligations and, thus, cannot violate the condemned prisoner’s due process rights for that reason. Taylor’s Thirteenth Amendment claim fails because that amendment expressly excepts from its coverage those being punished for a crime and because Taylor failed to show how prisoners of different races are treated differently. With regard to Taylor’s issues concerning evidence and witnesses, the district court did not abuse its discretion in holding the hearing in a time frame that may have prevented
15

Taylor from presenting testimony from a third expert witness. That expert’s testimony would not have been of critical import and, additionally, Taylor neither articulated the substance of the expert’s expected testimony nor asked for a continuance of any length for the purpose of securing the testimony of the expert.
Neither did the district court abuse its discretion in declining to permit Taylor to call the doctor and nurse involved in Missouri executions as witnesses. The testimony Taylor proposed to elicit from them would have added little or nothing of relevance and could have been provided by other witnesses available to him.
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STANDARD OF REVIEW On review of a bench trial, as occurred here, the appellate court reviews the trial court’s findings of fact for clear error and its conclusions of law de novo. Darst-Webbe Tenant Ass'n Bd. v. St. Louis Housing Auth., 339 F.3d 702, 710-11 (8th Cir. 2003). With regard to questions involving the admissibility of evidence, district courts have wide discretion and their decisions on such questions will not be disturbed absent a showing of a clear and prejudicial abuse of discretion. Bennett v. Hidden Valley Golf and Ski, Inc., 318 F.3d 868, 878 (8th Cir. 2003). The standard of review of a denial of a motion for continuance is abuse of discretion. Beard v. Flying J, Inc., 266 F.3d 792, 802 (8th Cir. 2001).
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ARGUMENT I.
There was sufficient evidence from which the fact finder could find that the Missouri method of execution process was proper and conclude that plaintiff-appellant Taylor’s Eighth Amendment rights would not be violated by his execution because the evidence demonstrated that the dosage of the first drug in the three drug sequence rendered the condemned unconscious while the remaining drugs stopped breathing and the heart and use of the femoral vein was effective and without pain.
In the district court, Taylor contended that use of the three drug sequence would violate his Eighth Amendment rights against cruel and unusual punishment because the first drug (sodium pentothal) would wear off before death, the second drug (pancuronium bromide) would result in paralysis preventing any communication of awareness of pain, and the third drug (potassium chloride) would cause pain as it travels to the heart and stops it (Amended Complaint (Doc. No. 36), pp. 20-21). In his second count, he contended that the injection into the femoral vein would also be painful (Amended Complaint (Doc. No. 36), pp. 25-26). The district court properly rejected these grounds after an evidentiary hearing. The judgment of the district court should be affirmed.
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The Three-Drug Sequence. Evidence at hearing showed that Missouri uses a
three-drug sequence in its lethal injection process. The first drug administered is sodium
pentothal, also known as thiopental, which is a substance that produces anesthesia. The
dosage used in Missouri is 5 grams - - more than 10 times the amount used to begin a
surgery. Then the line is flushed with saline solution. The second drug is pancuronium
bromide, which acts upon the body’s muscles to prevent movement. Following a second
saline solution flush, the third drug administered is 240 millequivalent dose of potassium
chloride, which is a drug that stops the electrical activity of the heart. Order of January
31, 2006 (Doc. No. 76, at pp. 2-3). Taylor contends in his amended complaint that the
dosing of the first drug may be insufficient to prevent the painful effects of drugs two and
three on the condemned. Amended Complaint (Doc. No. 36), at pp. 3-4 & 20-21.
The district court rejected Taylor’s contention, finding that the initial dose of
sodium pentothal was sufficient to render the condemned unconscious when the second
and third drugs are administered. In particular, the district court held:
However, based upon the testimony which was presented by the witnesses, the Court does not find that there is a significant risk that the means and method which the Missouri Department of Corrections uses will cause unnecessary pain and suffering. Dr. Dershwitz testified that the dose of sodium pentothal which is administered, 5 grams, has a very long lasting effect. Thus, the likelihood that the inmate will still be conscious when the other drugs are administered is highly unlikely. Other courts who have examined this procedure have also found that it is not cruel and unusual. In Johnston v. Crawford, No. 4-04-CV-1075 CAS, (E.D.Mo. Aug. 26, 2005), the Court stated:
19

Plaintiff’s evidence is inadequate to demonstrate that Missouri’s execution protocol would subject him to the unnecessary and wanton infliction of pain, torture or a lingering death. Plaintiff’s evidence suggests only a possibility, rather than a probability, that he may remain conscious and sensate long enough to experience pain during his execution. For instance, in the affidavit of Dr. Heath submitted in support of the TRO motion, Dr. Heath opines that “the failure to properly administer the sodium pentothal” would create an unjustifiable risk that a prisoner will be conscious during the remainder of the execution. But as previously noted the ever-present possibility of human error or accident is insufficient to establish a constitutional violation. Louisiana ex rel. Francis [v. Resweber], 329 U.S.[ 459,] 464 [(1947)]: see also Estelle [v. Gamble], 429 U.S. [97,] 105 [(1976)]; Beardslee [v. Woodford], 395 F.3d [1064,] 1075 [(9th Cir. 2005)].
Furthermore, plaintiff’s evidence does not adequately demonstrate the nature or the duration of the possible pain relative to the likely degree of sedation so as to establish that the quantum of pain would violate Eighth Amendment standards. ... The record fails to establish any foreseeable probability that the use of the Missouri protocol would result in an execution involving torture of unnecessary pain of unconstitutional magnitude or length.
Id. at pp. 4-5. This conclusion has been reached by other courts that have also considered challenges to lethal injection protocols. In Beardslee v. Woodford, No. C 04-5381 JF, 2005 WL 40073 (N.D. Cal. Jan. 7, 2005), aff’d 395 F.3d 1064 (2005), the Court stated, “even with protocols under which only two grams of sodium pentothal-as opposed to the five grams used in California- are to be administered, the likelihood of such an error occurring ‘is so remote as to be nonexistent.’” Id. at *3. See also Reid v. Johnson, 333 F. Supp. 2d 543 (E.D.Va. 2004). Therefore, the Court does not find that the plaintiff has demonstrated that Missouri’s means of accomplishing lethal injection violate the Eighth Amendment.
20

Order of January 31, 2006 (Doc. No. 76), at pp. 5-6. As amply demonstrated by the district court order, there was sufficient evidence to support the district court order.
Mr. Terry Moore, the Director of Adult Institutions for the Missouri Department of Corrections testified about the procedures that would be used to execute Taylor. Order of January 31, 2006 (Doc. No. 76), at pp. 2-3. Dr. Dershwitz testified that the procedures produced no chance that an inmate would experience pain or suffering. Id., at p. 3. In particular, evidence from Dr. Dershwitz showed that the dose of the first drug, sodium pentothal, was so large that 99.9999999% of the population would be unconscious after receiving it. Defendants’ Trial Exhibit 1, at ¶ 8.2 Of course, unconsciousness, instead of death, would depend on the presence of life support devices to keep the lungs going and to support blood pressure. Testimony of Dr. Dershwitz. The effect of the sodium pentothal itself would kill the condemned, but more slowly than if all three drugs are administered. Testimony of Dr. Dershwitz; Defendants’ Trial Exhibit 1, at ¶ 8. Although not an anesthesiologist, plaintiff’s expert, Dr. Groner, concurred that the dose of sodium pentothal was lethal. Order of January 31, 2006 (Doc. No. 76), at p. 3. Taylor’s other expert, Dr. Heath, concurred in this conclusion, with the caveat that death would take up to twenty minutes in some individuals. Id., at p. 4.
2Defendants’ Trial Exhibit 1 is included in the addendum to this Brief. 21

Again, the district court’s findings and conclusions were amply supported by the evidence - not only by the testimony cited by the court, but by Defendants’ Trial Exhibits 1, 3, 4 and 5.3 As reported by the district court, even the testimony presented by Taylor is consistent as to the effect of the five gram dose of sodium pentothal upon the body. Order of January 31, 2006 (Doc. No. 76), at pp. 3-4. That dose produces immediate unconsciousness and, over a slightly longer period, death. Id. Taylor articulates no disagreement with these findings and conclusions in his brief before this court.
Instead, on appeal Taylor attempts to find a reversible issue as to drug 3, potassium chloride. He claims that administration of drug 3 is painful. Taylor’s brief, p. 17. Assuming that is true, it ignores the context of the lethal injection, where potassium chloride is the third drug injected, not the first. The five gram dose of the first drug, sodium pentothal, which renders 99.9999999% of the condemned unconscious (Defendants’ Trial Exhibit No. 1), fulfills its purpose of being an effective anesthesia. In the context of lethal injection, the condemned would not feel any of the alleged pain from the potassium chloride. Testimony of Dr. Dershwitz; Defendants’ Trial Exhibit No. 1.
On appeal, Taylor cannot validly argue that drug 3 will cause pain. Thus, he suggests that drug 3 creates a “needless risk of pain.” Taylor’s brief, p.17. But again, all experts agreed that the five grams of sodium pentothal was a lethal dose. Dr. Dershwitz
3Defendants’ Trial Exhibits 3, 4, and 5 are also included in the addendum to this Brief.
22

established that 99.9999999% of the condemned would be unconscious after receiving that dose. Defendants’ Trial Exhibit No. 1. The risk of pain is minuscule.
On appeal, Taylor also suggests that Dr. Dershwitz “presented no testimony about the data he used to form this opinion, and [he] had never witnessed a Missouri execution.” Taylor’s brief, p. 17. Taylor did not object to Dr. Dershwitz testifying as an expert witness. He did not object to the testimony and opinions of Dr. Dershwitz as not having a sufficient foundation. And, as noted by the district court, Taylor’s experts, Drs. Groner and Heath, also testified that five grams of sodium pentothal was a lethal dose.
Taylor also criticizes Dr. Dershwitz’s testimony because Dr. Dershwitz had not personally administered a dose of five grams of sodium pentothal. Taylor’s brief, p. 20. If this is a criticism of Dr. Dershwitz’s opinion, then, as noted, Taylor did not object on this basis at trial. And Taylor’s experts did not testify that they had administered five grams of sodium pentothal; thus, under Taylor’s theory, their testimony is similarly inadmissable or suspect. But Dr. Dershwitz did properly identify himself with sufficient qualifications to be an expert witness. Defendants’ Trial Exhibit 2 (Dr. Dershwitz’s CV).
Taylor also criticizes Dr. Dershwitz’s testimony because Dr. Dershwitz works in an operating room with monitoring equipment. Taylor brief, pp. 20-21. Taylor did not make an evidentiary objection at trial on this basis. Moreover, operating room equipment does not make Drs. Dershwitz, Heath, or Groner any more or any less an expert witness
23

with relevant testimony. And, in any event, the condemned is linked to a monitor, an EKG, which will show the end of electrical activity in the heart. See testimony of Terry Moore.
On appeal, Taylor asserts that the lethal injection process is a “medical procedure”; thus, he has a constitutional right to have it conducted according to a “medical standard of care.” Taylor’s brief, p. 21. The premise of the contention is unproven. It is not a “medical procedure,” but rather a means of implementing punishment, carried out due to the lawful judgment entered by the Jackson County (Missouri) Circuit Court due to Taylor’s conviction for first degree murder. Lethal injection is a method of punishment that the Missouri Legislature has made the Missouri Department of Corrections responsible for implementing. Whether the Department uses or does not use medical personnel is a matter of discretion for the Department. And its use of such personnel does not transform the punishment into a “medical procedure,” that is to be measured by a “medical standard of care” by a preemptive medical malpractice lawsuit, cloaked as a civil rights lawsuit or a habeas petition before each and every execution.
In summary, the five gram dose of sodium pentothal is sufficient to render 99.9999999% of the condemned unconscious. Accordingly, the district court, and indeed every court that has considered this issue, has properly concluded that the Eighth
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Amendment prohibition against cruel and unusual punishment is not violated by
execution by lethal injection.
Femoral Vein Access. In Count II of the amended complaint, Taylor complained
about the use of his femoral vein for the lethal injection. Amended complaint, pp.25-26.
The district court heard evidence about this process during the trial and concluded that
Taylor’s Eighth Amendment rights would not be violated by use of this process. The
district court determination should be affirmed.
After hearing evidence about access to the venous system through the femoral vein,
the district court concluded:
Plaintiff also argues that method by which the drugs are administered is also cruel and unusual in that the drugs are administered through the femoral vein, rather than through a vein in the inmates’s arm. However, the Court is also not persuaded that this constitutes cruel and unusual punishment. The testimony was that an injection is administered to numb the area before the catheter is inserted so that the inmate will experience little if any pain. There was testimony that complications can arise with the placement of the catheter and that it might become dislodged or that it is sometimes difficult to locate the femoral vein. However, as noted, above, these slim possibilities do not show that the procedure is cruel and unusual.
Order of January 31, 2006 (Doc. No. 76), at pp. 6-7. The text of Taylor’s brief does not
challenge the factual findings by the district court. He does not show that they are “clearly
erroneous.” Fed. R. Civ. P. 52(a). Instead Taylor quibbles about the weight of the
evidence vis-a-vis those findings. The court should reject those arguments.
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The evidence at the hearing showed the importance of delivering the initial five gram dose of sodium pentothal. Plaintiff’s expert Dr. Heath premised his conclusion that five grams of sodium pentothal was a lethal dose upon it being administered properly into the condemned. See also Johnston v. Crawford, No. 4:04-CV-1075 CAS, slip op. at 5 (E. D. Mo. Aug. 26, 2005) (quoting Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005). Indeed, Taylor alleges 12 “botched” executions due to problems with IV access through the peripheral (hands and arms) venous access, Taylor’s brief, p. 22,4 the alternative to femoral vein access. But testimony by Taylor’s experts at the hearing provided anecdotal evidence of two executions involving the access: Mr. High of Georgia and Mr. Ross of Connecticut. Testimony indicated there were multiple attempts to find a suitable peripheral vein on those individuals. With Mr. Ross, after several attempts, a vein was found, and with Mr. High, a doctor obtained access to a vein under the clavicle.
And testimony at the hearing indicated that access by the femoral vein is easy to obtain. Generally, the vein is big and easy to locate. Access to the vein is obtained by needle. A local numbing agent reduces discomfort. The area is cleansed to avoid infections. Access is obtained by a board-certified surgeon. Testimony at the hearing
4There was no testimony about 12 or 22 “botched” executions before the district court and Taylor cites no evidence to support his contention about “botched” executions. Taylor’s brief, p. 22.
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establishes the rigorous training all surgeons receive. The Johnston court also recognized that the procedure in Missouri was performed by a board-certified surgeon who was qualified to perform the procedure. Johnston v. Crawford, No. 4:04-CV-1075 CAS, slip op. at 8 (E. D. Mo. Aug. 26, 2005).
Taylor contends, at page 18 of his brief, that use of the femoral vein creates an “additional risk of discomfort.” He argues, in essence, that because it is not known that the peripheral veins will not be sufficient, the state should be required to try those first despite the problems his experts identified in the High and Ross cases. As noted above, effective access to the venous system is necessary to deliver the five gram dose of sodium pentothal.
Taylor’s experts suggested there is a risk of accident by femoral vein access. But as noted by Dr. Heath, Taylor’s expert, there are also risks of accident by using the peripheral veins. The word “risks” is but another name for accident, which Taylor concedes is not a basis for an Eighth Amendment claim. Taylor brief, p. 18. See also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 461-3 (1947).
On appeal, Taylor complains that with femoral vein access, there is a risk of accident from striking bone or a nerve. Taylor brief, p. 20. Dr. Heath testified that a similar risk exists with the peripheral vein access. And there was also testimony about those problems with Mr. High and Mr. Ross. But accidents with either the peripheral vein
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access or femoral vein access do not constitute a violation of the Eighth Amendment. Francis, 329 U.S. at 461.
Lastly, Taylor suggests that use of the femoral vein access is a procedure that is not medically necessary; thus, it is inconsistent with the “medical standard of care” necessary for a medical procedure. Taylor’s brief, p. 21. As noted earlier, a lethal injection is not a medical procedure for which the Eighth Amendment requires a preexecution malpractice suit in the guise of a civil rights or habeas action. Instead, a lethal injection is a method of punishment for Taylor’s crime of first degree murder. “Medical standard of care” does not have meaning in this context.
The district court’s findings rejecting Taylor’s factual assertions that Missouri’s lethal injection procedure will likely cause undue pain are very well supported and not clearly erroneous. The district court’s legal conclusion that Missouri’s execution process does not inflict cruel and unusual punishment is cogent and well reasoned and should be upheld by this Court as correct as a matter of law.
Taylor has abandoned Counts III and IV in his brief to this Court by not addressing them. Even if had not abandoned them, the district court’s judgment against Taylor as to these two claims is well-supported both factually and legally.
As to Taylor’s Count III claim that the presence of a doctor at his execution would violate his due process rights because that would be a breach of the doctor’s ethical
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obligations, the district court correctly determined that claim to be meritless. The district
court concluded that a doctor’s participation in the execution process does not violate the
doctor’s code of ethics and does not violate a condemned prisoner’s due process rights.
Order of January 31, 2006 (Doc. No, 76), at pp. 7 & 9. The court supported this
conclusion both logically and on the basis of the existing case law on this point. Id., at p.
7 (citing Abdur’Rahman v. Bredesen, No. M2003-01767-COA-R3-CV, 2004 WL
2246227, *9 (Tenn. Ct. App. Oct. 6, 2004), aff’d, 2005 WL2615801 (Tenn. Oct 17, 2005)).
The district court also found Taylor’s Thirteenth Amendment claim in Count IV
to be meritless because the amendment expressly excepts those being punished for a crime
and because Taylor failed to show how prisoners of different races are treated differently.
Order of January 31, 2006 (Doc. No, 76), at p. 8 (citing Wendt v. Lynaugh, 841 F.2d 619,
620 (5th Cir. 1988); Draper v. Rhay, 315 F.2d 193, 197 (9th Cir. 1963), cert. denied, 375
U.S. 915, 84 S. Ct. 214 (1963)).5
5Petitioners do not concede here that the action is properly one under § 1983. Taylor does not claim an individualized harm from the planned means of execution. Rather, his challenge is to Missouri’s method of execution as a general matter (as illustrated by Taylor’s former co-plaintiff Clay joining Taylor’s case and raising the identical challenges to Missouri’s lethal injection process). Even in Nelson v. Campbell, 541 U.S. 637, 644, 124 S. Ct. 2117, 2123 (2004), the United States Supreme Court did not hold that all method-of-execution claims could be pursued as ordinary civil litigation under § 1983. Regardless of whether this case is a suit under 42 U.S.C. § 1983, or a habeas action, the district court judgment rejecting Taylor’s claims should be affirmed. If this case is a habeas action, the rejection of Taylor’s claims is appropriate because he never obtained approval to proceed from this Court as required by 28 U.S.C. § 2244(b)(3) (before a second or successive application for
29

habeas relief is filed in the district court, the applicant must obtain authorization to do so from the Court of Appeals). If this case is under § 1983, then the district court’s judgment should also be affirmed based on its well-supported findings of fact and its cogent application of the law to those facts.
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II. The district court did not abuse its discretion (1) in refusing to permit plaintiff-appellant Taylor to call the doctor and nurse involved in Missouri executions as witnesses where the testimony Taylor proposed to elicit from them would have added little or nothing of relevance or could have been provided by other witnesses available to Taylor, or (2) in holding the hearing in a time frame that may have prevented Taylor from presenting testimony from an expert witness where the expert’s testimony would not have been of critical import and where Taylor neither articulated the substance of the expert’s expected testimony nor unequivocally asked for a continuance of any length for the purpose of obtaining the expert as a witness. Contrary to Taylor’s assertion, the hearing in this case was neither truncated nor otherwise unfair. Taylor has had ample time and ability (and has made good use of it) to pursue his claims since his conviction. Likewise, he had ample opportunity to address his claims in this case with regard to the constitutionality of Missouri’s lethal injection procedure. Following a trial at which both sides were provided a thorough and fair opportunity to litigate the matter, the district court here correctly concluded that Missouri’s lethal injection procedure is constitutional. Order of January 31, 2006, at p. 9 (Doc. No. 76). See also Johnston v. Crawford, No. 4:04-CV-1075 CAS, slip op. at pp.
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9-10 (E.D. Mo. August 26, 2005); Johnston v. Roper, 421 F.3d 1152 (8th Cir. 2005) (en banc) (review and denial of Johnston’s motion for stay of execution).
The parties here presented scientific evidence in support of and in opposition to Taylor’s claims. The court’s recognition of the invalidity of these claims was not the result of undue haste or inability to present critical evidence, but rather of the court’s careful and reasoned analysis of the evidence.
Taylor had sufficient time to prepare his case. Taylor’s protestations of lack of fair notice to prepare his case before the hearing do not take note of his own failure to file a motion for any sort of equitable relief regarding his impending execution until more than two weeks after his execution date had been set or his failure to seek a ruling from the court on the merits of his claims. This suit has been on file since June 2005. Taylor had over six months to prepare for the hearing he sought and which he knew would need to occur before an expected execution date at a time in the not-too-distant future. He also had nearly a month after the January 3, 2006, issuance of the execution warrant in this case to prepare his case. This warrant placed him on notice that to raise his claims in a meaningful manner, he would need to have his evidence prepared for a trial by his scheduled February 1 execution date. This preparation could easily have included the taking of discovery and preservation depositions of necessary expert and fact witnesses. The choice not to engage in such preparation was Taylor’s own.
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Proposed testimony of Dr. Melethil. In particular, Taylor complains of an inability to present evidence from Dr. Srikumaran Melethil, a pharmacokineticist. But Taylor admits both that “counsel for [his] team” had been in consultation with this doctor previously and that the doctor had returned from “out of town” by the morning of January 31. Taylor’s Brief, at p. 14. Because Taylor’s lawyers had been consulting with the doctor for a time before the trial in this case,6 they had the opportunity to work with the doctor to prepare testimony regarding the effects of the drugs used in Missouri’s execution process for use at trial. Taylor also had the opportunity to call Dr. Melethil to testify at the trial because it reconvened at 9:30 a.m. on the morning the doctor returned to town and continued until nearly noon.
Taylor asserts, however, that he was still unable to provide the doctor with data from the defense expert, Dr. Mark Dershwitz. Aside from noting again that Taylor had more than six months to conduct discovery in this case, Taylor also had knowledge both that Dr. Dershwitz would be the defense expert from early in this suit and of his opinions regarding Missouri’s lethal injection procedure. See Defendants’ Motion to Dismiss (Doc. No. 38) and Exhibit D to that motion (copy of district court Memorandum and
6A lawyer on Taylor’s team (counsel to former co-plaintiff Richard D. Clay) has been in contact with Dr. Melethil since mid-September. See Declaration of Srikumaran (Sri) K. Melethil, Ph.D., J.D., at ¶ 2. The ability of this Court to consider this Declaration, which has been filed with this Court, but was not part of the record before the district court, is discussed below.
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Order entered in Johnston v. Crawford, No. 4:04-CV-1075 CAS (E.D. Mo. Aug. 26, 2005), which discussed opinions of Dr. Dershwitz).7 (As public records, Taylor would also have had access to a transcript of Dr. Dershwitz’s testimony from Johnston v. Crawford and his affidavit submitted in that case.)
Leaving these foregone litigation opportunities aside, Taylor also made no apparent attempt to call Dr. Melethil to testify even to the simple and straight forward proposition, as expressed in Taylor’s Brief, at p. 14, that Dr. Dershwitz’s analysis was flawed because his conclusions were based on drug levels in the blood instead of drug levels in the brain.
Taylor, at page 16 of his Brief, compares his position here regarding his purported inability to develop and provide testimony from Dr. Melethil to a denial of a continuance. But, while Taylor did object to the timing of the trial in this case in general, he did not request a continuance in the close of evidence to permit him to obtain testimony from his third expert. Even though Taylor admitted the return to town of Dr. Melethil on the morning of January 31, and had received a stay of execution until 5 p.m. on February 1, he did not move for a brief continuance in the close of evidence until later that day or early the next morning to procure the testimony of Dr. Melethil. Given Taylor’s failure to make such a motion, he cannot now claim error in this regard on the part of the district court.
7It is also apparent that Taylor was in possession of a transcript of Dr. Dershwitz’s testimony from Johnston v. Crawford and his affidavit submitted in that case. See Declaration of Srikumaran (Sri) K. Melethil, Ph.D., J.D., at ¶ 7.
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In any event, Taylor had already presented testimony from two other experts, a trauma specialist and anaesthesiologist and he did not explain to the court how additional evidence from Dr. Melethil would have added anything probative to his claims. Even if Taylor’s statements regarding Dr. Melethil could be construed as an implicit motion for continuing the close of evidence for a time, the district court would not have abused its discretion in denying the motion. See Beard v. Flying J, Inc., 266 F.3d 792, 802 (8th Cir. 2001) (no abuse of discretion in denial of continuance where proposed additional witness did not prejudice movant’s case).
Having passed on the opportunities to develop his case, Taylor’s complaints now about lack of a full opportunity to provide relevant evidence are not compelling.
Taylor has now submitted to this Court a “Declaration of Srikumaran (Sri) K. Melethil, Ph.D., J.D.” Because this Declaration is not part of the record before the district court, this Court would not normally consider it. Dakota Indus., Inc., v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir. 1993). Even if this Court determines that the Declaration of Dr. Melethil fits within that rarely applied narrow exception to the general rule that an appellate court may consider only the record made before the district court, see id., the Declaration shows that testimony from Dr. Melethil would have added little to the trial. Nothing in the Declaration calls the district court’s judgment into doubt.
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The district court, based on the testimony of Dr. Dershwitz, found the 5 gram dose of Thiopental that is administered as the first drug in the lethal injection process to be sufficient to render the condemned unconscious throughout the administration and lethal effect of the second two drugs. Order of January 31, 2006 (Doc. No. 76), at pp. 5-6. See also Defendants’ Trial Exhibits 1, 3, 4, and 5. Dr. Melethil’s speculation in the Declaration about the concentration of Thiopental in the brain over time, based on animal studies and lower dosages of Thiopental than used in Missouri executions, does not undermine the district court’s conclusion that Missouri’s lethal injection process does not cause wanton pain to condemned prisoners. This is true especially because he does not contradict the evidence that the dose of Thiopental at issue here is not a marginal one, but one that both of Taylor’s testifying experts state was lethal in itself. See Order of January 31, 2006 (Doc. No. 76), at p. 4.
The Declaration of Dr. Melethil provides no suggestion that a dose of Thiopental sufficient to result in death could permit any return to consciousness between the initial administration of the drug and its lethal effect, much less between the initial administration of the first drug and the administration of the second and third drugs. Any suggestion of a possibility of a return to consciousness that could have been testified to by Dr. Melethil pales to insignificance in light of Dr. Dershwitz’s testimony that the 5 gram dose of Thiopental administered as part of Missouri’s lethal injection procedure
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would, with as near certainty as statistics can determine, render a person unconscious and insensate to pain for hours. The absence of evidence from Dr. Melethil in this case was not prejudicial to Taylor. Even if he had testified, the result would have been the same.
District Court’s refusal to permit testimony from medical personnel involved in Missouri’s executions. Taylor’s related claim, that he was denied a fair opportunity to make his case at the district court hearing because he was not permitted to call the doctor and nurse who are present at Missouri’s executions is also unavailing. Testimony from these witnesses would be of no relevance. The challenge here is to the method of execution. Taylor has been given detailed information as to the drugs used, their doses, and the order and the manner of administration. That method is what it is regardless of who the Missouri Department of Corrections assigns in any given instance to prepare the drugs and set the IV.
Taylor’s contention that the testimony of these witnesses is relevant as to their alertness as to the possibility of pain experienced by the condemned and for their observations at executions, Taylor’s Brief, at p. 12, is also of no avail. The alertness of medical personnel to the possibility of pain is not relevant because Taylor’s claim here is not inadequate monitoring of executions for distress on the part of the condemned, but whether there is any actual infliction of undue pain by the execution procedure. Considering the thrust of Taylor’s claim being that execution by means of the procedure
37

used in Missouri will mask pain experienced by the condemned, the observations of persons present at executions is not a fruitful or relevant area of inquiry. Even if testimony from persons present at executions is considered at all relevant, it is still properly excludable if its minimal probative value “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403.
The unfair prejudice at issue here is the risk to the security and privacy of whatever doctor and nurse may be involved in an execution should their testimony in a case lead to notice to the general public of their involvement in executions. If the participating doctor and nurse are identified, this could well lead to them being targeted for harassment or even physical retaliation by offenders, their families, their friends, or others opposed to the death penalty. The district court, in recognition of these important security and privacy interests, declined to require the prison official defendants to disclose the identities of persons directly involved in executions in discovery. Protective Order of October 31, 2005 (Doc. No. 46), at p. 2.
The real possibility that disclosure of the identities of persons directly involved in the execution process may result in harassment and possible physical retaliation may also cause trained medical staff and correctional staff to be hesitant, or to decline, to participate
38

in the execution process. That would hamper the ability of the State of Missouri to find personnel to carry out state-imposed, constitutionally-authorized, and meticulouslyreviewed state death sentences.8
Another factor to be considered in weighing process required by Rule 403 is whether the same evidence can be provided by other witnesses. Mercurio v. Nissan Motor Corp., 81 F. Supp. 2d 859, 861 (N.D. Ohio 2000). See also Woods v. Lecureux, 110 F.3d 1215, 1219 (6th Cir. 1997) (preclusion of confusing and unfairly prejudicial evidence upheld where district court did not restrict other relevant evidence). The district court here did not restrict Taylor’s ability to call other witnesses who have viewed executions in Missouri. There are, in fact, other witnesses to executions who could provide testimony as to their observations of executions, see § 546.740, RSMo. Taylor does not claim to have made any effort to obtain such alternative testimony. Further, Terry Moore, Director of the Division of Adult Institutions of the Missouri Department of Corrections, was a witness at the trial in this case. Despite Director Moore’s testimony that he had been involved in recent executions, Taylor made no inquiry as to his observations at those executions.
8The prison official defendants also note that Dr. Groner, one of Taylor’s experts, conceded during his testimony that he reports physicians with any role in executions to their local licensing authorities for breach of their ethical duties. See testimony of Dr. Groner. This kind of threat to a professional’s license would impede the ability of a state to obtain the services of medical personnel in the execution process should their identities become known.
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Taylor next asserts that he needed to call the medical personnel present at executions to explore their qualifications to perform the activities they engage in at executions. While the qualifications of the doctor and nurse to be assigned by the Department may have some relevance here, Taylor has been provided with that information. The district court assessed Taylor’s need for information as to the qualifications of the medical personnel and instructed the prison official defendants to provide him with the information that is reasonably necessary – “information as to the general training, credentials, and qualifications of persons (i.e.: Registered Nurses in the State of Missouri or Licensed Medical Doctors identifying any certified or specialized training) involved in executions in the State of Missouri.” Protective Order of October 31, 2005 (Doc. No. 46), at pp. 1-2. Pursuant to this order the prison official defendants have, subject to the protective order, provided Taylor with the qualifications of the doctor and nurse expected to be assigned to his execution, including the information that the doctor is a Missouri licensed physician and a board certified surgeon and that the nurse is a licensed practical nurse. This licensing and certification evidence was also placed into the record at the trial in this case through the testimony of Director Moore.
This evidence of qualifications of the medical personnel was sufficient for Taylor to make his points at trial considering the testimony from his experts that a board certified surgeon was not necessarily qualified to set a femoral vein IV and that neither a board
40

certified surgeon nor a licensed practical nurse were necessarily qualified to mix Thiopental. Taylor’s expert’s opinions on these points was contradicted by the prison officials’ expert, who testified that a board certified surgeon was well-qualified to set a femoral vein IV and that mixing Thiopental was a simple process of mixing two containers prepackaged by the manufacturer that could be easily learned through demonstration and some practice.
The district court’s decisions regarding the need for testimony from, and about, the doctor and nurse struck the proper balance between Taylor’s need for information and the prison officials defendants’ (and the medical personnel’s) concern that identifying the doctor and nurse would result in their safety and security being put at risk from strident death penalty opponents. These decisions did not unduly restrict Taylor’s ability to establish his claims. Whatever marginal relevance testimony from the medical personnel may have had here, it was outweighed by the unfair prejudice to the defendants that would have resulted and the ability of Taylor to provide comparable evidence from other witnesses.
Summary. The district court’s decisions as to the challenged evidentiary matters were very reasonable and cannot be disturbed as an abuse of discretion.
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CONCLUSION As shown above, the evidence in this case was more than sufficient to support the judgment of the district court and the district court’s evidentiary rulings were wellreasoned and well within its discretion. Therefore, the prison official defendants urge this Court to affirm the district court’s judgment that Missouri’s lethal injection procedure is constitutional. Taylor’s execution should also be allowed to proceed.
Respectfully submitted, JEREMIAH W. (JAY) NIXON Attorney General
MICHAEL PRITCHETT Assistant Attorney General Missouri Bar No. 33848
STEPHEN HAWKE Assistant Attorney General Missouri Bar No. 35242 P. O. Box 899 Jefferson City, Missouri 65102 Telephone No. (573) 751-3321 Fax No. (573) 751-9456 ATTORNEYS FOR APPELLEES CRAWFORD AND PURKETT
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CERTIFICATE OF SERVICE I hereby certify that two true and correct copies of this brief, and a 3½ inch, labeled diskette containing this brief, were mailed, postage prepaid, this 6th day of February, 2006, to: John W. Simon, Attorney at Law 2683 South Big Bend Boulevard, # 12 St. Louis, MO 63143-2100
______________________________ Assistant Attorney General
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CERTIFICATE OF COMPLIANCE I hereby certify that the text of the foregoing document, excluding the Summary and Request for Oral Argument, the Table of Contents, the Table of Authorities, the Certificate of Service, the Certificate of Compliance, and the Addendum, contains 8727 words of proportional spacing as determined by the automated word count of the WordPerfect 9 word processing system used and has 14-point print size, and that the diskette submitted with the instant brief has been scanned for viruses and is virus-free.
_____________________________ Assistant Attorney General
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Addendum Page No.
District Court Order of January 31, 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Defendants’ Trial Exhibit 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Defendants’ Trial Exhibit 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Defendants’ Trial Exhibit 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Defendants’ Trial Exhibit 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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 CASREF, CLOSED, PHV
U.S. District Court United States District Court for the Western District of Missouri (Jefferson
City) CIVIL DOCKET FOR CASE #: 2:05−cv−04173−FJG

Taylor v. Crawford et al Assigned to: Chief District Judge Fernando J. Gaitan, Jr Referred to: Magistrate Judge William A. Knox

Case in other court:

8th Circuit, 06−01397

8th Circuit, 06−02914

Supreme Court of the United States, 07−00303

Cause: 42:1983 Prisoner Civil Rights

Plaintiff

Date Filed: 07/28/2005 Date Terminated: 10/16/2006 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Michael Taylor

represented by Donald B Verrilli Jenner &Block 601 13th Street Ste. 1200 South Washington, DC 20005 202−639−6000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Berger Jenner &Block LLP 601 13th Street NW Suite 1200S Washington, DC 20005 202−639−6000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ginger Anders Jenner &Block LLP 601 13th Street NW Ste 1200S Washington, DC 20005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John William Simon Constitutional Advocate, LLC P.O. Box 26412 Kansas City, MO 64196−9998 (314) 604−6982 Fax: (314) 754−2605 Email: simonjw1@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew S. Hellman Jenner &Block, LLC 601 13th Street NW Suite 1200 Washington, DC 20005 (202) 639−6861 Fax: (202) 661−4983 Email: mhellman@jenner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Richard D Clay TERMINATED: 01/30/2006
Intervenor Plaintiff Reginald Clemons TERMINATED: 01/31/2006
V. Defendant Larry Crawford Director, MO Dept. of Corrections

C. John Pleban Pleban &Associates, LLC 2010 South Big Bend St. Louis, Mo 63117 (314) 645−6666 Fax: 314−645−7376 Email: cpleban@plebanlaw.com ATTORNEY TO BE NOTICED
Lynette M. Petruska Pleban &Associates, LLC 2010 South Big Bend Blvd. St. Louis, MO 63139 (314) 645−6666 Fax: (314) 645−7376 Email: lpetruska@plebanlaw.com ATTORNEY TO BE NOTICED
represented by Jennifer Herndon 224 Hwy 67 North #122 Florissant, Mo 63031 (3134) 831−5531 Fax: (314) 831−5645 Email: jenifer@ix.netcom.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Unger Carlyle PO Box 962 Columbus, MS 39703 (816)525−6540 Fax: (866)764−1249 Email: elizcar@bellsouth.net ATTORNEY TO BE NOTICED
represented by Mark G. Arnold Husch Blackwell Sanders, LLP 190 Carondelet Plaza Suite 600 St. Louis, MO 63105−3441 (314) 480−1802 Fax: (314) 480−1505 Email: mark.arnold@huschblackwell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael Pritchett Missouri Attorney General P.O. Box 899 Jefferson City, MO 65102 573/751−8864 Fax: (573) 751−9456 Email: mike.pritchett@ago.mo.gov

Defendant
James D Purkett Superintendent, Eastern Reception Diagnostic &Correctional Center
Defendant
John Does 1−666 (Anonymous Executioners)

ATTORNEY TO BE NOTICED
represented by Michael Pritchett (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/03/2005 06/03/2005 06/03/2005 06/03/2005 06/03/2005 06/03/2005 06/03/2005 06/03/2005
06/03/2005 06/03/2005 06/03/2005

# Docket Text
1 COMPLAINT VERIFIED for Preliminary Injunctive Relief, Declaratory Injunctive Relief, and Permament Injunctive Relief against all defendants (Filing fee $250 receipt number IFP) Service due by 10/3/2005, filed by John William Simon on behalf of Michael Taylor.(Simon, John) (Entered: 06/03/2005)
2 Motion for Leave to Proceed IFP filed by John William Simon on behalf of Michael Taylor.(Simon, John) Modified on 6/6/2005 to correct docket text(Bax, Laura). (Entered: 06/03/2005)
3 Memorandum in Support of Motion for Leave to Proceed IFP filed by John William Simon on behalf of Michael Taylor. (Attachments: # 1 Affidavit Affidavit of Indigence in Support of Motion for Leave to Proceed IFP)(Simon, John) Modified on 6/6/2005 to correct docket text(Bax, Laura). (Entered: 06/03/2005)
4 CERTIFICATE of counsel of Tendering of Waivers of Service of Process by John William Simon on behalf of Michael Taylor (Attachments: # 1 # 2 # 3)(Simon, John) (Entered: 06/03/2005)
5 Supplement to complaint by Michael Taylor re 1 Complaint, Notice of Filing of Exhibit 1 (Attachments: # 1 Exhibit 1 Heath Declaration# 2 Exhibit 1, Heath Exhibit 1, Curriculum Vitae)(Simon, John) Modified on 6/6/2005 to correct docket text (Bax, Laura). (Entered: 06/03/2005)
6 Supplement to complaint by Michael Taylor re 1 Complaint, Exhibit 2 (Attachments: # 1 Exhibit Exhibit 2, Lubarsky Declaration# 2 Exhibit Lubarsky Exhibit 2, Curriculum Vitae# 3 Exhibit Lubarsky Exhibit 2, Lancet Article)(Simon, John) Modified on 6/6/2005 to correct docket text (Bax, Laura). (Entered: 06/03/2005)
7 Supplement to complaint by Michael Taylor re 1 Complaint, Exhibits 3−7 (Attachments: # 1 Exhibit 3# 2 Exhibit 4# 3 Exhibit 5# 4 Exhibit 6# 5 Exhibit 7)(Simon, John) Modified on 6/6/2005 to correct docket text(Bax, Laura). (Entered: 06/03/2005)
8 Supplement to complaint by Michael Taylor re 1 Complaint, Exhibits 8−10 (Attachments: # 1 Exhibit 8, Affidavit re Filing of IRR in Brown# 2 Exhibit 9 Defendants' Motion to Dismiss Exhibit in Brown# 3 Exhibit 10 Declaration of Michael Lenza# 4 Exhibit 10, Declaration Exhibit 1, Curriculum Vitae of Jan 2005)(Simon, John) Modified on 6/6/2005 to correct docket text (Bax, Laura). (Entered: 06/03/2005)
9 Supplement to complaint by Michael Taylor re 1 Complaint, Exhbit 11 (Attachments: # 1 Exhibit 11)(Simon, John) Modified on 6/6/2005 to correct docket text (Bax, Laura). (Entered: 06/03/2005)
10 Supplement to complaint by Michael Taylor re 1 Complaint, Exhibits 12−15 (Attachments: # 1 Exhibit 12# 2 Exhibit 13# 3 Exhibit 14# 4 Exhibit 15)(Simon, John) Modified on 6/6/2005 to correct docket text (Bax, Laura). (Entered: 06/03/2005)
11 Supplement to complaint by Michael Taylor Exhibits 16−17 (Attachments: # 1 Exhibit 16# 2 Exhibit 17)(Simon, John) Modified on 6/6/2005 to correct docket text(Bax, Laura). (Entered: 06/03/2005)

06/03/2005 06/06/2005 06/06/2005 06/10/2005
06/14/2005 07/07/2005 07/15/2005 07/28/2005 07/29/2005 07/29/2005 07/29/2005 07/31/2005 07/31/2005 08/01/2005 08/01/2005 08/01/2005

12 Supplement to complaint by Michael Taylor re 1 Complaint, Exhibit 18 (Attachments: # 1 Exhibit 18)(Simon, John) Modified on 6/6/2005 to correct docket text(Bax, Laura). (Entered: 06/03/2005)
MOTION for leave to proceed in forma pauperis filed byJohn William Simon on behalf of Michael Taylor. Suggestions in opposition/response due by 6/21/2005 unless otherwise directed by the court. This document is filed as document #2. (Bax, Laura) (Entered: 06/06/2005)
13 ORDER REFERRING CASE to Magistrate Judge Knox. Signed by Judge Scott O. Wright on 6/6/05. (Bax, Laura) (Entered: 06/06/2005)
14 SUGGESTIONS in support re MOTION for leave to proceed in forma pauperis Supplemental Memorandum with Certified Inmate Account Statement Attached filed by John William Simon on behalf of Plaintiff Michael Taylor. (Attachments: # 1 Exhibit Certified Inmate Account Statement)(Related document(s)[]) (Simon, John) (Entered: 06/10/2005)
15 Inmate ACCOUNT STATEMENT by Michael Taylor. Fee calculated. (James, Carrie) (Entered: 06/14/2005)
16 NOTICE of appearance by Michael Pritchett on behalf of Larry Crawford, James D Purkett (Pritchett, Michael) (Entered: 07/07/2005)
17 MOTION to intervene filed byJennifer Herndon on behalf of Richard D Clay Suggestions in opposition/response due by 8/1/2005 unless otherwise directed by the court (Herndon, Jennifer) (Entered: 07/15/2005)
18 ORDER granting [] motion for leave to proceed in forma pauperis, assessing initial fee of $26.80; granting 17 motion to intervene. Signed by Judge William A. Knox on 7/28/2005. (Bode, Kay) Modified on 8/11/2005 to correct docket text (Bode, Kay). (Entered: 07/28/2005)
NOTICE of hearing:Telephone Status Conference regarding the issue of preliminary injunctive relief set for 8/1/2005 09:00 AM in Magistrate Courtroom, Jefferson City (WAK) before William Knox. The Court will initiate the call to all parties.(James, Carrie) (Entered: 07/29/2005)
Motion for Reconsideration of Order 18 filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett. (Attachments: # Exhibit A)(Related document(s) 18 ) (Pritchett, Michael) document deleted and refiled correctly as a motion. (Entered: 07/29/2005)
30 MOTION for reconsideration 18 filed byMichael Pritchett on behalf of Larry Crawford, James D Purkett Suggestions in opposition/response due by 8/11/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit) refiled by the court as a motion(Price, Jackie) (Entered: 08/25/2005)
20 MOTION for discovery to shorten time filed byJohn William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 8/15/2005 unless otherwise directed by the court (Simon, John) (Entered: 07/31/2005)
21 SUGGESTIONS in support re 20 MOTION for discovery to shorten time filed by John William Simon on behalf of Plaintiff Michael Taylor. (Attachments: # 1 Exhibit 1 SCOMO Threatened# 2 Exhibit 2 Defts Kept Vernon on Gurney 3 Hours)(Related document(s) 20 ) (Simon, John) (Entered: 08/01/2005)
22 NOTICE of filing by Michael Taylor re 21 Suggestions in Support of Motion,, 20 MOTION for discovery to shorten time on Sunday, July 31, 2005, with certification of telephone conversation on Friday, July 29, 2005 (Simon, John) (Entered: 08/01/2005)
23 Minute Entry for proceedings held before Judge William A. Knox : TELEPHONE CONFERENCE held on 8/1/2005. (Court Reporter L. Bax) (Bax, Laura) (Entered: 08/01/2005)
24 NOTICE of hearing: Discovery Hearing set for 8/18/2005 10:00 AM in Magistrate Courtroom, Jefferson City (WAK) before William Knox. Text only entry − no document is attached.(Bax, Laura) (Entered: 08/01/2005)

08/10/2005 08/10/2005 08/18/2005 08/18/2005 08/18/2005 08/25/2005 08/25/2005 08/30/2005 08/30/2005 09/01/2005 09/07/2005 09/12/2005
09/13/2005
09/26/2005 09/26/2005

25 NOTICE of appearance by Elizabeth Unger Carlyle on behalf of Richard D Clay (Carlyle, Elizabeth) (Entered: 08/10/2005)
26 NOTICE of filing by Richard D Clay re 19 Response to order, Suggestions in Opposition to Motion for Reconsideration of Order Granting Leave to Intervene (Carlyle, Elizabeth) (Entered: 08/10/2005)
27 NOTICE of telephone Status Conference set for 9/7/2005 10:45 AM in Magistrate Courtroom, Jefferson City (WAK) before William Knox. Court will initiate the call. Conflicts and questions should be directed to Jackie at 573−636−4015. TEXT ENTRY ONLY − no document is attached.(Price, Jackie) (Entered: 08/18/2005)
28 Minute Entry for proceedings held before Judge William A. Knox : DISCOVERY HEARING held on 8/18/2005. (Court Reporter L. Bax) (Bax, Laura) (Entered: 08/18/2005)
29 EXHIBIT INDEX from hearing by Michael Taylor. (Bax, Laura) (Entered: 08/18/2005)
NOTICE OF DOCKET MODIFICATION. A modification has been made to document #19 filed on 7/29/05 as Response to Order. A document has been deleted from the entry. The court has copied and refiled this document as a motion. This is a text entry only − no document is attached. (Price, Jackie) (Entered: 08/25/2005)
31 ORDER denying 20 motion for discovery, denying 30 motion for reconsideration. Signed by Judge William A. Knox on 8/25/2005. (Bode, Kay) (Entered: 08/25/2005)
32 MOTION for protective order as a result of Objections to Interrogatories filed byMichael Pritchett on behalf of Larry Crawford, James D Purkett Suggestions in opposition/response due by 9/14/2005 unless otherwise directed by the court (Pritchett, Michael) (Entered: 08/30/2005)
33 CERTIFICATE OF SERVICE by Larry Crawford, James D Purkett filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett.(Pritchett, Michael) (Entered: 08/30/2005)
34 NOTICE of TELEPHONE CONFERENCE set for 9/7/2005 10:30 AM in Magistrate Courtroom, Jefferson City (WAK) before William Knox. Court will initiate the call. TEXT ENTRY ONLY − no document is attached.(Price, Jackie) (Entered: 09/01/2005)
35 Minute Entry for proceedings held before Judge William A. Knox : TELEPHONE CONFERENCE held on 9/7/2005. (Court Reporter /CRD J Russel.) (Russel, Jeri) (Entered: 09/07/2005)
36 AMENDED COMPLAINT by both plaintiffs against all defendants filed by John William Simon on behalf of Michael Taylor. (Attachments: # 1 Exhibit 19 Crawford Partial Responses to Interrogatories# 2 Exhibit 20 Dr Groner Curriculum Vitae# 3 Exhibit 21 Johnston Evidentiary Hearing# 4 Exhibit 22 Medical Ethics Rule on Executions)(Simon, John) (Entered: 09/12/2005)
37 SUGGESTIONS in opposition re 32 MOTION for protective order as a result of Objections to Interrogatories in which the defendants seek to keep board certified executioner surgeon's name from even the counsel for the plaintiffs filed by John William Simon on behalf of Plaintiff Michael Taylor. Reply suggestions due by 9/28/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit 23 Supplemental Interrogatories)(Related document(s) 32 ) (Simon, John) (Entered: 09/13/2005)
38 MOTION to dismiss case filed byMichael Pritchett on behalf of Larry Crawford, James D Purkett Suggestions in opposition/response due by 10/11/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit # 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Pritchett, Michael) (Entered: 09/26/2005)
39 SUGGESTIONS in support re 32 MOTION for protective order as a result of Objections to Interrogatories Defendants' Reply to Plaintiffs' Response (Doc. No. 37) filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett. (Related document(s) 32 ) (Pritchett, Michael) (Entered: 09/26/2005)

09/28/2005 09/30/2005 10/05/2005 10/12/2005
10/12/2005 10/24/2005
10/31/2005 11/16/2005 11/18/2005 12/12/2005 12/14/2005 12/14/2005
12/22/2005 12/28/2005

40 MOTION for extension of time To Rile Responses to Pltf's Supplemental Interrogatories to Defendant Crawford filed byMichael Pritchett on behalf of Larry Crawford Suggestions in opposition/response due by 10/13/2005 unless otherwise directed by the court (Pritchett, Michael) (Entered: 09/28/2005)
41 ORDER granting 40 motion for extension of time until 10/5/2005 to file response to supplemental interrogatories to Larry Crawford. Signed by Judge William A. Knox on 9/30/2005. (Bode, Kay) (Entered: 09/30/2005)
42 CERTIFICATE OF SERVICE by Larry Crawford, James D Purkett of mailing Defendant Crawford's Answers to Plaintiff's Supplemental Interrogatories filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett.(Pritchett, Michael) (Entered: 10/05/2005)
43 SUGGESTIONS in opposition re 38 MOTION to dismiss case filed by Elizabeth Unger Carlyle on behalf of Plaintiff Michael Taylor. Reply suggestions due by 10/27/2005 unless otherwise directed by the court (Attachments: # 1 motion for overlength pleading# 2 Declaration concerning ECF failure# 3 Exhibit−Unpublished opinions cited in pleading)(Related document(s) 38 ) (Carlyle, Elizabeth) (Entered: 10/12/2005)
44 MOTION for leave to file excess pages filed byElizabeth Unger Carlyle on behalf of Richard D Clay Suggestions in opposition/response due by 10/27/2005 unless otherwise directed by the court (Russel, Jeri) originally attached incorrectly to document 43 (Entered: 10/13/2005)
45 REPLY SUGGESTIONS re 38 MOTION to dismiss case "DEFENDANTS' REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS" filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett. (Related document(s) 38 ) (Pritchett, Michael) Modified on 10/25/2005 to correct event name(Russel, Jeri). (Entered: 10/24/2005)
46 ORDER granting 32 motion for protective order. Signed by Judge William A. Knox on 10/31/2005. (Bode, Kay) (Entered: 10/31/2005)
47 ORDER granting 44 motion for leave to file excess pages. Signed by Judge William A. Knox on 11/16/2005. (Bode, Kay) (Entered: 11/16/2005)
48 CERTIFICATE OF SERVICE by Larry Crawford of Mailing Supplemental Answers to Plaintiff's First Interrogatories and Responses to Supplemental Interrogatories, filed by Michael Pritchett on behalf of Defendant Larry Crawford.(Pritchett, Michael) (Entered: 11/18/2005)
49 REPORT AND RECOMMENDATION that claims filed by Michael Taylor and Richard Clay be dismissed under Rule 41(b) for failure to comply with court orders. Objections to RRdue by 12/22/2005. Signed by Judge William A. Knox on 12/12/2005. (Bode, Kay) (Entered: 12/12/2005)
RECEIPT number 234625 in the amount of $26.80 issued to John William Simon. (Carr, Lori) (Entered: 12/14/2005)
50 MOTION to vacate 49 REPORT AND RECOMMENDATIONS re 36 Amended Complaint, filed by Michael Taylor, or, in the Alternative, Written Exceptions to It filed byJohn William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 12/29/2005 unless otherwise directed by the court (Related document(s) 49 ) (Simon, John) (Entered: 12/14/2005)
51 Consent MOTION for extension of time to file objections to report and recommendations filed byElizabeth Unger Carlyle on behalf of Richard D Clay Suggestions in opposition/response due by 1/6/2006 unless otherwise directed by the court (Carlyle, Elizabeth) (Entered: 12/22/2005)
52 ORDER vacating, in part, 49 Report and Recommendation; granting 50 Motion to vacate; directing monthly payments be made from prison account of Michael Anthony Taylor. Signed by Judge William A. Knox on 12/28/2005. (Bode, Kay) Modified on 12/28/2005 to correct of docket text. (Bode, Kay) (Entered: 12/28/2005)

12/28/2005 12/28/2005 01/03/2006 01/11/2006 01/11/2006 01/12/2006 01/17/2006
01/17/2006
01/18/2006
01/18/2006
01/18/2006 01/19/2006
01/19/2006 01/20/2006 01/20/2006 01/20/2006 01/23/2006

53 ORDER granting 51 motion for extension of time until 1/10/2006 to file exceptions to 12/12/2005 report and recommendation. Signed by Judge William A. Knox on 12/28/2005. (Bode, Kay) (Entered: 12/28/2005)
54 ORDER denying 38 defendants' motion to dismiss case. Signed by Judge Scott O. Wright on 12−28−05. (Morse, Judy) (Entered: 12/28/2005)
55 NOTICE of filing by Larry Crawford, James D Purkett "Defendants' Notice of Setting of Execution" (Pritchett, Michael) (Entered: 01/03/2006)
56 NOTICE of telephone conference set for 1/17/2006 at 9:15 AM before William Knox. Court will initiate the conference call. TEXT ENTRY ONLY − no document is attached. (Price, Jackie) (Entered: 01/11/2006)
57 **AMENDED** NOTICE of telephone conference − conference RESET for **1/18/2006 at 9:45 AM** before William Knox. NO DOCUMENT ATTACHED (Price, Jackie) (Entered: 01/11/2006)
58 ANSWER to Amended Complaint filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett.(Pritchett, Michael) (Entered: 01/12/2006)
59 Second MOTION for extension of time to file objections to report &recommendations filed byElizabeth Unger Carlyle on behalf of Richard D Clay Suggestions in opposition/response due by 2/1/2006 unless otherwise directed by the court (Carlyle, Elizabeth) Additional attachment(s) added on 1/18/2006 (James, Carrie). (Entered: 01/17/2006)
Document #60 has been deleted and attached as a proposed OBJECTION to 49 Report and Recommendations to document #59. Originally filed by Elizabeth Unger Carlyle on behalf of Intervenor Plaintiff Richard D Clay. (Attachments: # )(Related document(s) 49 ) (Carlyle, Elizabeth) Modified on 1/18/2006 (James, Carrie). (Entered: 01/17/2006)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 1/17/06 as Objections to RA document has been deleted from the entry and attached to document 59. This is a text entry only − no document is attached. (James, Carrie) (Entered: 01/18/2006)
60 MOTION to stay (closest ECF category), actually Application for Court Order, filed byJohn William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 2/2/2006 unless otherwise directed by the court (Simon, John) (Entered: 01/18/2006)
61 Minute Entry for proceedings held before Judge William A. Knox : TELEPHONE CONFERENCE held on 1/18/2006. (Court Reporter Price.) (Price, Jackie) Additional attachment(s) added on 1/19/2006 (Price, Jackie). (Entered: 01/19/2006)
62 ORDER granting 60 plaintiffs' motion for court order, plaintiff shall not be executed until further order of this court, hearing on merits set for 2/21/06, possibly going into 2/22/06. Signed by Judge Scott O. Wright on 1−19−2006. (Morse, Judy) (Entered: 01/19/2006)
63 NOTICE OF APPEAL by Larry Crawford, James D Purkett. Filing fee $ 255, receipt number 1175618. (Pritchett, Michael) (Entered: 01/19/2006)
64 TRANSMISSION of Notice of Appeal and docket sheet to US Court of Appeals re 63 Notice of Appeal (Bax, Laura) (Entered: 01/20/2006)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Fri Jan 20 09:42:47 CST 2006 (Bax, Laura) (Entered: 01/20/2006)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Fri Jan 20 09:43:15 CST 2006 (Bax, Laura) (Entered: 01/20/2006)
65 TRANSCRIPT of Status Conference held on 1/18/06 before Judge William Knox. Court Reporter: Price. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Price, Jackie) (Entered: 01/23/2006)

01/23/2006 01/24/2006 01/24/2006 01/27/2006 01/27/2006 01/27/2006 01/30/2006 01/30/2006 01/30/2006 01/30/2006
01/30/2006 01/30/2006
01/30/2006 01/31/2006 01/31/2006

85 TRANSCRIPT of Telephone Status Hearing held on 9/7/2005 before Judge William A Knox. Court Reporter: J Russel. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Russel, Jeri) (Entered: 02/16/2006)
USCA Case Number from 8th Circuit is 06−1278 for 63 Notice of Appeal filed by James D Purkett,, Larry Crawford, THIS IS A TEXT ENTRY ONLY − NO DOCUMENT IS ATTACHED. (Bax, Laura) (Entered: 01/24/2006)
66 CERTIFICATE OF SERVICE by Larry Crawford of Mailing "Defendant Crawford's Supplemental Answer to Plaintiffs' Interrogatory No. 6n" filed by Michael Pritchett on behalf of Defendant Larry Crawford.(Pritchett, Michael) (Entered: 01/24/2006)
67 SUGGESTIONS in support re 59 Second MOTION for extension of time to file objections to report &recommendations (Supplement) filed by Elizabeth Unger Carlyle on behalf of Intervenor Plaintiff Richard D Clay. (Attachments: # 1)(Related document(s) 59 ) (Carlyle, Elizabeth) (Entered: 01/27/2006)
68 MOTION to intervene filed byMark G. Arnold on behalf of Reginald Clemons Suggestions in opposition/response due by 2/13/2006 unless otherwise directed by the court (Arnold, Mark) (Entered: 01/27/2006)
69 SUGGESTIONS in support re 68 MOTION to intervene filed by Mark G. Arnold on behalf of Intervenor Plaintiff Reginald Clemons. (Related document(s) 68 ) (Arnold, Mark) (Entered: 01/27/2006)
70 ORDER transferring case to District Judge Fernando J. Gaitan, Jr., Signed by Chief Judge Dean Whipple on 1/30/06. (Diefenbach, Tracy) (Entered: 01/30/2006)
71 MOTION to dismiss party Richard D. Clay filed byElizabeth Unger Carlyle on behalf of Richard D Clay Suggestions in opposition/response due by 2/14/2006 unless otherwise directed by the court (Carlyle, Elizabeth) (Entered: 01/30/2006)
Proceedings held before Judge Fernando J. Gaitan Jr.: TELEPHONE CONFERENCE regarding status of case held on 1/30/2006 at approx. 10:10 a.m. (Text Only Entry − No Document Attached.) (Court Reporter Donna Turner.) (Enss, Rhonda) (Entered: 01/30/2006)
72 MOTION to withdraw document 68 MOTION to intervene, 69 Suggestions in Support of Motion to Intervene filed byMark G. Arnold on behalf of Reginald Clemons Suggestions in opposition/response due by 2/14/2006 unless otherwise directed by the court (Related document(s) 68 , 69 ) (Arnold, Mark) (Entered: 01/30/2006)
73 SUGGESTIONS in support re 72 MOTION to withdraw document 68 MOTION to intervene, 69 Suggestions in Support of Motion to Intervene filed by Mark G. Arnold on behalf of Intervenor Plaintiff Reginald Clemons. (Related document(s) 72 ) (Arnold, Mark) (Entered: 01/30/2006)
Proceedings held before Judge Fernando J. Gaitan Jr.: statusTELEPHONE CONFERENCE held on 1/30/2006 at approximately 2:30 p.m. Court granted Doc. #71 motion to dismiss − Intervenor Plaintiff Richard D Clay terminated. (Text Only Entry − No Document Attached.) (Court Reporter Donna Turner.) (Enss, Rhonda) (Entered: 01/31/2006)
74 Minute Entry for proceedings held before Judge Fernando J. Gaitan Jr.: EVIDENTIARY HEARING (conducted via telephone) held on 1/30/2006 − continued to 1/31/06. (Court Reporter Donna Turner.) (Enss, Rhonda) (Entered: 01/31/2006)
75 Minute Entry for proceedings held before Judge Fernando J. Gaitan Jr.: EVIDENTIARY HEARING (conducted via telephone) held on 1/31/2006. (Court Reporter Donna Turner.) (Enss, Rhonda) (Entered: 01/31/2006)
76 ORDER that the Court finds that neither the chemicals used by the State of Missouri for lethal injection nor the procedure employed to administer these injections constitutes cruel and unusual punishment. While the plaintiff suggests a different approach to lethal injection, he does not prove that the current method used by Missouri violates the Eighth Amendment to the Constitution. Further the Court is not

01/31/2006 01/31/2006 01/31/2006 01/31/2006 01/31/2006 02/01/2006 02/01/2006 02/01/2006 02/01/2006 02/09/2006 02/14/2006 02/16/2006
02/16/2006
03/10/2006 04/10/2006 04/11/2006

persuaded that the use of the femoral vein for the administration of the lethal injection violates applicable standards of the Eighth Amendment. The Court also does not find that Missouri physicians who are involved in administering the lethal injections are violating their ethical obligations nor that the procedure is violative of the Thirteenth Amendment. Motions terminated: granting # 72 Reginald Clemons' MOTION to withdraw document. Signed by Judge Fernando J. Gaitan Jr. on 1/31/06. (Enss, Rhonda) (Entered: 01/31/2006)
77 CLERK'S JUDGMENT (Enss, Rhonda). (Entered: 01/31/2006)
78 MOTION for leave to appeal in forma pauperis filed byJohn William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 2/15/2006 unless otherwise directed by the court (Simon, John) (Entered: 01/31/2006)
79 SUGGESTIONS in support re 78 MOTION for leave to appeal in forma pauperis filed by John William Simon on behalf of Plaintiff Michael Taylor. (Related document(s) 78 ) (Simon, John) (Entered: 01/31/2006)
80 NOTICE OF APPEAL by Michael Taylor. Filing fee $ 255, receipt number IFP. (Simon, John) (Entered: 01/31/2006)
83 EXHIBIT INDEX by Larry Crawford, James D Purkett, John Does. (Carr, Lori) (Entered: 02/01/2006)
81 ORDER denying # 78 petitioner's motion for leave to appeal in forma pauperis. Signed by Judge Fernando J. Gaitan Jr. on 2/1/06. (Enss, Rhonda) (Entered: 02/01/2006)
82 TRANSMISSION of Notice of Appeal and docket sheet to US Court of Appeals re 80 Notice of Appeal (James, Carrie) (Entered: 02/01/2006)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Wed Feb 1 10:50:44 CST 2006 (James, Carrie) (Entered: 02/01/2006)
USCA Case Number from 8th Circuit is 06−1397 for 80 Notice of Appeal filed by Michael Taylor, THIS IS A TEXT ENTRY ONLY − NO DOCUMENT IS ATTACHED. (Bax, Laura) (Entered: 02/01/2006)
RECEIPT number 238137 in the amount of $39.70 issued to Michael Taylor as payment on the d/c filing fee; balance due is $183.50. (Bax, Laura) (Entered: 02/09/2006)
84 ORDER of US COURT OF APPEALS of 1/29/06 (James, Carrie) (Entered: 02/14/2006)
86 TRANSCRIPT of Status Conference held on 8/1/05 before Judge William A Knox. Court Reporter: L Bax. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Russel, Jeri) (Entered: 02/16/2006)
87 TRANSCRIPT of Status Conference held on 8/18/05 before Judge William A Knox. Court Reporter: L Bax. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Russel, Jeri) (Entered: 02/16/2006)
RECEIPT number 238227 in the amount of $16.70 issued to plaintiff. Bal due on d/c fee: $166.80. (James, Carrie) (Entered: 03/10/2006)
RECEIPT number 237029 in the amount of $26.70 issued to Michael Taylor as payment on the d/c filing fee; balance due is $140.10. (Bax, Laura) (Entered: 04/10/2006)
88 TRANSCRIPT of 10:00 A.M. Teleconference held on January 30, 2006 before Judge Fernando J. Gaitan, Jr. Court Reporter: Donna M. Turner. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Jones, Robin) (Entered: 04/11/2006)

04/11/2006 04/11/2006 04/11/2006 04/27/2006 04/28/2006 05/01/2006 05/01/2006 05/01/2006 05/01/2006 05/01/2006 05/02/2006 05/02/2006
05/02/2006

89 TRANSCRIPT of 2:30 P.M. Teleconference held on January 30, 2006 before Judge Fernando J. Gaitan, Jr. Court Reporter: Donna M. Turner. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Jones, Robin) (Entered: 04/11/2006)
90 TRANSCRIPT of 4:00 P.M. Teleconference (Testimony of Dr. Dershwitz &Dr. Groner) held on January 30, 2006 before Judge Fernando J. Gaitan, Jr. Court Reporter: Donna M. Turner. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Jones, Robin) (Entered: 04/11/2006)
91 TRANSCRIPT of Teleconference (Testimony of Dr. Mark Heath and Terry Moore) held on January 31, 2006 before Judge Fernando J. Gaitan, Jr. Court Reporter: Donna M. Turner. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Jones, Robin) (Entered: 04/11/2006)
194 ORDER of US COURT OF APPEALS − The case is remanded with instructions that the hearing be reconvened before Judge Gaitan. (Jones, Robin) (Entered: 06/20/2006)
92 ORDER − status Telephone Conference set for 5/1/2006 at 10:00 AM before Fernando Gaitan. Signed by Judge Fernando J. Gaitan Jr. on 4/28/06. (Enss, Rhonda) (Entered: 04/28/2006)
93 NOTICE of filing by Michael Taylor of Applications for Admission Pro Haec Vice of Jenner &Block Counsel (Attachments: # 1 Supplement Verilli Application# 2 Supplement Hellman App# 3 Supplement Berger App)(Simon, John) (Entered: 05/01/2006)
94 Motion to allow Matthew Hellman to appear pro hac vice (Pro Hac fee $50 receipt number 1255882) filed by John William Simon on behalf of Michael Taylor (Simon, John) (Entered: 05/01/2006)
95 Motion to allow Eric Berger to appear pro hac vice (Pro Hac fee $50 receipt number 1255891) filed by John William Simon on behalf of Michael Taylor (Simon, John) (Entered: 05/01/2006)
96 Motion to allow Donald Verilli to appear pro hac vice (Pro Hac fee $50 receipt number 1255896) filed by John William Simon on behalf of Michael Taylor (Simon, John) (Entered: 05/01/2006)
Proceedings held before Judge Fernando J. Gaitan Jr.: StatusTELEPHONE CONFERENCE held on 5/1/2006. (Text Only Entry − No Document Attached.) (Court Reporter Katie Wirt.) (Enss, Rhonda) (Entered: 05/01/2006)
***Remark − 4 volumes of transcripts returned from USCA (Bax, Laura) (Entered: 05/02/2006)
ORDER granting 94 motion to appear pro hac vice approved by Clerk of Court. Attorney Eric Berger for Michael Taylor, Matthew S Hellman for Michael Taylor, Donald B Verrilli for Michael Taylor allowed to appear pro hac vice. This is a text only entry and will serve as authorization for the pro hac participation by the attorney. No document is attached. , granting 95 motion to appear pro hac vice approved by Clerk of Court. Attorney Eric Berger for Michael Taylor, Matthew S Hellman for Michael Taylor, Donald B Verrilli for Michael Taylor allowed to appear pro hac vice. This is a text only entry and will serve as authorization for the pro hac participation by the attorney. No document is attached. , granting 96 motion to appear pro hac vice approved by Clerk of Court. Attorney Eric Berger for Michael Taylor, Matthew S Hellman for Michael Taylor, Donald B Verrilli for Michael Taylor allowed to appear pro hac vice. This is a text only entry and will serve as authorization for the pro hac participation by the attorney. No document is attached. (Russel, Jeri) (Entered: 05/02/2006)
97 ORDER that parties shall be prepared to discuss with the Court during the 1:30 p.m. conference scheduled for May 2, 2006, a timetable to complete the discovery which the Court has allowed. The parties should note that all discovery is subject to the time

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limitations imposed by the Eighth Circuit and must be completed within thirty days from the date of the Eighth Circuit's opinion. Signed by Judge Fernando J. Gaitan Jr. on 5/2/06. (Enss, Rhonda) (Entered: 05/02/2006)
Proceedings held before Judge Fernando J. Gaitan Jr.: TELEPHONE CONFERENCE held on 5/2/2006. (Text Only Entry − No Document Attached.) (Court Reporter Katie Wirt.) (Enss, Rhonda) (Entered: 05/02/2006)
98 MOTION for reconsideration re 97 Order, filed by John William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 5/17/2006 unless otherwise directed by the court (Related document(s) 97 ) (Simon, John) (Entered: 05/02/2006)
99 SUGGESTIONS in opposition re 98 MOTION for reconsideration re 97 Order, filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett. Reply suggestions due by 5/18/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit # 2 # 3 # 4 Exhibit # 5 # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9)(Related document(s) 98 ) (Pritchett, Michael) (Entered: 05/03/2006)
100 REPLY SUGGESTIONS to motion re 98 MOTION for reconsideration re 97 Order, filed by John William Simon on behalf of Plaintiff Michael Taylor. (Related document(s) 98 ) (Simon, John) (Entered: 05/04/2006)
101 CERTIFICATE OF SERVICE by Michael Taylor of Interrogatories Served 5−4−2006 filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/04/2006)
102 CERTIFICATE OF SERVICE by Michael Taylor of Request for Admissions Served 5−4−2006 filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/04/2006)
103 Motion to allow Ginger Anders to appear pro hac vice (Pro Hac fee $50 receipt number 1259459) filed by John William Simon on behalf of Michael Taylor (Simon, John) (Entered: 05/04/2006)
ORDER granting 103 motion to appear pro hac vice approved by Clerk of Court. Attorney Ginger Anders for Michael Taylor allowed to appear pro hac vice. This is a text only entry and will serve as authorization for the pro hac participation by the attorney. No document is attached. Signed by Judge Unassigned on 5/5/06. (James, Carrie) Modified on 5/5/2006 (James, Carrie). (Entered: 05/05/2006)
104 ORDER denying 98 plaintiff's motion for reconsideration. Signed by Judge Fernando J. Gaitan Jr. on 5/5/06. (Enss, Rhonda) (Entered: 05/05/2006)
105 CERTIFICATE OF SERVICE by Michael Taylor relating to First Request for Production of Documents After Remand filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/05/2006)
106 ORDER − Defendants will provide responses to plaintiff's interrogatories, requests for admission and document production requests by 5:00 p.m. on Friday May 12, 2006. With regard to the inspection of the execution chamber, the inspection will take place on May 15, 2006. Plaintiff's expert witness Dr. Heath will be permitted to attend the inspection. Defendants will also provide a knowledgeable individual who can identify the various pieces of equipment in the chamber and state their function. Defendants will provide a videographer who will preserve this for the record. Plaintiff will submit interrogatories to the John Doe defendants on May 17, 2006. The State will respond on May 22, 2006. Signed by Judge Fernando J. Gaitan Jr. on 5/8/06. (Rosa, Patricia) (Entered: 05/08/2006)
Proceedings held before Judge Fernando J. Gaitan Jr.: TELEPHONE CONFERENCE held on 5/8/2006. (Text Only Entry − No Document Attached.) (Court Reporter Donna Turner.) (Enss, Rhonda) Modified on 5/9/2006 to reflect correct date of 5/8/06 that conference was held (Enss, Rhonda). (Entered: 05/09/2006)
RECEIPT number 243117 in the amount of $31.70 issued to Michael Taylor, bal due on d/c fee: $108.40. (James, Carrie) (Entered: 05/09/2006)

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107 ORDER − hearing to be held on 6/12/2006 at 9:00 AM in Courtroom 7C, Kansas City (FJG). Parties shall submit to the Court by 6/2/06 pre−trial briefs of ten pages or less and the parties' briefs shall identify what issues they will address at the hearing, identify what witnesses will be testifying at the hearing and describe how each witnesses' testimony relates to the issues raised. Signed by Judge Fernando J. Gaitan Jr. on 5/11/06. (Enss, Rhonda) (Entered: 05/11/2006)
108 TRANSCRIPT of Teleconference held on May 1, 2006 before Judge Fernando J. Gaitan, Jr. Court Reporter: Kathleen M. Wirt. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Jones, Robin) (Entered: 05/12/2006)
109 TRANSCRIPT of Teleconference held on May 2, 2006 before Judge Fernando J. Gaitan, Jr. Court Reporter: Kathleen M. Wirt. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Jones, Robin) (Entered: 05/12/2006)
110 CERTIFICATE OF SERVICE by Larry Crawford, James D Purkett filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett.(Pritchett, Michael) (Entered: 05/12/2006)
111 CERTIFICATE OF SERVICE by Michael Taylor of Post−Remand Interrogatories to John Doe I filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/17/2006)
112 CERTIFICATE OF SERVICE by Michael Taylor of Post−Remand Interogatories to John Doe II filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/17/2006)
113 CERTIFICATE OF SERVICE by Michael Taylor of Post−Remand Interrogatories to John Doe III filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/17/2006)
114 CERTIFICATE OF SERVICE by Michael Taylor of Post−Remand Interrogatories to John Doe IV filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/17/2006)
115 CERTIFICATE OF SERVICE by Michael Taylor of Post−Remand Interrogatories to John Doe V filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/17/2006)
119 MOTION for discovery and MOTION for reconsideration re 116 Order filed by John William Simon on behalf of Michael Taylor. Suggestions in opposition/response due by 6/1/2006 unless otherwise directed by the court. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Related document(s) 116 ) (Jones, Robin) (Entered: 05/19/2006)
120 SUGGESTIONS in opposition re 119 MOTION for discovery and MOTION for reconsideration re 116 Order filed by Michael Pritchett on behalf of Defendants Larry Crawford and James D Purkett. Reply suggestions due by 6/1/2006 unless otherwise directed by the court. (Related document(s) 119 ) (Jones, Robin) (Entered: 05/19/2006)
116 ORDER denying plaintiff's request for additional discovery and for a telephone conference. Signed by Judge Fernando J. Gaitan Jr. on 5/18/06. (Enss, Rhonda) (Entered: 05/18/2006)
117 MOTION for reconsideration re 116 Order Denying Follow−Up Discovery in Light of Misstatements of Amounts of Sodium Pentothal Actually Used by John Does I &II filed by John William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 6/2/2006 unless otherwise directed by the court (Related document(s) 116 ) (Simon, John) Modified on 6/15/2006 to reflect motion denied 5/19/06 per #123 (Enss, Rhonda). (Entered: 05/18/2006)
121 SUPPLEMENTAL SUGGESTIONS in opposition re 119 MOTION for discovery and MOTION for reconsideration re 116 Order filed by Michael Pritchett on behalf of Defendants Larry Crawford and James D Purkett. (Related document(s) 119 ) (Jones, Robin) (Entered: 05/19/2006)

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118 SUGGESTIONS in opposition re 117 MOTION for reconsideration re 116 Order Denying Follow−Up Discovery in Light of Misstatements of Amounts of Sodium Pentothal Actually Used by John Does I &II filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett. Reply suggestions due by 6/5/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit A)(Related document(s) 117 ) (Pritchett, Michael) (Entered: 05/19/2006)
122 REPLY SUGGESTIONS to motion re 117 MOTION for reconsideration re 116 Order Denying Follow−Up Discovery in Light of Misstatements of Amounts of Sodium Pentothal Actually Used by John Does I &II , i.e., reply in support of motion for reconsideration, filed by John William Simon on behalf of Plaintiff Michael Taylor. (Related document(s) 117 ) (Simon, John) (Entered: 05/19/2006)
123 ORDER denying 119 motion for reconsideration. The Court finds there is no reason to depart from the discovery process which is currently in place. Therefore, the Court hereby denies plaintiff's Motion for Reconsideration of the Court's May 18, 2006 Order. Signed by Judge Fernando J. Gaitan Jr. on May 19, 2006. (Jones, Robin) (Entered: 05/19/2006)
141 MOTION for order to Depose Operations Officer filed by John William Simon on behalf of Michael Taylor. Suggestions in opposition/response due by 6/5/2006 unless otherwise directed by the court. (Attachments: # 1 Exhibit A)(Jones, Robin) Modified on 5/24/2006 to reflect motion was ruled by Document 125 (Jones, Robin). (Entered: 05/24/2006)
142 SUGGESTIONS in opposition re 141 MOTION for order to Depose Operations Officer filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett. (Related document(s) 141 ) (Jones, Robin) (Entered: 05/24/2006)
124 NOTICE to take deposition of Larry Crawford filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/22/2006)
125 ORDER denying plaintiff's request to depose the Operations Officer. Signed by Judge Fernando J. Gaitan Jr. on 5/22/06. (Carr, Lori) (Entered: 05/22/2006)
126 CERTIFICATE OF SERVICE by Michael Taylor re Supplemental Interrogatories to John Doe I filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/22/2006)
127 CERTIFICATE OF SERVICE by Michael Taylor re Supplemental Interrogatories to John Doe II filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/22/2006)
128 CERTIFICATE OF SERVICE by Michael Taylor re Supplemental Interrogatories to John Doe III filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/22/2006)
129 CERTIFICATE OF SERVICE by Michael Taylor re Supplemental Interrogatories to John Doe IV filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/22/2006)
130 CERTIFICATE OF SERVICE by Michael Taylor re Supplemental Interrogatories to John Doe V filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/22/2006)
131 CERTIFICATE OF SERVICE by Larry Crawford, James D Purkett of Sending on 5/22/06 John Doe I−V's Answers to Plaintiff's First Interrogatories filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett.(Pritchett, Michael) (Entered: 05/23/2006)
DESIGNATION of Defendants' Expert Witnesses by Larry Crawford, James D Purkett. (Pritchett, Michael) Modified on 5/24/2006 Document deleted because #133 is a duplicate(Russel, Jeri). (Entered: 05/23/2006)
133 DESIGNATION of Defendants' Expert Witnesses (#132 filed in wrong category) by Larry Crawford, James D Purkett, Larry Crawford, James D Purkett filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett, Larry Crawford, James D Purkett.(Pritchett, Michael) (Entered: 05/23/2006)

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134 MOTION to take deposition from John Does I−V filed by John William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 6/7/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit Exhibit A−1# 2 Exhibit Exhibit A−2# 3 Exhibit Exhibit A−3# 4 Exhibit Exhibit A−4# 5 Exhibit Exhibit B# 6 Exhibit Exhibit C# 7 Exhibit Exhibit D# 8 Exhibit Exhibit E# 9 Exhibit Exhibit F)(Simon, John) Modified on 6/15/2006 to reflect motion granted and denied in part per #159 filed 5/26/06 &#161 filed 5/30/06 (Enss, Rhonda). (Entered: 05/23/2006)
135 CERTIFICATE OF SERVICE by Michael Taylor of Report of Expert Mark J.S. Heath filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/23/2006)
136 CERTIFICATE OF SERVICE by Michael Taylor of Report of Expert Thomas K. Henthorn filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/23/2006)
137 CERTIFICATE OF SERVICE by Michael Taylor of Report of Expert Stephen Paul Johnson filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/23/2006)
138 MOTION to expedite filed by John William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 6/8/2006 unless otherwise directed by the court (Attachments: # 1 Affidavit Declaration of Matthew S. Hellman)(Simon, John) Modified on 6/15/2006 to reflect motion moot (Enss, Rhonda). (Entered: 05/24/2006)
139 SUGGESTIONS in opposition re 134 MOTION to take deposition from John Does I−V filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett. Reply suggestions due by 6/8/2006 unless otherwise directed by the court (Related document(s) 134 ) (Pritchett, Michael) (Entered: 05/24/2006)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on May 23, 2006 as Designation of Expert Witness. A document has been deleted from the entry because a duplicate document was filed as document 133 . This is a text entry only − no document is attached. (Russel, Jeri) (Entered: 05/24/2006)
140 REPLY SUGGESTIONS to motion re 134 MOTION to take deposition from John Does I−V , i.e., Reply in Support of Foregoing Motion, filed by John William Simon on behalf of Plaintiff Michael Taylor. (Related document(s) 134 ) (Simon, John) (Entered: 05/24/2006)
143 SUGGESTIONS in opposition re 163 MOTION for order to take deposition Suggestion In Opposition to (Letter) Motion to Allow Deposition (Hawke, Stephen) Modified on 5/31/2006 to correct event title and add document link (Jones, Robin). (Entered: 05/24/2006)
144 CERTIFICATE OF SERVICE by Larry Crawford, James D Purkett Defendants JOhn Doe I, II, III, IV &V Certificate of Service of Answerst to Plaintiff's Supplemental Interrogtaories filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett.(Pritchett, Michael) (Entered: 05/24/2006)
145 CERTIFICATE OF SERVICE by Michael Taylor of Transcript of Deposition of Larry Crawford, with Transcript Itself at Beginning of PDF File, filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 05/24/2006)
163 MOTION for order to take deposition of Dr. Mark Dershwitz filed by John William Simon on behalf of Michael Taylor. (Related document(s) 143 , 146 ) (Jones, Robin) (Entered: 05/31/2006)
146 REPLY SUGGESTIONS to motion re 163 MOTION for order to take deposition filed by John William Simon on behalf of Plaintiff Michael Taylor. (Related document(s) 163 ) (Simon, John) Modified on 5/31/2006 to correct document event link (Jones, Robin). (Entered: 05/25/2006)
147 CERTIFICATE OF SERVICE by Michael Taylor of Word Index to Crawford Deposition Transcript, with Index Appearing at Front of PDF File Containing Certificate, filed by John William Simon on behalf of Plaintiff Michael

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Taylor.(Simon, John) (Entered: 05/25/2006)
148 ORDER that John Doe No. 1 answer the interrogatories on or before 3:00 p.m. Thursday May 25, 2006. The responses shall be answered truthfully under penalty of perjury. Signed by Judge Fernando J. Gaitan Jr. on 5/25/06. (Enss, Rhonda) (Entered: 05/25/2006)
149 CERTIFICATE OF SERVICE by Michael Taylor with Heath Report &Exhibits filed by John William Simon on behalf of Plaintiff Michael Taylor. (Attachments: # 1 Exhibit B (A being in the same file as the certificate and report)# 2 Exhibit C−G)(Simon, John) (Entered: 05/25/2006)
150 CERTIFICATE OF SERVICE by Michael Taylor , with Johnson Report Itself, filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) Modified on 5/26/2006 to correct name of report (Jones, Robin). (Entered: 05/25/2006)
151 CERTIFICATE OF SERVICE by Michael Taylor , with Henthorn Report Itself and Exhibits A−F Plus Figures Thereto as Attachments, filed by John William Simon on behalf of Plaintiff Michael Taylor. (Attachments: # 1 Exhibit A# 2 Exhibit B−1# 3 Exhibit B−2# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Supplement Figures (Numbered))(Simon, John) (Entered: 05/25/2006)
152 RESPONSE to order re 148 Order filed by Stephen David Hawke on behalf of Defendants Larry Crawford, James D Purkett. (Related document(s) 148 ) (Hawke, Stephen) (Entered: 05/25/2006)
153 NOTICE of filing by Larry Crawford, James D Purkett Defendant John Doe I's Answers to Plaintiff's Supplemental Interrogatories (Pritchett, Michael) (Entered: 05/25/2006)
154 NOTICE of filing by Larry Crawford, James D Purkett Defendant John Doe II's Answers to Plaintiff's Supplemental Interrogatories (Pritchett, Michael) (Entered: 05/25/2006)
155 NOTICE of filing by Larry Crawford, James D Purkett Defendant John Doe III's Answers to Plaintiff's Supplemental Interrogatories (Pritchett, Michael) (Entered: 05/25/2006)
156 NOTICE of filing by Larry Crawford, James D Purkett Defendant John Doe IV's Answers to Plaintiff's Supplemental Interrogatories (Pritchett, Michael) (Entered: 05/25/2006)
157 NOTICE of filing by Larry Crawford, James D Purkett Defendant John Doe V's Answers to Plaintiff's Supplemental Interrogatories (Pritchett, Michael) (Entered: 05/25/2006)
158 Supplemental MOTION to take deposition from Does I−V with Declaration of Mark J.S. Heath, M.D., in Support filed by John William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 6/9/2006 unless otherwise directed by the court (Attachments: # 1 Declaration of Mark J.S. Heath, M.D.)(Simon, John) Modified on 6/15/2006 to reflect motion granted and denied part per #159 filed 5/26/06 &#161 filed 5/30/06 (Enss, Rhonda). (Entered: 05/25/2006)
159 ORDER re 134 plaintiff's MOTION to take deposition from John Does I−V and 158 plaintiff's Supplemental MOTION to take deposition from Does I−V − plaintiff shall electronically file his response to the Court's Order on or before 5:00 p.m. Friday May 26, 2006. The Court will review the questions proposed and will advise the parties by early next week whether a deposition will be allowed and if so how it will be conducted. Signed by Judge Fernando J. Gaitan Jr. on 5/26/06. (Enss, Rhonda) (Entered: 05/26/2006)
160 MOTION for reconsideration re 159 Order,, and Questions as Directed by It, filed by John William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 6/12/2006 unless otherwise directed by the court (Related document(s) 159 ) (Simon, John) (Entered: 05/26/2006)

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161 ORDER denying 160 plaintiff's motion for reconsideration. An anonymous deposition of John Doe No. 1 will take place on Monday June 5, 2006 at 1:00 p.m. in Kansas City, Missouri. John Doe No. 1 will be present at the Courthouse in Kansas City, Missouri. Each side will be permitted to have one attorney present at the deposition. The plaintiff will be given two hours to question John Doe No. 1 on the three subject areas previously discussed and covered within the list which was previously submitted to the Court by plaintiff. Counsel for the State will be given a reasonable time to question the witness, not to exceed that time allowed to plaintiff. Discovery has been extended to allow this deposition only. The deadline for the parties to submit their pre−trial briefs has been extended to Thursday June 8, 2006. Signed by Judge Fernando J. Gaitan Jr. on 5/30/06. (Enss, Rhonda) (Entered: 05/30/2006)
162 CERTIFICATE OF SERVICE by Larry Crawford, James D Purkett of Expert Report by Dr. Dershwitz filed by Stephen David Hawke on behalf of Defendants Larry Crawford, James D Purkett.(Hawke, Stephen) (Entered: 05/30/2006)
164 ORDER denying 163 plaintiff's motion to depose Dr. Mark Dershwitz. Signed by Judge Fernando J. Gaitan Jr. on 5/31/06. (Enss, Rhonda) (Entered: 05/31/2006)
165 Supplemental MOTION to take deposition from Dershwitz , i.e., Supplement to Motion to Take Deposition of Mark Dershwitz As Plaintiff Is Entitled to Do Under Mandatory Language of Federal Rules, With Exhibit A, filed by John William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 6/15/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit Expert Report)(Simon, John) (Entered: 05/31/2006)
166 NOTICE of filing by Larry Crawford Expert report of Dr. Mark Dershwitz (Hassell, Andrew) (Entered: 05/31/2006)
167 MOTION for reconsideration re 164 Order on Motion for Miscellaneous Relief , i.e., to Motion to Reconsider Denial of Right to Take Deposition of Expert as Guaranteed by the Federal Rules of Civil Procedure and Other Law, filed by John William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 6/16/2006 unless otherwise directed by the court (Related document(s) 164 ) (Simon, John) (Entered: 06/01/2006)
168 MOTION for reconsideration re 161 Order on Motion for Reconsideration,,, i.e., Motion to Reconsider the Specific Outstanding Limits on Deposition of John Doe I, filed by John William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 6/16/2006 unless otherwise directed by the court (Related document(s) 161 ) (Simon, John) (Entered: 06/01/2006)
169 ORDER re 167 plaintiff's MOTION to reconsider 164 Order Denying plaintiff's motion to depose Dr. Dershwitz. Plaintiff shall submit in camera proposed questions to this Court for review no later than Friday, 6/2/06, at 10:00 a.m. Signed by Judge Fernando J. Gaitan Jr. on 6/1/06. (Enss, Rhonda) (Entered: 06/01/2006)
170 SUGGESTIONS in opposition re 167 MOTION for reconsideration re 164 Order on Motion for Miscellaneous Relief , i.e., to Motion to Reconsider Denial of Right to Take Deposition of Expert as Guaranteed by the Federal Rules of Civil Procedure and Other Law, filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett. Reply suggestions due by 6/16/2006 unless otherwise directed by the court (Related document(s) 167 ) (Pritchett, Michael) (Entered: 06/01/2006)
171 SUGGESTIONS in opposition re 168 MOTION for reconsideration re 161 Order on Motion for Reconsideration,,, i.e., Motion to Reconsider the Specific Outstanding Limits on Deposition of John Doe I, filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett. Reply suggestions due by 6/19/2006 unless otherwise directed by the court (Related document(s) 168 ) (Pritchett, Michael) (Entered: 06/02/2006)
172 ORDER granting in part and denying in part 168 plaintiff's motion for reconsideration. Signed by Judge Fernando J. Gaitan Jr. on 6/2/06. (Enss, Rhonda) (Entered: 06/02/2006)
173 REPLY SUGGESTIONS to motion re 167 MOTION for reconsideration re 164 Order on Motion for Miscellaneous Relief , i.e., to Motion to Reconsider Denial of

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Right to Take Deposition of Expert as Guaranteed by the Federal Rules of Civil Procedure and Other Law, filed by John William Simon on behalf of Plaintiff Michael Taylor. (Related document(s) 167 ) (Simon, John) (Entered: 06/02/2006)
174 ORDER conditionally denying 165 plaintiff's supplemental motion to take deposition of Dr. Dershwitz and conditionally denying 167 plaintiff's motion to reconsider order denying plaintiff's motion to depose Dr. Dershwitz. Signed by Judge Fernando J. Gaitan Jr. on 6/2/06. (Enss, Rhonda) (Entered: 06/02/2006)
175 MOTION for order Apply the 10/31/05 protective order, Doc. #46, to the 6/5/06 depo of John Doe filed by Michael Pritchett on behalf of Larry Crawford, James D Purkett Suggestions in opposition/response due by 6/19/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit)(Pritchett, Michael) (Entered: 06/02/2006)
176 NOTICE to take deposition of John Doe I filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 06/02/2006)
177 SUGGESTIONS in opposition re 175 MOTION for order Apply the 10/31/05 protective order, Doc. #46, to the 6/5/06 depo of John Doe , i.e., Plaintiff's Suggestions in Opposition to Applying Protective Order Beyond Sensitive Identifying Information, Precisely Defined, and in Particular to Extending It to the Entire Deposition as the Defendants Suggest, filed by John William Simon on behalf of Plaintiff Michael Taylor. Reply suggestions due by 6/19/2006 unless otherwise directed by the court (Related document(s) 175 ) (Simon, John) (Entered: 06/03/2006)
178 ORDER − As previously directed, the parties will submit to the Court pre−trial briefs of ten pages or less identifying what issues they will present at the hearing and what witnesses will be testifying. The briefs shall also describe how each witnesses testimony relates to the issues raised. The parties shall file their briefs on or before 10:00 a.m. on June 8, 2006. Signed by Judge Fernando J. Gaitan Jr. on 6/5/06. (Enss, Rhonda) (Entered: 06/05/2006)
179 Minute Entry for proceedings held before Judge Fernando J. Gaitan Jr.: Closed HEARING/Anonymous deposition held on 6/5/2006. Motions terminated: Court orally rules 175 plaintiff's MOTION for order to Apply the 10/31/05 protective order, Doc. #46, to the 6/5/06 depo of John Doe. (Court Reporter Donna Turner.) (Enss, Rhonda) (Entered: 06/06/2006)
180 PLAINTIFF'S EXHIBIT INDEX of June 5, 2006 Closed Hearing. (Jones, Robin) (Entered: 06/06/2006)
181 ORDER Regarding Time Limitations for Hearing. Signed by Judge Fernando J. Gaitan Jr. on 6/7/06. (Enss, Rhonda) (Entered: 06/07/2006)
182 NOTICE of filing by Larry Crawford, James D Purkett Defendants' Pre−Trial Brief (Pritchett, Michael) (Entered: 06/08/2006)
183 PRETRIAL MEMORANDUM by Michael Taylor. (Simon, John) (Entered: 06/08/2006)
184 MAIL RETURNED as undeliverable. Mail sent to Eric Berger. Reason for return is not legible. (Related document(s) 104 ) (James, Carrie) (Entered: 06/09/2006)
185 MOTION for reconsideration re 181 Order Truncating This Hearing Too, filed by John William Simon on behalf of Michael Taylor Suggestions in opposition/response due by 6/26/2006 unless otherwise directed by the court (Related document(s) 181 ) (Simon, John) (Entered: 06/09/2006)
186 ORDER denying 185 plaintiff's motion for reconsideration. Signed by Judge Fernando J. Gaitan Jr. on 6/9/06. (Enss, Rhonda) (Entered: 06/09/2006)
187 CERTIFICATE OF SERVICE by Michael Taylor of Supplemental Report of Mark Heath with Report Itself as Part of PDF File filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 06/09/2006)
188 CERTIFICATE OF SERVICE by Michael Taylor of Supplemental Report of Dr. Johnson with Report Itself in Same PDF File filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 06/09/2006)

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189 CERTIFICATE OF SERVICE by Michael Taylor of Supplemental Report of Dr. Henthorn filed by John William Simon on behalf of Plaintiff Michael Taylor.(Simon, John) (Entered: 06/09/2006)
190 Minute Entry for proceedings held before Judge Fernando J. Gaitan Jr.: DAY 1 OF BENCH TRIAL held on 6/12/2006. Court until recess on Tuesday, 6/13/2006. (Court Reporter Donna Turner.) (Jones, Robin) (Entered: 06/13/2006)
191 Minute Entry for proceedings held before Judge Fernando J. Gaitan Jr.: BENCH TRIAL completed on 6/13/2006. Matter taken under advisement. No post−trial briefs to be filed. (Court Reporter Donna Turner.) (Jones, Robin) (Entered: 06/13/2006)
192 DEFENDANTS' EXHIBIT INDEX of Bench Trial. (Jones, Robin) (Entered: 06/13/2006)
193 PLAINTIFF'S EXHIBIT INDEX of Bench Trial. (Jones, Robin) (Entered: 06/13/2006)
195 ORDER that the Court hereby AMENDS its previous order of January 31, 2006 and ORDERS the Department of Corrections for the State of Missouri to prepare a written protocol for the implementation of lethal injections which incorporates the provisions in the order. Signed by Judge Fernando J. Gaitan Jr. on June 26, 2006. (Jones, Robin) Modified on 6/26/2006 to reflect certified order mailed to US Court of Appeals and faxed to Potosi Correctional Center, Eastern Reception Diagnostic Center at Bonne Terre, Governor for the State of Missouri and Missouri Attorney General for the State of Missouri (Jones, Robin). (Entered: 06/26/2006)
196 Consent MOTION for extension of time to move for fees filed by Matthew S. Hellman on behalf of Michael Taylor Suggestions in opposition/response due by 7/24/2006 unless otherwise directed by the court (Hellman, Matthew) (Entered: 07/07/2006)
197 ORDER granting 196 plaintiff's motion for extension of time. Plaintiff shall file his motion for attorney's fees and costs no later than August 4, 2006. Signed by Judge Fernando J. Gaitan Jr. on 7/7/06. (Enss, Rhonda) (Entered: 07/07/2006)
RECEIPT number 243317 in the amount of $42.70 issued to DOC for Michael Taylor as payment on d/c fee. District fee balance due $65.70. Original fee ordered $250. (Russel, Jeri) (Entered: 07/11/2006)
198 RESPONSE to order re 195 Order,, filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Related document(s) 195 ) (Pritchett, Michael) (Entered: 07/14/2006)
199 MOTION for leave to file Opposition to State's Submission of Proposed Execution Protocol filed by Matthew S. Hellman on behalf of Michael Taylor Suggestions in opposition/response due by 8/1/2006 unless otherwise directed by the court (Hellman, Matthew) (Entered: 07/17/2006)
200 ORDER granting 199 plaintiff's motion for leave to file opposition to State's proposed protocol no later than 7/24/06 at 12:00 p.m. Signed by Judge Fernando J. Gaitan Jr. on 7/17/06. (Enss, Rhonda) (Entered: 07/17/2006)
201 NOTICE OF APPEAL by Larry Crawford, James D Purkett. Filing fee $ 455, receipt number 243354. (Pritchett, Michael) (Entered: 07/24/2006)
202 SUGGESTIONS in opposition re 199 MOTION for leave to file Opposition to State's Submission of Proposed Execution Protocol filed by Matthew S. Hellman on behalf of Plaintiff Michael Taylor. Reply suggestions due by 8/8/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit Declaration of Dr. Mark Heath# 2 Exhibit Exhibit 1 to Heath Declaration# 3 Exhibit Exhibit 2 to Heath Declaration# 4 Exhibit Exhibit 3 to Heath Declaration# 5 Exhibit Exhibit 4 to Heath Declaration# 6 Exhibit Exhibit 5 to Heath Declaration# 7 Exhibit Exhibit 6 to Heath Declaration)(Related document(s) 199 ) (Hellman, Matthew) (Entered: 07/24/2006)
203 ORDER regarding 198 , 195 , and 202 − as this case is now before the Eighth Circuit, the Court is confident that the parties will present their positions on the revised protocol to that Court. Signed by Judge Fernando J. Gaitan Jr. on 7/25/06. (Enss,

07/25/2006 07/25/2006 07/26/2006
07/26/2006 07/31/2006 07/31/2006 08/08/2006 08/14/2006
08/15/2006 08/29/2006
08/30/2006
09/01/2006 09/08/2006 09/12/2006

Rhonda) Modified on 7/25/2006 to reflect order faxed to 8th Circuit Court of Appeals (Enss, Rhonda). (Entered: 07/25/2006)
204 TRANSMISSION of Notice of Appeal and docket sheet to US Court of Appeals re 201 Notice of Appeal (Bax, Laura) (Entered: 07/25/2006)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Tue Jul 25 16:25:54 CDT 2006 (Bax, Laura) (Entered: 07/25/2006)
205 Consent MOTION for extension of time to move for fees filed by Matthew S. Hellman on behalf of Michael Taylor Suggestions in opposition/response due by 8/10/2006 unless otherwise directed by the court (Hellman, Matthew) (Entered: 07/26/2006)
206 ORDER granting 205 plaintiffs' motion for extension of time. Plaintiff shall file its motion for attorney's fees and costs no later than September 1, 2006. Signed by Judge Fernando J. Gaitan Jr. on 7/26/06. (Enss, Rhonda) (Entered: 07/26/2006)
USCA Case Number from 8th Circuit is 06−2914 for 201 Notice of Appeal filed by James D Purkett,, Larry Crawford, THIS IS A TEXT ENTRY ONLY − NO DOCUMENT IS ATTACHED. (Bax, Laura) (Entered: 07/31/2006)
207 NOTICE of appearance by C. John Pleban on behalf of Michael Taylor (Pleban, C.) (Entered: 07/31/2006)
RECEIPT number 243399 in the amount of $21.70 issued to Taylor as payment on the d/c filing fee. Bal due $44.00. Original fee ordered $250.00. (Bax, Laura) (Entered: 08/08/2006)
208 USCA JUDGMENT AND MANDATE as to 201 Notice of Appeal filed by James D Purkett,, Larry Crawford,, 80 Notice of Appeal filed by Michael Taylor, with mandate issued on 08/09/06. It is ordered and adjudged that the appeals are remanded to the district court for further proceedings. (Attachments: # 1 Opinion# 2 Attachment)(Anderson, Christy) (Entered: 08/14/2006)
209 ORDER − State shall file a reply to the plaintiff's objections to the revised protocol on or before 8/29/2006. Signed by Judge Fernando J. Gaitan Jr. on 8/15/06. (Enss, Rhonda) (Entered: 08/15/2006)
210 NOTICE of filing by Larry Crawford, James D Purkett "Defendant Correctional Officials' Reply to Plaintiff's Opposition to Defendants' Proposed Execution Protocol" (Attachments: # 1 Exhibit Dershwitz Declaration)(Pritchett, Michael) (Entered: 08/29/2006)
211 Consent MOTION for extension of time to move for attorney's fees and costs filed by Matthew S. Hellman on behalf of Michael Taylor Suggestions in opposition/response due by 9/14/2006 unless otherwise directed by the court (Hellman, Matthew) (Entered: 08/30/2006)
212 ORDER granting 211 plaintiffs' motion for extension of time. Plaintiff shall file his motion for attorney's fees and costs no later than September 29, 2006. Signed by Judge Fernando J. Gaitan Jr. on 9/1/06.(Enss, Rhonda) (Entered: 09/01/2006)
RECEIPT number 243487 in the amount of $32.30 issued to Taylor as payment on the d/c filing fee. Balance due $11.70. Original fee ordered was $250.00. (Bax, Laura) (Entered: 09/08/2006)
213 ORDER − The State shall submit a revised protocol to the Court for review and approval on or before 10/27/06. The State shall select a physician who is in good standing with their State's licensing board. The physician selected shall not have any disciplinary action taken against them by their State's licensing authority. The Motion to Withdraw and Motion for Appointment of Successor Counsel filed in the Eighth Circuit and remanded to this Court on 8/9/06 is granted and denied in part. Mark Thornhill, will continue representing plaintiff in his clemency proceedings and Jenner &Block, LLP will continue to represent plaintiff in his lethal injection litigation. As plaintiff has adequate counsel which are continuing to represent him, the Court finds it unnecessary to appoint replacement counsel. Accordingly, Mr. Simon's Motion to Withdraw is hereby GRANTED and the Motion to Appoint Replacement Counsel is

09/13/2006
09/15/2006
09/22/2006
10/06/2006 10/06/2006 10/12/2006
10/13/2006
10/16/2006
10/16/2006 10/18/2006 10/19/2006 10/19/2006 10/24/2006 06/04/2007
08/08/2007 08/17/2007

hereby DENIED. Signed by Judge Fernando J. Gaitan Jr. on 9/12/06. (Enss, Rhonda) (Entered: 09/12/2006)
214 MOTION to clarify Court Order of September 12, 2006 filed by Lynette M. Petruska on behalf of Michael Taylor Suggestions in opposition/response due by 9/28/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Petruska, Lynette) (Entered: 09/13/2006)
215 ORDER re: 214 motion to clarify − the Court hereby clarifies its Order of September 12, 2006 and withdraws that portion of the Order relating to the withdrawal of John Simon and the denial of the appointment of C. John Pleban. Signed by Judge Fernando J. Gaitan Jr. on 9/15/06. (Enss, Rhonda) (Entered: 09/15/2006)
216 Consent MOTION to continue Attorney's Fees Proceedings Pending Final Judgment filed by Matthew S. Hellman on behalf of Michael Taylor Suggestions in opposition/response due by 10/10/2006 unless otherwise directed by the court (Hellman, Matthew) (Entered: 09/22/2006)
217 RESPONSE to order re 213 Order,,,, filed by Michael Pritchett on behalf of Defendants Larry Crawford, James D Purkett. (Attachments: # 1 Exhibit Exhibit A)(Related document(s) 213 ) (Pritchett, Michael) (Entered: 10/06/2006)
RECEIPT number 243570 in the amount of $11.70 issued to DOC for Michael Taylor as payment on d/c fee. District fee balance due −0−.. (Russel, Jeri) (Entered: 10/10/2006)
218 SUGGESTIONS in opposition re 199 MOTION for leave to file Opposition to State's Submission of Proposed Execution Protocol Opposing State's 10/6/06 Response to Court's 9/12/06 Order filed by Matthew S. Hellman on behalf of Plaintiff Michael Taylor. Reply suggestions due by 10/27/2006 unless otherwise directed by the court (Related document(s) 199 ) (Hellman, Matthew) (Entered: 10/12/2006)
219 ORDER granting 216 motion to continue attorney's fees proceedings pending final judgment. Issue of attorney's fees and costs shall be stayed until 30 days after final judgment in this case. Signed by Judge Fernando J. Gaitan Jr. on 10/13/06. (Enss, Rhonda) (Entered: 10/13/2006)
220 ORDER re 217 Response to order filed by defendants. The Court DENIES the State's Motion for Reconsideration (Doc. # 217) and restates is previous determination that the protocol proposed by the State of Missouri is unconstitutional because it subjects inmates to unreasonable risk of cruel and unusual punishment. Signed by Judge Fernando J. Gaitan Jr. on 10/16/06. (Enss, Rhonda) (Entered: 10/16/2006)
221 CLERK'S JUDGMENT. (Enss, Rhonda) (Entered: 10/16/2006)
222 NOTICE OF APPEAL as to 220 Order,, 213 Order,,,,, 195 Order,,, 221 Clerk's Judgment by Larry Crawford, James D Purkett. Filing fee $ 455, receipt number 243615. (Hawke, Stephen) (Entered: 10/18/2006)
223 TRANSMISSION of Notice of Appeal and docket sheet to US Court of Appeals re 222 Notice of Appeal (James, Carrie) (Entered: 10/19/2006)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Thu Oct 19 12:00:03 CDT 2006 (James, Carrie) (Entered: 10/19/2006)
USCA Case Number from 8th Circuit is 06−3651 for 222 Notice of Appeal filed by James D Purkett,, Larry Crawford, THIS IS A TEXT ENTRY ONLY − NO DOCUMENT IS ATTACHED. (Bax, Laura) (Entered: 10/24/2006)
224 USCA Judgment and Opinion as to 222 Notice of Appeal This is a preliminary judgment and/or opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. (Attachments: # 1 Letter from USCA# 2 Judgment# 3 Opinion)(Bax, Laura) (Entered: 06/04/2007)
225 ORDER of US COURT OF APPEALS (Bax, Laura) (Entered: 08/08/2007)
226 MANDATE of US COURT OF APPEALS as to 222 Notice of Appeal filed by James D Purkett, Larry Crawford with mandate issued on 8/17/07. (Bax, Laura) (Entered: 08/20/2007)

09/13/2007 04/25/2008

227 NOTICE of Cert filed by the Supreme Court (Bax, Laura) (Entered: 09/13/2007)
WRIT OF CERTIORARI DENIED Supreme Court of the United States Case Number: 07−303. This is a Text Entry only. There is no document attached. (Bax, Laura) (Entered: 04/25/2008)

 
 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No: 06-3651

Michael Anthony Taylor,

Appellee

v.

Larry Crawford, Director, Missouri Department of Corrections and James D. Purkett, Superintendent, Eastern Reception Diagnostic & Correctional Center,

Appellants

______________________________________________________________________________

Appeal from U.S. District Court for the Western District of Missouri - Jefferson City (2:05-cv-04173-FJG)
______________________________________________________________________________

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel

is also denied.

Judge Benton did not participate in the consideration or decision of this matter.

August

07, 2007

Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit. ____________________________________
/s/ Michael E. Gans

 
 Michael E. Gans Clerk ofCourt

Uoited States Court of Appeals
For the Eight" Circuit
Thomas F. Eaglrton lI.S. Courthouse III South 10'" Strert, Room 24.329
St. Louis, Missouri 63102
January 29, 2006

VOICE (314) 244-2400 FAX (314) 244-2780 www.ca8.uscourts.gov

Mr. Stephen D. Hawke Attorney General's Office P.O. Box 899 221 W. High Street Jefferson City, Missouri 65102
Re: No. 06-1278 Michael Anthony Taylor v. Larry Crawford, et al.
Dear Mr. Hawke:
Enclosed please find a copy of an order reversing and vacating the district court's order ofJanuary 19,2006. The order directs the ChiefJudge ofWestern District ofMissouri to assign the case to another judge. The order also directs the judge to whom the case is assigned to conduct an immediate hearing and to issue a dispositive order by noon on Wednesday, February 1,2006.
Please contact me if you have any questions.
~}~~ Michael E. Gans Clerk of Court
enc. (Order) cc: Mr. John Simon
Ms. Pat Brune Mr. Troy Cahill

1

United States Court of Appeals

J-e'V3 o4~

FOR THE EIGHTH CIRCUIT

FILED

06-1278 Michael Anthony Taylor,
Appellee,
v.
Larry Crawford, Director Missouri Department of Corrections, James D. Purkett, Superintendent, Eastern Reception Diagnostic & Correction Center and John Does, 1-666 (Anonymous Executioners),

JAN 2 9 2006

*

MICHAEL GANS

*

CLERK OF COURT

* Appeal from the United States

* District Court for the

* Western District of Missouri

*
*

*

* *

Appellants.

FILED: January, 29, 2006
Before RILEY, BEAM AND HANSEN, Circuit Judges
ORDER
This matter comes before the court on an appeal by the State Defendants from the District Court's order of January 19,2006, granting a preliminary injunction or stay order prohibiting Taylor's execution on February 1, 2006. Defendants have filed a motion for vacation of the order.
It is hereby ordered that the district court's order ofJanuary 19,2006 is reversed and vacated.
It is further ordered that the case is remanded to the ChiefJudge ofthe United States District Court for the Western District of Missouri with directions to reassign the case to another judge for an immediate hearing. The judge to whom the case is assigned shall complete the hearing and issue an order on the issues presented no later than 12:00 p.m

(Noon) on Wednesday, February 1,2006. Taylor's execution is stayed until 11:59 p.m. on Friday, February 3, 2006.
Order Entered at the Direction of Court.
Michael E. Gans Clerk of Court United States Court of Appeals for the Eighth Circuit

A M

I'1CRHUAL1CLOE pGyAONFSTffE

ORIGINAL

:;SUtdWir0~ UNITED STATEs ' CLERK

-2-

 
 445 F.3d 1095 (2006)
Michael Anthony TAYLOR, Appellant, v.
Larry CRAWFORD, Director, MO Dept. of Corrections; James D. Purkett, Superintendent, Eastern Reception Diagnostic & Correctional Center, Appellees.
No. 06-1397.
United States Court of Appeals, Eighth Circuit.
Submitted: April 18, 2006. Filed: April 27, 2006.
1096 *1096 Donald B. Verrilli, Jr., argued, Washington DC, for appellant.
James R. Layton, argued, Missouri Attorney General, Jefferson City, MO, for appellee.
Before RILEY, BEAM, and HANSEN, Circuit Judges.
PER CURIAM.
Michael Anthony Taylor appeals the district court's judgment denying his claim, brought pursuant to 42 U.S.C. § 1983, that the State of Missouri's current lethal injection protocol violates the Eighth Amendment's ban on cruel and unusual punishment. We remand for further proceedings consistent with this opinion but retain appellate jurisdiction.
I.
Michael Taylor was sentenced to death after pleading guilty to first degree murder, armed criminal action, kidnapping, and forcible rape for the abduction, abuse and brutal murder of 15-year-old Ann Harrison. See State v. Taylor, 929 S.W.2d 209 (Mo.1996) (en banc), cert. denied, 519 U.S. 1152, 117 S.Ct. 1088, 137 L.Ed.2d 222 (1997). The United States District Court for the Western District of Missouri denied his petition for a writ of habeas corpus, and we affirmed. See Taylor v. Bowersox, 329 F.3d 963 (8th Cir. 2003), cert. denied, 541 U.S. 947, 124 S.Ct. 1681, 158 L.Ed.2d 375 (2004). There is no question that Taylor's convictions and sentence of death are valid, and the State has a significant interest in the prompt execution of its judgments. See Nelson v. Campbell, 541 U.S. 637, 644, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) ("[A] State retains a significant interest in meting out a sentence of death in a timely fashion").
No death warrant had yet been issued on June 3, 2005, when Taylor filed the instant § 1983 action in the district 1097 court challenging the method of his execution. *1097 Taylor sought a declaratory judgment that the State's
existing lethal injection procedure violates the Eighth and Fourteenth Amendments to the United States Constitution by creating a substantial and unnecessary risk that Taylor will suffer the wanton infliction of gratuitous pain.[1] Another Missouri death row inmate, Richard D. Clay, intervened in the lawsuit asserting the same claim. The State's lethal injection protocol, which is not mandated by statute, involves administering (1) a 5gram injection of sodium pentothal (also known as thiopental), (2) a 60-milligram injection of pancuronium bromide, and (3) a 240-milliequivalent injection of potassium chloride, with each injection separated by a saline flush. The injections are administered by an IV catheter that a board-certified surgeon has inserted into the femoral vein. Taylor alleges that the State's three-chemical protocol creates a foreseeable likelihood that he might be conscious but paralyzed and unable to indicate that he is suffering gratuitous and torturous pain before death, and that the placement and use of the femoral vein access causes the gratuitous infliction of pain.
Taylor moved for expedited discovery on August 1, 2005. The court denied the motion but assured Taylor that he would be given sufficient time for discovery and a decision prior to his execution. (See App. at A-52.) Discovery

went forward, but the State objected to certain interrogatories that sought the identity of the doctor and nurse who had attended previous executions. Magistrate Judge Knox issued a protective order requiring the State to provide responses concerning its practices and the qualifications of any medical personnel who have participated in executions, without disclosing their identities or any confidential information.
The State filed a motion to dismiss the action for failure to state a claim and alternatively argued that the case should be recharacterized as a habeas petition and dismissed as second or successive. On December 28, 2005, the district court[2] denied the motion to dismiss. On January 3, 2006, the Supreme Court of Missouri set the date for Taylor's execution as February 1, 2006, providing nearly a month within which the district court could and should have held an evidentiary hearing in this case, resolved the issues and entered a judgment, and we could have entertained any appeal.
Not until January 18, 2006, did the district court set a date for an evidentiary hearing. The court set the hearing for February 21, 2006, and ordered a temporary injunction staying the February 1 execution until further order of the court after the hearing. Judge Wright gave no reason to justify the injunction other than that his calendar was unable to accommodate an evidentiary hearing prior to February 21. The State appealed the injunction on January 23, 2006. We reversed the stay (see Order, No. 06-1278, Jan. 29, 2006) after concluding that the State's strong interest in the prompt execution of its judgment was not outweighed by the district court's scheduling 1098 difficulty. In recognition of Mr. Taylor's equally strong interest in having an evidentiary hearing *1098 on his claims prior to his execution, we ordered that the case be reassigned to a district court judge who could immediately hold an evidentiary hearing and issue a ruling prior to 12:00 noon on February 1. Our order also stayed the execution until 11:59 p.m. on Friday, February 3, 2006, which provided a window of time for an appeal of the merits to this court prior to execution.
On remand, the chief judge of the United States District Court for the Western District of Missouri reassigned the case to the Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri, who promptly held a telephonic evidentiary hearing on January 30 and 31, 2006. Judge Gaitan made it clear to the parties that the hearing would be concluded within the time frame set by this court, and the intervenor withdrew from the case. At the hearing, Taylor presented the expert opinion testimony of Dr. Mark J.S. Heath, an anesthesiologist, and Dr. Jonathan Groner, a pediatric surgeon. Taylor requested the State to produce John Doe Numbers One and Two (the doctor and nurse who participated in the most recent execution), but the district court denied this request. The State presented the testimony of Dr. Mark Dershwitz, an anesthesiologist, and Terry Moore, the Director of the Adult Institutions Division of the Missouri Department of Corrections. At the close of the hearing, Taylor sought to present the expert testimony of Dr. Sri Melethil, a pharmacokineticist, to rebut the State's expert witness, but Dr. Melethil had been out of town and was unable to appear until the morning of February 1. The district court did not permit this delay, and Taylor's attorney was unable to make an offer of proof due to the scientific nature of the testimony and the limited time within which the district court was required to hold the hearing and make a decision. In good faith compliance with this court's order, Judge Gaitan heard and considered the testimony presented on January 30 and 31 and issued an order denying all claims on the afternoon of January 31.
The State then moved to vacate the stay of execution issued by this panel on January 29, 2006. In recognition that the district court had completed the required hearing and entered an order denying Taylor's claims on the merits, our panel modified the stay to provide that it would expire at 5 p.m. on February 1, 2006, rather than on February 3, bringing it within the 24-hour window created by the Supreme Court of Missouri's death warrant. Judge Beam dissented on the ground that he would have vacated the stay in its entirety. (See Order, No. 06-1278, Jan. 31, 2006).
Taylor immediately appealed the district court's adverse order, asserting that the expedited and truncated hearing before the district court denied him of due process, that the district court abused its discretion by not permitting him to call medical witnesses John Doe Numbers One and Two or Dr. Melethil, and that the district court erred in denying his claims on the merits. Taylor also sought a stay of execution. The panel denied the stay. (See Order, No. 06-1397, Feb. 1, 2006) (Hansen, J. dissenting). The same day, the en banc court voted (9-1) to grant Taylor's petition for rehearing and application for a stay. (See Order, No. 06-1397, Feb. 1, 2006) (en banc) (Riley, J.

dissenting). The en banc court then returned the case to this panel for disposition following briefing and oral argument.
II.
Having now thoroughly considered the arguments of the parties and having read the transcript of the record 1099 developed before the district court in the telephonic hearing, we conclude that we will be somewhat *1099 more
comfortable as we consider and determine the merits of the case if the district court has had an opportunity to expand or supplement the record. We mean no criticism of Judge Gaitan; in fact, we commend him for his excellent management of the hearing and the issuance of an order on such short notice and within the extreme time constraints created by the first district judge's failure to give the matter the expedited consideration it required and by our attempt to accommodate both sides within the remaining time established by the expiration date of the state supreme court's death warrant. Having reviewed the record made before the district court, we now realize the burdensome strain that our order imposed upon the district court as well as upon the parties as they made extraordinary efforts to comply. We hereby offer our mea culpa 0907 this panel attempted to accommodate two significant and important competing interests, but unfortunately failed in both respects. As a result, the enforcement of the State's judgment has been postponed, and Taylor was unable to make the record he felt necessary for the full and fair consideration of the merits of his case. We simply asked the district court and the parties to do too much in too little time.
Several existing circumstances inform our decision to remand. The United States Supreme Court is presently considering the issue of whether a § 1983 complaint brought by an inmate sentenced to death and challenging a state's lethal injection procedure is properly recharacterized as a habeas corpus petition. See Hill v. Crosby, ___ U.S. ___, 126 S.Ct. 1189, 163 L.Ed.2d 1144 (2006) (granting an application for a stay of execution and granting the petition for a writ of certiorari on this issue). Because the Supreme Court did not grant a stay in the present case (see ___ U.S. ___, 126 S.Ct. 1191, 163 L.Ed.2d 1145 (2006)), we will permit the case to continue in its present form unless the Court's forthcoming decision in Hill at some point mandates a different course of action.
Additionally, the en banc court of this circuit granted a stay. In view of the existing record, the importance of the issue to this plaintiff as well as others, and the likelihood of the recurrence of these identical issues in future Missouri death penalty cases, we remand for the limited purpose of permitting a continuation of the hearing held on January 30-31, 2006, before Judge Gaitan. While we conclude that some further opportunity for discovery may be warranted, we leave all matters of what further discovery may be warranted to Judge Gaitan, confident that if he feels it necessary he will employ the assistance of Magistrate Judge Knox, in light of Judge Knox's extensive prior experience with the pretrial issues in this case.
III.
Accordingly, we remand the case with instructions that the hearing be reconvened before Judge Gaitan. The parties shall have 30 days from this order to engage in any further discovery that the district court in its discretion deems warranted and an additional 30 days within which the hearing shall be completed and for the district court to enter its order amending, modifying, or restating its present judgment, and certifying the same to us. We will then establish an expedited briefing schedule and an expedited oral argument. We choose this 60-day time period based on the representations of counsel made at oral argument that such a period is sufficient to complete the task already begun, and we will strictly enforce it. We also choose it because we conclude such a period will accommodate the significant interests of both sides, which we have identified.
1100 *1100 The case is remanded for further proceedings consistent with this opinion.
[1] Taylor's complaint also included claims that the lethal injection protocol violates the Thirteenth Amendment as a badge of slavery and that the State unlawfully uses physicians to carry out essential steps in an execution in violation of medical ethics. At oral argument before this court, Taylor's attorneys explicitly abandoned those

claims. We therefore will not address them in this opinion, and they may not be reasserted before the district court on remand. [2] The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri.
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