IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

WILLIE MCNAIR, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) No. 2:06-cv-695-WKW-CSC 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants. ) 

________________________________ 

JAMES CALLAHAN, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) No. 2:06-cv-919-WKW-CSC 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants. ) 

DEFENDANTS’ MOTION IN LIMINE

 The defendants move to prohibit any mention of the

American Veterinary Medical Association’s (AVMA) Guidelines 

on Euthanasia or any mention of animal euthanasia during 

the trial scheduled for October 3-5. The defendants make 

this motion pursuant to Federal Rules of Evidence 401, 402, 

and 403. In support, the defendants state the following: 

 1. This Court has broad discretion to determine the 

admissibility of evidence, and the Eleventh Circuit will 

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not disturb this Court’s judgment absent a clear abuse of 

discretion. United States v. McLean, 138 F.3d 1398, 1403 

(11th Cir. 1998); see also United States v. Jernigan, 341 

F.3d 1273, 1285 (11th Cir. 2003)(“Inherent in this standard 

is the firm recognition that there are difficult 

evidentiary rulings that turn on matters uniquely within 

the purview of the district court, which has first-hand 

access to documentary evidence and is physically proximate 

to testifying witnesses and the jury.”). This Court should 

grant this motion because issues concerning animal 

euthanasia are irrelevant to human lethal injection. In 

addition, as the accompanying affidavit demonstrates, any 

comparison of animal euthanasia with human lethal injection 

misrepresents the AVMA Guidelines. 

 2. Mark Heath, an anesthesiologist who travels across 

the country testifying against numerous States’ execution 

procedures, see Heath expert report at ¶¶3-10, has been 

designated by the plaintiff inmates as their expert

witness. Dr. Heath has contended, in numerous affidavits 

and trial testimony, that the AVMA Guidelines prohibit the 

use of anesthesia in a sequence with a neuromuscular 

blocking agent. In addition, Dr. Heath routinely states 

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that a lethal injection does not meet veterinary standards 

for euthanizing cats and dogs. 

 3. For example, Heath’s affidavit filed in Grayson v. 

Allen, 06-1032-WKW, states “the ADOC’s procedures are not 

compliant with the guidelines set forth by the American 

Veterinary Medical Association for the euthanasia of 

animals.” Doc. 48, Heath Declaration at 15. In that same 

affidavit, Dr. Heath stated “[a]ll of these problems could 

easily be addressed and indeed have been addressed by the 

veterinary profession for the euthanasia of dogs and cats.” 

Doc. 48, Heath Declaration at 25. 

 4. Heath has offered similar statements during trial 

testimony. In Vernon Evans v. Mary Anne Saar, No. 06-149, 

p. 12, Sept. 19, 2006, Dr. Heath stated the following: 

Q: Dr. Heath, why did you agree to 

testify in this case? 

A. I’d seen the protocol from prior 

cases in Maryland and the protocol hadn’t 

substantially changed, and it’s something 

that you wouldn’t be allowed to do to a 

dog or cat. And it doesn’t meet those, 

doesn’t even come close to veterinary 

standards, and this should not be done to 

any animal, including a human. 

In Michael Taylor v. Larry Crawford, 05-4173-cv-S-FJG, p. 

12, Dr. Heath stated the following: 

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Q: Do you think that lethal injection 

can be performed humanely? 

A: Yes, it can. 

Q: Could you explain your view on that? 

A: Well, many household pets, cats and 

dogs, are given lethal injection as part 

of what we call euthanasia or putting an 

animal to sleep and that’s done by 

qualified veterinarians thousands of 

times a day in our country. And I am 

very confident that the fashion in which 

it’s being performed is a humane 

process.1

 5. These statements are so pervasive in lethalinjection litigation that similar assertions have been 

mentioned during Supreme Court oral arguments and in a 

recent decision that ruled Tennessee’s execution procedures 

are unconstitutional. During the oral argument of Hill v. 

McDonough, Justice Stevens asked the following question: 

“But your procedure, if I understand it, would be prohibited 

to be applied to dogs or cats.” 2006 WL 1194528 at *35 

(Apr. 26, 2006). Just last week, United States District 

Judge Aleta Trauger stated in her order that “[d]ue to the 

risk that pancuronium bromide could cause an animal to 

suffocate to death while paralyzed but fully awake, the use

 

1 Both of these transcripts can be found at the following 

website: http://www.law.berkeley.edu/clinics/dpclinic 

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of the drug on animals for purposes of euthanasia is 

prohibited in Tennessee by the Nonlivestock Humane Death 

Act.” Harbison v. Little, 3:06-01206, slip op. at 18. As 

the following demonstrates, the AVMA Guidelines do not 

prohibit the use of anesthesia and a neuromuscular blocking 

agent via separate syringes. 

 6. The defendants have recently obtained an affidavit 

from Dr. Gail Golab, the Interim Director of the Animal 

Welfare Division of the AVMA. See Exhibit A at 1. Dr. 

Golab, at the request of counsel for the defendants

addressed some of the issues regarding the AVMA Guidelines 

on Euthanasia. Id. There can be no question that Dr. Golab 

is qualified to testify on issues regarding the AVMA 

Guidelines. Id. at 2. Dr. Golab earned a Ph.D. in 

Biochemistry in 1987 from Texas A&M University, and a 

D.V.M., with honors, in 1991 from the University of

Illinois. Id. After three years of private practice, she 

accepted a position with the AVMA as a “scientific editor 

for the Journal of the American Veterinary Medical 

Association and the American Journal of Veterinary 

Research.” Id. In 1998, Dr. Golab “joined the AVMA’s 

Division of Education and Research as an assistant 

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director,” becoming “associate director” in 2006, and 

“interim director” in 2007 of the newly created Animal 

Welfare Division. Id.

 7. The primary misrepresentation that is made 

concerning the AVMA Guidelines concerns the prohibition of 

using pentobarbital in combination with a neuromuscular 

blocking agent. That document contains the following 

provision: “A combination of pentobarbital with a 

neuromuscular blocking agent is not an acceptable 

euthanasia agent.” AVMA Guidelines, Exhibit B at 11. Dr. 

Golab states the following regarding the above-quoted 

prohibition: 

The quoted text refers to a mixture of a 

barbiturate and neuromuscular blocking 

agent in the same syringe. When used in 

that fashion, it can be difficult to 

ascertain which would act first and, 

thereby, an animal might become paralyzed 

while still conscious. This is not the 

case in human lethal injection: drugs are 

administered in order and via separate 

syringes. The AVMA’s statement should 

not be interpreted as a condemnation of 

the appropriate administration of these 

combinations (i.e., in the appropriate 

order and via separate syringes). 

Exhibit A at 3. As Dr. Golab states, the AVMA Guidelines 

do not express an opinion on whether a neuromuscular 

blocking agent can be administered via separate syringes, 

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as is the case in a lethal injection. 

 8. Because the AVMA Guidelines have been so widely

misinterpreted, the AVMA was compelled to place the

following statements on the cover of the Guidelines: 

(a) The guidelines are in no way intended 

to be used for human lethal injection. 

(b) The application of a barbiturate, 

paralyzing agent, and potassium chloride 

delivered in separate syringes and stages 

(the common method used for human lethal 

injection) is not cited in the report. 

(c) The report never mentions pancuronium 

bromide or Pavulon, the paralyzing agent 

used in human lethal injection. 

Id. at 2-3, Exhibit B (cover page). Dr. Golab stated those 

statements were placed on the cover of the AVMA Guidelines 

for the following reasons: 

These statements were included on the 

cover because the AVMA is concerned that 

its guidelines are inappropriately being 

used to draw conclusions regarding lethal 

injections administered to individuals as 

a form of capital punishment. The 

panel’s objective in developing the 

report was to give veterinarians guidance 

for relieving pain and suffering of 

nonhuman animals that are to be 

euthanized. Recommendations in the 

report are intended to be guidelines for 

veterinarians who must then use 

professional judgment in applying them to 

the various settings where nonhuman 

animals are to be euthanatized. The 

report cannot and should not be 

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extrapolated to apply to lethal injection 

procedures for people. 

Id. at 3-4. 

 9. Dr. Heath’s references to the AVMA Guidelines are 

irrelevant to the issues presented in this case because 

those provisions are regulating how veterinarians euthanize 

animals. Obviously, thousands of animals are euthanized on 

a daily basis by veterinarians and the AVMA, along with 

State statutes, impose various regulations and guidelines. 

Of course, there is no similar mechanism in place for human 

lethal injection. In addition, a quick look at the AVMA 

Guidelines demonstrates that it should not be used as any 

type of marker that a human lethal injection should be 

comparable. The AVMA Guidelines address euthanasia by some 

of the following methods: (1) penetrating captive bolt, (2) 

euthanasia by a blow to the head, (3) gunshot, (4) cervical 

dislocation, and (5) decapitation. Exhibit B at 13-14. It 

should be obvious that the AVMA Guidelines cannot be 

considered and are thus irrelevant in considering whether 

execution procedures are unconstitutional. 

 10. Pursuant to FRE 401 and 402, any reference to the 

AVMA Guidelines or to animal euthanasia in general is 

irrelevant to the issues before this Court. The AVMA 

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Guidelines prohibits only the use of pentobarbital in 

combination with a neuromuscular blocking agent in the same 

syringe.2 Exhibit A at 3. The AVMA Guidelines have been so

widely misinterpreted that the AVMA found it necessary to 

include a warning that the Guidelines should not be used to 

support any contention regarding lethal injection. Exhibit 

B (cover sheet). Even to the extent that the AVMA 

Guidelines are relevant, the information should be excluded 

pursuant to FRE 403 because their probative value is 

outweighed by “danger of unfair prejudice” or “confusion of 

the issues.” The defendants will be prejudiced by any 

misuse of the AVMA Guidelines and such misuse could cause 

confusion. In addition, any reference to animal euthanasia 

in general is irrelevant to the issues presented here. As 

Dr. Golab states, the Guidelines are to be used only by 

veterinarians as recommendations on how to carry out animal 

euthanasia. As is stated on the Guidelines cover sheet, 

“the guidelines are in no way intended to be used for human 

lethal injection.” 

 In conclusion, for the foregoing reasons, the

 

2 The AVMA Guidelines indicate that in certain situations the use 

of pentobarbital in sequence with a neuromuscular blocking agent 

is appropriate. Exhibit B at 18. 

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defendants respectfully request this motion in limine be 

granted. 

Respectfully submitted, 

TROY KING (KIN047) 

ATTORNEY GENERAL 

BY: 

/s/ J. Clayton Crenshaw (CRE007)

Assistant Attorney General 

James W. Davis (DAV103)

Assistant Attorney General 

OF COUNSEL: 

Office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7300 

(334) 353-3637 Fax 

Email: ccrenshaw@ago.state.al.us 

jimdavis@ago.state.al.us 

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CERTIFICATE OF SERVICE

I hereby certify that on the 24th day of September,

2007, I electronically mailed this motion to the following: 

Randall S. Susskind 

Cathleen I. Price 

Equal Justice Initiative of Alabama 

122 Commerce Street 

Montgomery, AL 36104 

cprice@eji.org

rsusskind@eji.org

Vincent R. Fitzpatrick, Jr. (SDNY Bar No. VF2907) 

Heather K. Mcdevitt (SDNY Bar No. HM9973) 

Stephanie Cohen (SDNY Bar No. SM7006) 

White & Case LLP 

1155 Avenue of the Americas 

New York, NY 10036 

Telephone: (212) 819-8200 

Facsimile: (212) 354-8113 

vfitzpatrick@whitecase.com

hmcdevitt@whitecase.com

stephcohen@whitecase.com

OF COUNSEL 

/s/ J. Clayton Crenshaw (CRE007)

Assistant Attorney General 

office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7300 

(334) 353-3637 Fax 

Email: ccrenshaw@ago.state.al.us 

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