Arthur v. Thomas et al (DEATH PENALTY)

Filing 386

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Dfts' 364 Alternative Motion for Summary Judgment on Arthur's as-applied Eighth Amendment claim is GRANTED; and 2) Plf's 367 Motion for a New Trial on his Eighth Amendment claim is DENIED, as further set out in order. Signed by Chief Judge William Keith Watkins on 7/19/2016. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
THOMAS D. ARTHUR,
Plaintiff,
v.

JEFFERSON S. DUNN, et al.,
Defendants.

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CASE NO. 2:11-CV-438-WKW
[WO]

MEMORANDUM OPINION AND ORDER
For more than thirty-one years, Plaintiff Tommy Arthur, an Alabama deathrow inmate, has litigated in the state and federal courts1 of Alabama, and in the
Eleventh Circuit and the United States Supreme Court, as is his right.2 The present
case has been in litigation since June 8, 2011. Under controlling law, Arthur’s
bottom-line task here and now is very clear and forthright: Proceeding under 42
U.S.C. § 1983 without challenging the judgment of execution, he must provide a
known and available alternative for what he claims is an unconstitutional execution

Arthur’s federal court litigation includes a habeas petition filed under 28 U.S.C. § 2254,
a prior case filed under 42 U.S.C. § 1983, and the current § 1983 action.
1

2

He was tried for a 1981 murder three times and sentenced to death three times, in 1982,
1987, and 1992. In 2007, Arthur appealed the dismissal of a previous § 1983 action to the
Eleventh Circuit. In deciding that appeal, the Eleventh Circuit reviewed Arthur’s extensive
litigation history and referred to that appeal as “Arthur XXI.” Arthur v. King, 500 F.3d 1335,
1337 (11th Cir. 2007) (“Arthur XXII”). That was almost nine years ago.

method employed by Alabama. He failed to do so in a trial held on his Eighth
Amendment facial challenge in January 2016. (See Doc. # 359.) He has now failed
again to provide an alternative method of execution, this time with respect to his
alleged idiosyncratic or unique medical conditions in an as-applied challenge. This
memorandum opinion and order will conclude this case.
This matter is before the court on Defendants’ Motion for Judgment on the
Pleadings, and in the Alternative, Motion for Summary Judgment on Arthur’s
Eighth Amendment as-applied claim based on his unique health concerns (Doc.
# 364), and Arthur’s Motion for a New Trial (Doc. # 367), filed pursuant to Federal
Rule of Civil Procedure 59(a). The motion for new trial relates to his Eighth
Amendment facial claim that was resolved after a trial in January 2016. All motions
have been fully briefed and are ripe for review. Defendants’ alternative Motion for
Summary Judgment is due to be granted, and Arthur’s Motion for a New Trial is
due to be denied. These motions will be addressed in that order.
I. BACKGROUND
A.

Factual Background and Procedural History
The factual background and procedural history have been thoroughly

recounted in Arthur v. Thomas, 674 F.3d 1257 (11th Cir. 2012), in prior opinions
of this court, and most recently on April 15, 2016. (Doc. # 359 at 2-6.) They need
not be repeated here, except for a brief review which will be followed by a summary
2

of the relevant factual and legal developments that have occurred following the first
part of the bifurcated trial conducted on January 12-13, 2016.

On June 8, 2011,

Arthur filed this action under § 1983 challenging the constitutionality of Alabama’s
method of execution under the Eighth and Fourteenth Amendments to the United
States Constitution after Alabama changed its three-drug, lethal injection cocktail
by substituting pentobarbital for sodium thiopental as the first drug to be injected.3
(Docs. # 1, 12.) In 2014, Alabama again changed its three-drug cocktail, this time
to midazolam hydrochloride, rocuronium bromide, and potassium chloride, and
Arthur amended his complaint to challenge, as violating the Eighth Amendment,
that lethal injection protocol as well.4

(Doc. # 197.)

Arthur’s Fourteenth

Amendment equal protection claim concerned the “consciousness assessment”
component of Alabama’s execution protocol. Following the Supreme Court’s
ruling in Glossip v. Gross, 135 S. Ct. 2726 (2015), Arthur was given leave to file a
Third Amended Complaint to meet the pleading requirements established by
Glossip and Baze v. Kentucky, 553 U. S. 35 (2008), for Eighth Amendment methodof-execution challenges. (Doc. # 267.)

3

The remaining two drugs used by Alabama at the time were pancuronium bromide and
potassium chloride.
Arthur’s challenge concerns the substitution of midazolam hydrochloride for
pentobarbital; he does not challenge the substitution of pancuronium bromide for rocuronium
bromide.
4

3

On January 12–13, 2016, the court conducted the first part of a bifurcated
bench trial (1) on Arthur’s Eighth Amendment facial claim concerning only the
second prong of the Baze/Glossip test, i.e., the availability of an alternative method
of execution to the current lethal injection protocol, and (2) on Arthur’s Fourteenth
Amendment equal protection claim challenging the consciousness assessment.
After considering all of the testimony and other evidence from the bench trial, on
April 15, 2016, the court entered its Findings of Fact, Conclusions of Law, and
Judgment in favor of Defendants on those claims. (Doc. # 359.) Arthur failed to
prove an alternative to the current execution protocol in Alabama. The court found
that neither pentobarbital nor sodium thiopental is available to ADOC as an
execution drug.5 Even if he could prove an unconstitutional risk, he could not and
did not prove a viable, known and available method of execution; therefore,
Arthur’s Eighth Amendment facial claim failed.
The remainder of Arthur’s Eighth Amendment claim, viewed as an asapplied claim concerning his alleged unique medical condition, was not tried and
has not been resolved. This opinion addresses the remaining issue: Arthur’s health
concerns as expressed in his Third Amended Complaint. (Doc. # 267 at ¶¶ 5d, 18,
89 & 100.) In a nutshell, Arthur has alleged that he has cardiovascular issues that

5

Arthur proposed single doses of pentobarbital and sodium thiopental and a firing squad
as alternatives. A firing squad is not a legal method of execution in Alabama.

4

combine with his age and emotional makeup to create a constitutionally
unacceptable risk of pain if he is executed under the current protocol.
B.

Court-Ordered Modified Protocol Negotiations
Acknowledging the possibility that Arthur’s claim that his idiosyncratic or

unique health issues, if proven, may require a modification of the ADOC’s
execution protocol in order to proceed with a constitutional execution, at the
court’s direction the parties engaged in a process to determine if they could agree
on a modified protocol. The results of that process, which occurred after the trial
but before the April 15 ruling, are summarized below.
On February 24, 2016, the court entered an Order establishing a format for
the parties to engage in good faith efforts to resolve Arthur’s protocol issues related
to his specific health conditions. (See Doc. # 351.)6 The order was very specific:
“Arthur shall propose a modified protocol that reasonably addresses these [health]
issues, and to which Arthur would stipulate.” (Id. at 2.) The parties ostensibly
complied with the court’s directive and exchanged written proposals on

6

Summarizing this order, the court directed the parties to meet and confer to determine
if they could agree on a modified protocol that would accommodate Arthur’s idiosyncratic health
concerns. In advance of the meet-and-confer, the court directed the parties to propose a modified
protocol to each other, starting with Arthur first proposing a modified protocol to Defendants,
followed by Defendants’ response thereto and a proposed modified protocol to Arthur. (See Doc.
# 351 at 2.) If, after an exchange of proposed modified protocols the parties were unable arrive
at a modified protocol to which they could stipulate, then the parties were directed to submit their
respective positions on a modified protocol to the court, supported by briefing and evidence for
the court’s consideration. Id.

5

modifications to the current protocol; however, the parties were unable to reach an
agreement on a modified protocol. Consequently, pursuant to the February 24
Order, the parties submitted their respective protocol proposals for the court’s
consideration. (See Docs. # 354 - 357.) Exhibits to these submissions included the
written exchanges between the parties prior to the meet-and-confer.
These exhibits reveal that on March 8, 2016, Arthur advised Defendants that
he could not stipulate to a modified three-drug protocol based on Alabama’s
current protocol using midazolam as the first drug. However, without waiving or
modifying his position, Arthur’s letter, in relevant part, stated:
[H]is position is that a protocol designed to administer midazolam
gradually and with due consideration for Mr. Arthur’s medical
condition—including with medical monitoring of Mr. Arthur’s
health by a trained professional during the protocol with the use of
an electroencephalogram, an electrocardiogram, a bispectral index
monitor and/or other appropriate methods—may reduce to some
extent the likelihood of Mr. Arthur suffering the pain of a heart
attack during administration of the protocol, although it would not
ameliorate those risks entirely or address the other previously
identified reasons why the use of midazolam in a three-drug
execution protocol is violative of Mr. Arthur’s constitutional
rights. Such a modified protocol may also require the
administration of other medication to prevent cardiac
complications. Counsel for Mr. Arthur are endeavoring to obtain
further medical advice, within the confines of ethical rules,
regarding timing and monitoring requirements and will be
prepared to discuss any further details after receipt of Defendants’
position on March 15, 2016 during the parties meet and confer on
or before March 22, 2016.
(Doc. # 354-1 (emphasis added).)
6

On March 15, 2016, Defendants responded to Arthur’s March 8 letter, noting
that Arthur did not address his specific health concerns and did not propose an
actual protocol or provide specific details on modifying the protocol. (Doc. # 3542.) Defendants asked Arthur to provide specific details on the following:
• Define what a gradual administration meant and explain how
“gradually” Arthur wanted midazolam to be administered;
• Define what “due consideration” for his medical condition meant;
• State what specific trained professionals he wanted to participate
in his execution and what specific role these professionals would
have in addressing his alleged health concerns; and
• State what specific “other medication” he wanted to be
administered to prevent cardiac complications.
(Id.) Defendants requested Arthur to provide this specific information prior to the
meet-and-confer, and to explain how these modifications can be implemented.
(Id.) Given the lack of detailed information from Arthur regarding a modified
protocol, Defendants maintained their position:

“Defendants believe that a

properly administered 500-milligram bolus of midazolam, as called for in the
ADOC’s execution protocol, will adequately address Arthur’s alleged health
concerns.” (Doc. # 354-2 at 2.)
While not detailed here, the parties exchanged additional correspondence,
but to no avail. (See Docs. # 354-3, 355-10, 355-14.) Arthur contends he complied
with the court’s directive to propose a modified protocol to which he would agree,
7

but as discussed later in this opinion, that is not the case. From Defendants’
perspective, Arthur had the initial burden to propose a modified protocol, but he
did not meet that burden in that his proposals were too vague and generalized to
enable Defendants to stipulate or to meaningfully respond. Hence, an impasse in
stipulating to a modified protocol ensued.7
Based on the parties’ negotiations toward a modified protocol and the
evidence actually produced, the court concludes that Arthur’s submissions reflect
a lack of good faith in resolving whatever health issues apply to him with respect
to the present execution protocol. Intense prodding by the court saw Arthur
essentially standing mute as to the existence of a specific remedy, i.e., a proposed
alternative method of execution, for an alleged unconstitutional risk. It surely can
be no surprise to Arthur that § 1983 method-of-execution proceedings, like all
lawsuits, contemplate a remedy, a resolution to which the person bringing the suit
would stipulate, were it offered by the opposition. No such remedy, despite
repeated invitations to Arthur, has been offered. He has produced no bona fide

As amply demonstrated by Defendants’ submissions, Arthur’s responses to the February
24, 2016 Order were vague and incomplete. All three “proposals” were little more than
nonspecific suggestions replete with vaporous modifiers, as seen from the following examples:
(1) administration of midazolam “gradually [undefined] and with due consideration
[undefined] for [his] medical condition [unproven]” (Doc. # 354-1);
(2) “medical monitoring” [unspecified] “by a trained professional” [unspecified] using
appropriate methods [unspecified] (Doc. # 354-1); and
(3) “the administration of other medication” [unspecified as to what, how much, dosage
or rate of administration]. (Doc. # 354-1 (brackets added).)
7

8

proposal a court could weigh and consider, despite having the benefit of worldrenowned medical and scientific experts,8 and despite having litigated this case
since 2011.
C.

Arthur’s As-Applied Eighth Amendment Claim
In Arthur’s Complaint and First Amended Complaint, his Eighth

Amendment challenge to the execution protocol was facial. (See Docs. # 1, 12.)
However, in both his Second Amended Complaint and Third Amended Complaint,
Arthur included allegations that suggested he was asserting an as-applied Eighth
Amendment claim in addition to his facial challenge. (See Doc. # 197, ¶¶ 5d, 18,
79, 81, 90; Doc. # 267, ¶¶ 5d, 18, 89, 100.) Thus, over the course of this protracted
litigation, Arthur’s facial challenge has evolved into both a facial challenge and an
as-applied challenge to the execution protocol.
While Arthur did not specifically delineate his hybrid Eighth Amendment
claim into separate counts or plead it clearly, not following the format established
by Federal Rules of Civil Procedure 8 and 10(b), his filings indicate that his Eighth
Amendment claim includes not only a facial claim but also an as-applied claim.

8

Arthur recently but belatedly offered a supplemental Declaration of one of his experts,
J. Russell Strader, Jr., M.D., F.A.C.C., which came closer to the mark of specificity. (See Doc.
# 355-12.) Dr. Strader offered a range of prebolus dosages of midazolam together with a time
range of administration, but failed to suggest how long to administer the prebolus protocol, how
to determine when it has reached its intended effect, or even what would constitute the intended
effect.

9

That the claims are not delineated as such, but rather are intertwined, has required
significant sorting and deciphering, and the court would have acted well within its
discretion to dismiss the as-applied claim. Cf. Gissendaner v. Comm’r, Ga. Dep’t
of Corr., 803 F.3d 565, 567 (11th Cir.) (Gissendaner II), cert. denied sub nom.
Gissendaner v. Bryson, 136 S. Ct. 26 (2015) (observing that the court “would have
been well within its discretion to strike” the complaint because it violated Federal
Rule of Civil Procedure 8(b)(2)). Notwithstanding the procedural irregularity and
Defendants’ urging, out of an abundance of caution, the court has considered his
as-applied claim on the merits.
Cognizant of the medical profession’s stance on lethal injection executions9,
and immediately after publishing the April 15, 2016 ruling on the first issues tried
in January, the court reviewed all submissions and concluded that it was
questionable whether Arthur could produce evidence sufficient to support an asapplied Eighth Amendment claim, especially on the Baze/Glossip prong requiring
proof of a known and available alternative method of execution. No dispositive
motion was pending so the court sua sponte ordered Defendants to file the current
dispositive motion and invited, but did not require, Arthur to do likewise. (See
Doc. # 360.)

See American Medical Association Code of Medical Ethics, Opinion 2.06 – Capital
Punishment.
9

10

Of particular note, that Order very clearly required Arthur to provide
evidence of “specific, detailed, and concrete alternatives or modifications to the
protocol [ ] that more than marginally address his serious health risks,” and that
“provide precise procedures, amounts, times, and frequencies of implementation
that would avoid the court being called upon to make improper medical, scientific,
or peneological decisions, and [ ] that do not implicate abrogation of the death
penalty per se.” (Doc. # 360 (emphases added).) Defendants filed a dispositive
motion, but Arthur did not. Instead, Arthur filed a motion for a new trial on his
Eighth Amendment facial claim.
Arthur claims that because of his unique health concerns, Alabama’s
execution protocol as applied to him will be cruel and unusual punishment in
violation of the Eighth Amendment. Arthur states that because there is a “high
likelihood that [he] has clinically significant obstructive coronary disease,” (Doc.
# 267-1 at ¶ 89), the administration of a 500-milligram dose of midazolam as the
first drug in the three-drug protocol will likely induce “a rapid and dangerous
reduction in blood pressure,” (Id. at ¶ 88) and “will cause him to suffer a painful
heart attack before he loses consciousness.” (Id. at ¶ 87.) Arthur also alleges:
100. Finally, there is a high likelihood that Mr. Arthur, who, among
other things, is in his seventies and suffers from an anxiety disorder,
will experience a paradoxical reaction to the intravenous
administration of midazolam, causing Mr. Arthur to remain in a
conscious state and suffer the severe pain of the administration of
the second and third lethal injection drugs . . . .
11

(Doc. # 267-1 at ¶ 100.)
Distilled to its essence, Arthur’s as-applied claim is that his cardiovascular
issues, combined with his age and emotional makeup, create a constitutionally
unacceptable risk of pain that will result in a violation of the Eighth Amendment if
he is executed under the ADOC’s current protocol. Because Arthur does not request
specific relief on his as-applied claim, it will be presumed that Arthur proposed the
same alternatives for relief as he proposed for his facial claim: a single-drug
injection of either compounded pentobarbital or sodium thiopental, or a firing squad
(the latter of which is not authorized in Alabama). However, based on his proof
and giving Arthur the benefit of the doubt, he also is requesting modification of the
current protocol to require midazolam to be administered gradually with medical
monitoring as an additional alternative form of relief, (See Strader Supp. Decl.
(Doc. # 378-2), but in contradictory fashion, Arthur’s proof from Dr. Kaye is that
midazolam in any form of dosage cannot be used in a constitutional execution.
In evaluating this claim, the court is guided by controlling precedent, Baze v.
Kentucky, 553 U. S. 35 (2008) and Glossip v. Gross, 135 S. Ct. 2726 (2015),
explained in Glossip, below:
The controlling opinion in Baze first concluded that prisoners
cannot successfully challenge a method of execution unless they
establish that the method presents a risk that is ‘‘‘sure or very likely
to cause serious illness and needless suffering,’ and give rise to
‘sufficiently imminent dangers.’’’ Id., at 50, 128 S. Ct. 1520
(quoting Helling v. McKinney, 509 U. S. 25, 33, 34–35, 113 S. Ct.
12

2475, 125 L. Ed. 2d 22 (1993)). To prevail on such a claim, ‘‘there
must be a ‘substantial risk of serious harm,’ an ‘objectively
intolerable risk of harm’ that prevents prison officials from
pleading that they were ‘subjectively blameless for purposes of the
Eighth Amendment.’” 553 U. S., at 50, 128 S. Ct. 1520 (quoting
Farmer v. Brennan, 511 U. S. 825, 846, and n. 9, 114 S. Ct. 1970,
128 L. Ed. 2d 811 (1994)). The controlling opinion also stated that
prisoners ‘‘cannot successfully challenge a State’s method of
execution merely by showing a slightly or marginally safer
alternative.’’ 553 U. S., at 51, 128 S. Ct. 1520. Instead, prisoners
must identify an alternative that is ‘‘feasible, readily implemented,
and in fact significantly reduce[s] a substantial risk of severe pain.’’
Id., at 52, 128 S. Ct. 1520.
The controlling opinion summarized the requirements of an
Eighth Amendment method-of-execution claim as follows: ‘‘A
stay of execution may not be granted on grounds such as those
asserted here unless the condemned prisoner establishes that the
State’s lethal injection protocol creates a demonstrated risk of
severe pain. [And] [h]e must show that the risk is substantial when
compared to the known and available alternatives.’’ Id., at 61, 128
S. Ct. 1520. . . .
The challenge in Baze failed both because the Kentucky
inmates did not show that the risks they identified were substantial
and imminent, id., at 56, 128 S. Ct. 1520, and because they did not
establish the existence of a known and available alternative method
of execution that would entail a significantly less severe risk, id., at
57–60, 128 S. Ct. 1520.
Glossip, 135 S. Ct. at 2737.
Additionally, in Gissendaner II, the Eleventh Circuit held that the pleading
burden and standard of proof established in Baze and Glossip applied to both facial
and as-applied Eighth Amendment claims challenging the method of execution. See
803 F.3d at 568–69. As pertinent here, Gissendaner II establishes that a condemned
13

inmate must both plead and prove a readily available alternative whether the inmate
is raising an Eighth Amendment as-applied challenge or a facial challenge:
“[T]here is no logical reason why there should be a readily available alternative
requirement in facial challenges to lethal injection protocols but not to as-applied
challenges to them.” Id. at 569.
Arthur argues that there are good grounds for distinguishing Gissendaner II
and foregoing the requirement in this case of showing a readily available alternative
method of execution. As he points out, the Gissendaner II majority distinguished
the facts in Seibert v. Allen, 506 F.3d 1047 (11th Cir. 2007), in which the
condemned inmate obtained a preliminary injunction on an Eighth Amendment
claim that lethal injection would cause him severe pain based upon his inoperable
pancreatic cancer. The Eleventh Circuit noted that Gissendaner’s claim, unlike
Seibert’s claim, did not involve an assertion that the “plaintiff’s unique medical
condition would enhance the likelihood and severity of a painful death.”
Gissendaner II, 803 F.3d at 565 n.1. Notwithstanding this factual distinction,
Gissendaner II made no legal distinction in the elements of proof for facial and asapplied method-of-execution claims. It even went so far as to say that Seibert “does
not serve as an authoritative interpretation of the requirements announced in Baze
and Glossip because it preceded both of those decisions.” Id. And in Terrell v.
Bryson, 807 F.3d 1276 (11th Cir. 2015), the concurring opinion confirmed
14

Gissendaner II’s reach to as-applied challenges. See id. at 1280 (Marcus, J.,
concurring) (“As we’ve said in binding precedent, ‘a readily available alternative’
showing is required in all challenges to lethal injection protocols.”) (citing
Gissendaner II, 803 F.3d at 569)).10 Thus, as to his as-applied claim, Arthur has
the burden to plead and prove a known and available alternative method of
execution. Glossip, 135 S. Ct. at 2739.
D.

Arthur’s Idiosyncratic Health Issues11
Arthur is currently 74 years old. He contends that he suffers from clinically

significant coronary artery disease (“CAD”)12 and that because of that condition, he

The Eleventh Circuit’s ruling in Gissendaner II that an inmate filing an as-applied
challenge must meet the pleading and proof standard of Baze and Glossip is consistent with the
law in another circuit. Specifically, the Eighth Circuit has held that an inmate who filed an asapplied challenge to Missouri’s method of execution had to “identify a feasible, readily
implemented alternative procedure that will significantly reduce a substantial risk of severe pain
and that the State refuses to adopt.” Bucklew v. Lombardi, 783 F.3d 1120, 1128 (8th Cir. 2015)
(emphasis in original). The Eighth Circuit recognized that there was some pre-Baze case law
supporting the inmate’s assertion that his as-applied challenge distinguished his case from a facial
challenge to Missouri’s lethal injection protocol. Id. at 1127. But ultimately, the court held that
“capital punishment is constitutional. It necessarily follows that there must be a means of carrying
it out.” Id. at 1128 (quoting Baze, 553 U.S. at 47).
10

In Arthur’s Third Amended Complaint, he alleged that because of his age and because
he suffers from an anxiety disorder, there is a high likelihood that he will experience a paradoxical
reaction to midazolam, resulting in his remaining in a conscious state and suffering the pain of
the administration of the second and third lethal injection drugs. (Doc. # 267 at 30, ¶ 100.)
However, Arthur offered no medical evidence to support his claim that he suffered from an
anxiety disorder. Given his failure of any proof, the court presumes that Arthur has abandoned
that part of his claim.
11

12

As explained in greater detail infra, Dr. Strader reports that before coronary artery
disease (CAD) is clinically significant, the cross-section of an artery needs to be at least 70%
obstructed. (Doc. # 378-1 at 10, ¶ 2.)

15

cannot be executed under the present protocol because a 500-mg bolus dose of
midazolam will induce a heart attack that he will experience before the midazolam
sedates him. Arthur offers support for this argument with the opinions of his expert,
J. Russell Strader, Jr., M.D., F.A.C.C.13 Dr. Strader’s declaration contained two
separate risk assessments from a clinical, not capital punishment, perspective when
he is treating a medical patient: “First, what is the likelihood that the individual has
clinically significant obstructive coronary disease?

And second, what is the

likelihood that the level of anesthesia required for the proposed procedure will cause
the onset of myocardial ischemia and/or infarction?” (Doc. # 378-1 at 3, ¶ 4
(emphases in original).)

Dr. Strader attempted to extrapolate his clinical

observations of routine doses of 2–5 mg of midazolam (and a high of 20 mg,
titrated) into a medical and scientific conclusion regarding a 500 mg dose of
midazolam, the one used in Alabama as the first of the three-drug protocol.
Based on his review and analysis of Arthur’s medical records, Dr. Strader
opined that there is a “significant risk” that Arthur suffers from clinically significant

Summarizing Dr. Strader’s background and qualifications, he is board-certified by the
American Board of Internal Medicine in both Internal Medicine and Cardiovascular Disease, and
he is also board-certified by the American Society of Nuclear Cardiology. He was formerly Chief
of Cardiovascular Services at The Medical Center of Plano in Plano, Texas, and he is currently a
cardiologist in private practice in Colorado Springs, Colorado. He sees an average of 100-125
patients per week. In his routine clinical practice, he administers midazolam to patients for the
purpose of achieving sedation for invasive cardiac procedures. As of November 16, 2015, he had
performed approximately 3,500 invasive procedures using midazolam. (See Doc. # 378-1 at 3,
¶¶ 1, 3, 5.)
13

16

obstructive CAD, for the reasons succinctly stated in his November 15, 2015
Declaration:
8. In my professional medical opinion, Mr. Arthur’s abnormal
ECGs showing evidence of a prior myocardial infarction, history of
recurrent atrial fibrillation, age, presence of hypertension, and
symptoms of recurrent chest pain are all independent risk factors
for coronary heart disease and confer a significant risk of having
clinically significant obstructive coronary artery disease of at least
70%, and possibly greater.
(Doc. # 378-1 at 12, ¶ 8.)
In reaching his next opinion, Dr. Strader defined coronary atherosclerosis and
reviewed its relevant aspects, reporting that a coronary artery needs to be 70%
obstructed before it is hemodynamically significant, as detailed below:
1. Coronary atherosclerosis refers to the deposition of cholesterol
into plaques within the walls of the coronary arteries. Over time,
this results in the narrowing of the vessel, resulting in what is
commonly referred to as coronary heart disease. It takes 3-10 years
for cholesterol plaques to grow to the level of obstructing blood
flow down the coronary arteries.
2. Cholesterol plaques typically need to obstruct at least 70% of
the cross-sectional area of the artery before they are
hemodynamically significant, i.e., before they provide a degree of
obstruction sufficient to cause interruptions or reductions in blood
flow down the coronary artery such that there is a high risk of
induction of myocardial ischemia/infarction.
At levels of
obstruction less than 70%, there is generally enough flow such that
alterations in blood pressure (e.g., supply), or actions such as
exercise that increase myocardial oxygen requirements (e.g.,
demand), do not result in an inadequate oxygen supply to the
myocardium.
(Doc. # 378-1 at 9-10, ¶¶ 1-2.)
17

Based on (1) Dr. Strader’s review noted above, (2) his review of the relevant
aspects of myocardial ischemia/infarction (Doc. # 378-1 at 10-11), (3) his opinion
that Arthur suffers from clinically significant obstructive CAD, (4) the known
hemodynamic effects of midazolam, (5) his experience with midazolam in clinical
practice, and (6) a wide array of medical literature in the field,14 Dr. Strader
rendered a second opinion, as follows:
5. It is therefore highly likely that an individual with obstructive
coronary disease who is given a large and rapid dose of midazolam
would feel the resulting myocardial ischemia and/or infarction,
because it takes more time for midazolam to induce sedation than
it does for myocardial ischemia/infarction to occur.
. . .
7. It is thus highly likely that the administration of a large dose of
midazolam to Mr. Arthur as directed by the ADOC protocol would
result in the very rapid induction of acute myocardial
ischemia/infarction.
8. Given that the onset of myocardial ischemia and/or infarction is
immediate, it is highly likely that Mr. Arthur would experience the
excruciating pain of a heart attack before the onset of midazolam’s
sedative effect.
(Doc. # 378-1 at 13, ¶¶ 5, 7-8.) Arthur relies heavily on the expert testimony of Dr.
Strader to establish the risk prong of Baze/Glossip and to support the alternative
method prong.

14

This supporting medical literature (consisting of excerpts from medical treatises, peerreviewed articles and clinical studies) is attached to Dr. Strader’s deposition. (See generally Doc.
# 364-4.)

18

While Dr. Strader’s expert medical opinions are unrebutted by affirmative
evidence, it is also undisputed that Arthur has not seen or been examined by a
cardiologist or other cardiac specialist since 2009; that there are no current test
results or other recent evidence of Arthur’s present health condition; that he
repeatedly has refused such examination (see generally Doc. # 364-6 (2009–15
medical records))15; and that Dr. Strader opines without ever having examined
Arthur. Nor did Dr. Strader, who appears to be an expert of the highest caliber in
his field, offer a specific method to address both Arthur’s alleged health needs and
the Baze/Glossip alternative method requirement.
Based on controlling precedent and for the reasons explained below, Arthur
has not established that he is entitled to proceed on his as-applied Eighth
Amendment claim.
II. DISCUSSION
A.

Defendants’ Motion for Judgment on the Pleadings and Alternatively for
Summary Judgment
1.

Standard of Review

At the court’s direction, Defendants moved for judgment on the pleadings,
and alternatively, for summary judgment. (Doc. # 364.) As grounds, Defendants

15

In fact, Arthur has refused or interfered with all medical care, including drug regimen
and annual checkups, since 2009. (Id.) He refused to get out of the ADOC vehicle at his last
cardiologist appointment in March 2009. (Doc. # 364-6, at 15–20.)

19

submit that, although Arthur asserted claims regarding his alleged health concerns,
the record reflects that he has no remaining claims pending. Defendants also
contend that Arthur failed to raise an as-applied Eighth Amendment claim, but even
if he had raised that claim, he failed to plead and prove it adequately. Defendants
further argue that even if Arthur is deemed to have alleged an as-applied claim,
summary judgment is warranted on that claim because Arthur has failed to produce
evidence that establishes a genuine dispute of material fact that (1) the use of
midazolam is “sure or very likely to cause serious illness or needless suffering” by
causing him to experience a painful heart attack, and (2) there are known and
available alternatives that are feasible, readily implemented, and in fact
significantly reduce a substantial risk of severe pain.
The parties have engaged in extensive discovery, and their present
submissions rely largely on the evidence. Given the posture of this case and
notwithstanding the Third Amended Complaint’s shortcomings, see supra at Part
I.C., the court finds that the better course is for it to decide Defendants’ motion
under the summary judgment standard. Defendants’ motion for judgment on the
pleadings will be treated, therefore, as a motion for summary judgment under
Federal Rule of Civil Procedure 12(d) (If a court considers “matters outside the
pleadings,” a Rule 12(c) “motion must be treated as one for summary judgment
under Rule 56.”).
20

Summary judgment is proper only when the record evidence, including
depositions, affidavits, and other materials, shows “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U. S. 317, 322 (1986); Fed. R. Civ. P. 56(a), (c). “The
moving party bears the burden of proof,” Allen v. Bd. of Pub. Educ. for Bibb Cty.,
495 F.3d 1306, 1313 (11th Cir. 2007), and the court must “view the evidence and
all factual inferences therefrom in the light most favorable to the non-moving party,
and resolve all reasonable doubts about the facts in favor of the non-movant,” Skop
v. City of Atlanta, 485 F.3d 1130, 1143 (11th Cir. 2007).
2.

Standard of Proof for § 1983 Method-of-Execution Claim

Summarizing and paraphrasing the Baze/Glossip test, to successfully
challenge a method of execution (facial or as-applied), a prisoner must establish
that the method presents a risk that is ‘“sure or very likely to cause serious illness
and needless suffering,’ and give rise to ‘sufficiently imminent dangers.”’ Glossip,
135 S. Ct. at 2737 (emphasis in original). To prevail, “there must be a ‘substantial
risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison
officials from pleading that they were ‘subjectively blameless for purposes of the
Eighth Amendment.’” Id.
Further, a prisoner “cannot successfully challenge a State’s method of
execution merely by showing a slightly or marginally safer alternative.” Baze, 553
21

U. S. at 51. He “must identify an alternative that is ‘feasible, readily implemented,
and in fact significantly reduce[s] a substantial risk of severe pain.’” Id. at 52.
In short, Arthur must point to admissible evidence that would, if credited,
establish a risk and a known and available alternative method of execution that
significantly reduces that risk. As noted earlier, Arthur fails on the alternative
method prong, just as he did in the January 2016 trial of the facial challenge. That
failure will be addressed first; discussion regarding Arthur’s unique health concerns
and associated risks, i.e., the risk prong, will follow.
3.

Alternative Method Prong

Post-Baze and Glossip, it is clear that before a prisoner is entitled to relief, he
must also establish a remedy, that is, “the existence of a known and available
alternative method of execution that would entail a significantly less severe risk.”
Glossip, 135 S. Ct. at 2737 (quoting Baze, 553 U. S. at 56-60). Arthur failed entirely
to do so.

During the meet-and-confer process previously described, Arthur

proposed modifying the protocol “to administer midazolam gradually [undefined]
and with due consideration [undefined] for [his] medical condition—including with
medical monitoring of [his] health by a trained professional during the protocol [not
identified]” with the use of various types of medical equipment “and/or other
appropriate methods [not specified]. . . .” (Doc. # 354-1.) He allowed that “[s]uch
a modified protocol may also require the administration of other medication to
22

prevent cardiac complications,” (id.), without defining “other medication.” Arthur
further stated that these proposed modifications to the protocol “may reduce to some
extent the likelihood of [his] suffering the pain of a heart attack during
administration of the protocol,” (id.), “but would not ameliorate those risks entirely
. . . .” (Id.)
Arthur admits in the language set out above that his nebulous, nonspecific,
and unexplained proposed modifications “may reduce to some extent” the
likelihood of unconstitutional pain. (Doc. # 354-1.) His initial proposed alternative
method of execution is a marginal one and does not satisfy Baze.
Later, Arthur added a measure of detail to his proposal with the filing of Dr.
Strader’s supplemental declaration (Doc. # 355-12; Doc. # 378-2), which offered a
range of prebolus doses of midazolam together with a time range of administration,
but which failed to suggest how long to administer the prebolus protocol, how to
determine when it has reached its intended effect, or even what would constitute the
intended effect. He opined that the gradual rate “would reduce the risk,” though the
reduction is unspecified and cannot be deemed to be more than marginal when
considering the rest of Dr. Strader’s requirements:
(1) A trained professional
(2) who assesses the patient’s response to the prior dose; and,
commonly,
23

(3) continuous EKG monitoring (which of course requires an EKG
and qualified technician);
(4) continuous pulse oximetry monitoring;
(5) frequent blood pressure monitoring;
(6) agents to increase blood pressure (“pressors”) if required by EKG
results; and
(7) the addition of opioid fentanyl, which “is often administered with
midazolam.”
(Id.) Dr. Strader understandably identified these procedures as relevant “in the
clinical setting” (¶ 7) and “in clinical practice” (¶¶ 8, 9). It is understandable
because his opinion is a medical one, describing medical procedures, not execution
procedures. See Baze, 553 U. S. at 59–60 (distinguishing executions from medical
procedures).

Thus, the outlined general procedures cannot be credited as

constitutionally required modifications to the execution protocol in Alabama and
do not constitute viable execution alternatives that are easily implemented and
readily available.
Contrary to the court’s clear directives requiring “specific, detailed and
concrete alternatives or modifications to the protocol” with “precise procedures,
amounts, times and frequencies of implementation,” there is no evidence from
which the court could craft a modification to the existing protocol, at least not
24

without itself engaging in the unauthorized practice of medicine and requiring
medical procedures in the execution context.
A challenge to a method of execution that merely shows “a slightly or
marginally safer alternative,” Baze, 553 U. S. at 51, fails to meet the remedy test.
Further, “because it is settled that capital punishment is constitutional, it necessarily
follows that there must be a constitutional means of carrying it out.” Glossip, 135
S. Ct. at 2732–33 (quoting Baze, 553 U. S. at 47) (alteration omitted)). Moreover,
“because some risk of pain is inherent in any method of execution [,] . . . the
Constitution does not require the avoidance of all risk of pain.” Id. at 2733 (citation
omitted).
To the extent that Arthur relies on any one-drug protocol using pentobarbital
(as suggested by Dr. Strader) or sodium thiopental, those options were foreclosed
by the evidence and findings thereon in the prior opinion. (Doc. # 359.) To the
extent he suggests the use of midazolam at all, he also has insurmountable problems
in terms of proof and evidentiary estoppel. One need consider only the 28-page
declaration of Dr. Alan Kaye, a world-renowned anesthesiologist and Ph.D.
pharmacologist (see Doc. # 355-13), submitted as evidence by Arthur himself, and
cited repeatedly in Arthur’s briefing. Dr. Kaye testifies, and binds Arthur to the
notion, that midazolam absolutely and under no circumstances should ever be used

25

in lethal injection executions. Paragraph 67 illustrates but one of many avenues Dr.
Kaye attacks midazolam:
Because midazolam’s pharmacological effect is reached at
doses far below 500 mg, and at this dose an inmate will not be placed
in a deep enough state of anesthesia such that he will not experience
consciously the effects of the second and third drugs, the size of the
dose Alabama intends to administer is no cure to the fundamental
unsuitability of midazolam as the first drug in the ADOC protocol.
(Doc. # 355-13 (emphasis added).)

At the end of 75 impressive paragraphs

supported by his own and numerous other texts and opinions, copious footnotes,
and metaphors and analogies that speak to a layperson’s understanding, in
paragraph 76 Dr. Kaye sums it up:
In short, the chemical properties of midazolam limit its ability
to depress electrical activity in the brain. The lack of another chemical
property – analgesia – renders midazolam incapable of maintaining
even that limited level of depressed electrical activity under the
undiminished pain of the second and third lethal injection drugs.
(Id. (emphasis added).) Arthur cannot credibly propose the use of midazolam in
any argument for a remedy, based upon his own evidence.16
Arthur’s as-applied vehicle crashes at the same intersection as did his facial
challenge. He has failed to point to admissible evidence that, if credited, would

Kaye’s opinions are untested in court, due to Arthur’s inability to provide a remedy in
his facial, and now as-applied, challenges. Kaye’s opinions are cited here only to illustrate
Arthur’s wholly inconsistent argument that midazolam may be used in an alternative method of
execution, not as evidence on the risk prong of the Baze/Glossip test.
16

26

establish an alternative method of execution that is readily available and more than
“a slightly or marginally safer alternative.” Baze, 553 U. S. at 51.
4.

The Risk: Arthur’s Idiosyncratic or Unique Medical Condition

Arthur’s Eighth Amendment as-applied challenge is doomed for lack of proof
of an alternative method of execution that satisfies the second prong of the
Baze/Glossip test. The risk prong is therefore not dispositive, but is analyzed in the
alternative, for two reasons. First, it is not at all clear that Arthur has sufficient
evidence to go to trial on the issue of his unique health concerns. If his evidence of
unique health risks rises to a level sufficient to survive summary judgment, it is
barely so. Second, Dr. Strader’s opinion that Arthur’s blood pressure will drop
precipitously before the anesthetic effects of midazolam take effect, thereby
creating a likelihood of a painful heart attack before Arthur is sedated, is speculative
and unreliable when extrapolated from a clinical dose of 2 to 5 mg, to a non-clinical,
bolus dose of 500 mg. Neither Dr. Strader nor Dr. Kaye can testify to a reasonable
degree of medical certainty that the “gap” between hemodynamic effects and
sedative effects will occur at a bolus dose —a dose at least 100 times larger than
any clinical dose with which Dr. Strader is familiar—at all; and if the gap does
occur, in what sequence, e.g., will the massive dose create sedative effects first, or
hemodynamic effects first? No science has been offered on the question.

27

The science that is of record is, as they say, all over the place. Just one
example: There is no agreement in the record as to the basic definitions of “sedate”
and “sedative,” and more importantly, “anesthesia.”

Dr. Kaye opines that

midazolam will never produce a plane of anesthesia, as he defines it, even in a 500
mg dose (or presumably a 5000 mg dose, based on his foundational opinions). He
would never, he says, use midazolam as a sole anesthetic agent for painful, invasive
procedures. On the other hand, the FDA-approved label on midazolam says it will
induce anesthesia in 1.5 minutes when used in conjunction with certain other
medications, and in 2 to 2.5 minutes when used alone. Nevertheless, the court will
venture into this technical thicket, hopeful of a logical and reasoned exit on the other
side.
Dr. Strader opines that given Arthur’s known, independent risk factors for
heart disease, there is a significant risk that Arthur has clinically significant
obstructive CAD. If Dr. Strader’s opinion is admissible and credited, Arthur has
cleared the first proof hurdle on summary judgment on the risk prong. He must still
prove the risk of severe pain is very likely or sure to arise from Alabama’s protocol.
Some background science must first be addressed.

28

5.

Hemodynamic and Anesthetic Effects of Midazolam
a.

Hemodynamic Effects

Dr. Strader’s foundational opinion about the hemodynamic effects of
midazolam is that “the injection of midazolam as directed by the ADOC protocol
will likely induce a rapid and dangerous reduction in blood pressure more quickly
than it results in sedation.” (Strader 11/16/15 Decl. Ex, A, at 2, ¶ 3; Doc. # 364-1,
at 2, ¶ 3.) In his clinical experience with clinical doses “midazolam typically will
produce a 10-20% decline in arterial blood pressure.” (Strader 11/16/15 Decl. Ex.
A, at 2, ¶ 4; Doc. # 364-1, at 2 at ¶ 4.) Consistent with Dr. Strader’s statement, the
manufacturer’s package insert for midazolam states that “IV induction of general
anesthesia with midazolam was associated with a slight to moderate decrease in
mean arterial pressure.” (Doc. # 364-7 at 3.) Dr. Strader connects the hemodynamic
effects with the anesthetic effects, postulating a gap in time between them, with
hemodynamic effects occurring first.
b.

Anesthetic Effects

Midazolam is characterized by Dr. Strader as both a sedative and anesthetic.
Indeed, there is no dispute that ADOC uses midazolam for those very effects, before
the introduction of the last two drugs in the protocol. Nor is it disputed that the
consciousness assessment, addressed in a prior opinion (see Doc. # 359), is designed
to measure in some fashion whether the sedative or anesthetic effect has occurred.
29

At trial in January 2016, Arthur presented medical expert testimony from
Alan David Kaye, M.D., Ph.D., who is an anesthesiologist and Doctor of
Pharmacology. Dr. Kaye explained the differences among these terms. First,
“consciousness is being [in] a state of awareness, being able to perceive stimuli
from the environment.” (Kaye Trial Tr. vol. 2, 14:6-8.) Distinguishing between
sedation and anesthesia, Dr. Kaye explained:
Q. And what does sedation mean?
A. Well, sedation is . . . a continuum. And . . . it would be being
calm or relaxed or at ease relative to the environment and
perception of stimuli.
Q. And when you talk about a continuum, what do you mean by
that?
A. And so in anesthesia, of course, this is a very big deal. There
can be mild sedation in which a person can easily respond to verbal
cues and then moderate sedation where there is less response and
finally deep sedation for which the person would be in a deeper
plain of sedation. And in the far end of the continuum would be
anesthesia. Anesthesia would basically be the deepest level of the
continuum in the sedation kind of overview.
THE COURT: Is this continuum widely recognized among
academics in your field?
THE WITNESS: Oh, absolutely. It’s . . . understood at the level of
the first-year anesthesia resident . . . .
(Kaye Trial Tr. vol. 2, 14:9 – 15:1.)
These definitions, from a highly qualified anesthesiologist, are useful in
assessing Dr. Strader’s “gap” testimony, i.e., the suggested gap in time between the
30

onset of the hemodynamic and sedative effects one might expect with the
administration of a bolus, rather than clinical, dose of midazolam. Analysis of that
testimony follows.
c.

Clinical Dose for Sedation (2-5 mg)

Dr. Strader’s clinical experience is limited to administering small clinical
doses of midazolam (2-5 mg) for purposes of sedation. (Strader Dep. 43:20-22.) In
section D of his declaration, he summarizes the hemodynamic and anesthetic effects
of a clinical dose of midazolam:
1.
Administration of midazolam in large doses has significant
hemodynamic effects, in that it can result in a quick and significant
drop in blood pressure. The hemodynamic effects of midazolam
occur quickly and are independent of midazolam’s sedative effects.
In my clinical experience, where midazolam in small doses (2-5
mg) is used to sedate patients undergoing invasive cardiac
procedures, midazolam’s sedative effects generally take 5 minutes
or more to take effect. The hemodynamic effects of lowering blood
pressure can occur much more rapidly (1-2 minutes).
2.
Midazolam is a commonly used medication in clinical
medicine. When used in clinical doses (typically 2-5 mg),
midazolam often exerts significant effects on hemodynamic
variables (e.g., blood pressure, pulse) prior to the onset of sedative
effects. When used in clinical doses, midazolam typically results
in a 10-20% fall in arterial blood pressure. Such a drop is especially
common in elderly patients. A rapid drop in blood pressure can
result in an immediate heart attack, particularly in individuals with
obstructive coronary artery disease. Because of the significant risk
of the onset of hemodynamic effects prior to the onset of anesthetic
effects, clinical protocols have been established to ensure patient
comfort and safety, including constant hemodynamic monitoring
and waiting a sufficient length of time following administration of
midazolam before the initiation of invasive or painful procedures.
31

(Strader 11/16/15 Decl., Ex A, at 5-6, ¶¶ 1-2; Doc. # 364-1 (emphasis added)
(footnotes omitted).)
Because of the time gap of three to four minutes between the hemodynamic
and sedative effects of a clinical dose (2-5 mg), Dr. Strader reports that the standard
practice is to give midazolam to a CAD patient in small doses and to monitor the
patient’s response to the medication by closely observing the patient’s vital signs
for a rapid drop in blood pressure. If a rapid decrease in blood pressure occurs in
the clinical setting, countermeasures are taken with drugs called “pressors” to raise
blood pressure to avoid the onset of a heart attack. (Strader Dep. 17:10-16.)
Dr. Strader acknowledged that the medical literature referenced in his
Declaration did not caution against using midazolam in patients with CAD and
stated that “we use it in patients with coronary disease all the time in routine clinical
practice.” (Strader Dep. 37:1-10.) As of November 16, 2015, he had performed
approximately 3,500 cardiac catheterizations using midazolam as a sedative.
(Strader 11/16/15 Decl., Ex A, at 3, ¶ 5; Doc. # 364-1.) Dr. Strader reported that
approximately 24 of these patients experienced a heart attack after being sedated
with a clinical dose of midazolam. (Strader Dep. 53:10-17.) The statistics from Dr.
Strader’s practice reflect that less than 1% (0.00686%) of these 3,500 patients
suffered a heart attack following administration of a clinical dose.

32

d.

Clinical Dose for Anesthesia

Dr. Strader has little experience administering doses of midazolam that
exceed a clinical dose (2-5 mg) for sedation. He explained: “In the clinical use in
this setting, in the cardiac cath[erization] lab, it’s administered in small doses 1/2 to
1 milligram at a time. Then there’s a waiting period to assess response, and then
readminister it if you need more.” (Strader Dep. 11:6-11.) The largest dose of
midazolam Dr. Strader has administered is a cumulative 20-mg dose that was given
in small doses over time (“titrated”). (Id. at 13:19-24, 15:13-15.) Because Dr.
Strader administers midazolam for sedation purposes only, he had no opinion as to
what would be a clinical dose of midazolam sufficient to induce anesthesia. Dr.
Strader testified that he was aware that midazolam had been approved for use to
induce anesthesia, and he “thinks some anesthesiologists use it for that purpose. I
don’t have any direct knowledge of what they do.” (Strader Dep. 25:11-17.) “To
what extent midazolam would produce full unconsciousness or anesthesia, again, I
would defer that to an anesthesiologist. It’s outside the scope of my practice.”
(Strader Dep. 115:18-21.) As a board-certified internal medicine and cardiac
disease specialist, Dr. Strader has never offered expert testimony, before this case,
concerning anesthesia. (Strader Dep. 7:5-7.)
Some evidence is found in the manufacturer’s package insert accompanying
midazolam, which acknowledges midazolam’s use for anesthesia and states
33

generally that its effects are dose-dependent: “The effects of midazolam on the
CNS [central nervous system] are dependent on the dose administered, the route of
administration, and the presence or absence of other medications.” (Doc. # 364-7
at 2.) According to the package insert, when midazolam is “given IV as an
anesthetic induction agent,” anesthesia is induced in approximately 1.5 minutes,
when narcotic premedication has been used, and in 2 to 2.5 minutes when there is
no narcotic premedication. (Doc. # 364-7 at 3). While there is no direct medical
evidence of the time required by a bolus dose to induce anesthesia, the
manufacturer’s label is direct evidence that at clinical doses (1) midazolam will
induce anesthesia (not just sedation) (2) in as little as 2 minutes without narcotic
premedication.
e.

Non-Clinical Dose (500-mg)

The 500-mg bolus dose of midazolam in the ADOC’s protocol is a dose much
larger than that administered in clinical practice, as Dr. Strader explains in his
Declaration:
4. There is no institutional experience within the field of human
medicine using the dose proposed by the ADOC (500 mg). Based
on the expert report of Dr. Bannister, I understand that the
midazolam called for in the ADOC lethal injection protocol may
precipitate, i.e., fall out of the solution, at the site of injection as it
is first diluted with blood. Given the immediate and severe effects
of midazolam on blood pressure, it is highly unlikely that 75% or
more precipitation of the agent would preclude the hemodynamic
effects noted above. Accordingly, the application of 500 mg of
midazolam would be expected to create a significant risk of the
34

onset of hemodynamic effects prior to the onset of sedative effects,
even with more than 75% precipitation.
(Strader 11/16/15 Decl. Ex. A, at 6-7, ¶ 4; Doc. # 364-1 (footnotes omitted).)
While Dr. Strader has no experience with the effects of a 500-mg bolus dose
of midazolam (a dose at least 100 times larger than any dose with which he is
familiar), he yet opines that the hemodynamic effects would occur more quickly
from a 500-mg dose than they would from a clinical dose. Dr. Strader was careful
to qualify many times that his experience with midazolam is only with clinical (very
small) doses. Especially with the critical gap in time between the sedative effect
and the hemodynamic effect, Dr. Strader makes a point of the small (2-5 mg) dose
of midazolam that results in the “gap.” Dr. Strader declined to offer any opinion as
to the amount of time it would take a 500-mg bolus dose to render one unconscious,
reiterating “[t]hat’s outside my realm of practice.”

(Strader Dep. 19:4-9.)

Nevertheless, extrapolating from his clinical practice, Dr. Strader remained of the
opinion that the sedative effects of a 500-mg bolus dose would take longer than the
hemodynamic effects. (Strader Dep. 19:14-25.)
The court finds the latter opinion unreliable. See generally Daubert v.
Merrell Dow Pharm., Inc., 509 U. S. 579 (1993) (setting forth the standard for the
admissibility of expert testimony). Because Dr. Strader cannot render an opinion
regarding how much time it would take a 500-mg dose to render one unconscious,
it is impossible for him to extrapolate a sequence of hemodynamic effect and
35

sedation. Moreover, any argument based upon the time-gap Dr. Strader emphasizes
between midazolam’s hemodynamic and sedative effects is speculative because the
time-gap is associated with the clinical dose (2-5 mg) for sedation, not for
anesthesia or bolus doses. Also, the argument is based upon an opinion of an expert
who has never administered more than a 20-mg dose of midazolam, and typically
only a 2-5 mg dose, in more than 3,500 invasive procedures in which he used
midazolam.
In any event, taking all the available evidence, Arthur falls short of producing
evidence that the current protocol as applied to him has a demonstrated risk, sure or
very likely to cause severe pain. Arthur has pointed to no admissible medical expert
opinion testimony to establish either the clinical dosage of midazolam necessary to
induce anesthesia or the time-frame within which that would occur. Nor is there
admissible scientific or medical evidence connecting Dr. Kaye’s “consciousness
continuum” directly to the time required for a 500-mg dose of midazolam to
produce anesthesia.17

Ironically, Arthur’s expert in the field of anesthesiology, Dr. Kaye, says that there is no
dosage of midazolam that will “hold an inmate unconscious in the presence of pain stimuli from
the second and third drugs” in the ADOC’s protocol. (Doc. # 378-11, at 1, ¶ 59.) Based upon
midazolam’s “inability to maintain unconsciousness in the presence of noxious stimuli,” Dr. Kaye
“would never attempt nor teach . . . [his] trainees to use midazolam by itself to induce and to
maintain general anesthesia in a healthy adult patient undergoing a painful, invasive procedure.”
(Doc. # 378-11, at 12, ¶¶ 60–61.) The irony is that, as to this as-applied heart-attack challenge,
Dr. Kaye’s opinions drift into the facial challenge of the protocol itself, which is not relevant
directly to Arthur’s as-applied challenge. Arthur’s argument is based solely on the “gap” between
the onset of the blood pressure drop and the sedative effect, which he says will produce a painful
17

36

Moreover, the diagnosis of CAD is tenuous. Arthur could have cured that
very easily by submitting to a medical examination, which he refused.18 As it
stands, he has not been examined for the alleged unique health condition since 2009,
if then. Because he is relying on information that is more than six years old, with
no tests or other findings of recent origin, Dr. Strader’s diagnosis of CAD borders
on being speculative and unreliable.
In any event, his diagnosis cannot support a finding that Arthur is sure or very
likely to suffer a painful heart attack during the administration of midazolam. And
it is not sure or very likely, from the evidence, that any drop in blood pressure will
precede the anesthetic effects of midazolam. Both must exist—the heart condition
and the gap Dr. Strader expects—for there to be a realistic likelihood of the heart
attack. Arthur’s evidence is based on clinical doses (2-5 mg) of midazolam for
sedation, not a dose for anesthetic or execution purposes. Arthur presented no
reliable, non-speculative evidence regarding the effects of a large, 500-mg bolus

heart attack. He has made no reliable scientific connection between the two at a 500- mg bolus
dose.
18

It was not until May 4, 2016—nearly five years after the commencement of this lawsuit
and sixteen months after he raised his as-applied claim (see Doc. # 197)—that Arthur’s counsel
moved for a court order to require Arthur to submit to a medical examination pursuant to Federal
Rule of Civil Procedure 35(a) for a determination by a cardiologist as to whether he has clinically
significant coronary artery disease that may be impacted by ADOC’s execution. As explained in
the Order entered on May 10, 2016 (Doc. # 366), that request came too little and too late in the
litigation day and, consequently, was denied. Besides, Arthur has not wavered in his refusal: “I
am not going to endure the pain and the absolutely unnecessary bruising that accompanies taking
my blood.” (See Doc. # 378 n.5.)

37

dose of midazolam and the speed at which it produces a decrease in blood pressure
or anesthesia. Thus, it cannot be said that a heart attack is sure or very likely at all;
one cannot make that connection from the medical evidence.
Arthur has failed to raise a genuine dispute of material fact of a sure or very
likely risk of severe pain in the application of Alabama’s execution protocol as
applied to him. This failure also dooms his as-applied Eighth Amendment claim.
B.

Arthur’s Motion for a New Trial
Pursuant to Federal Rule of Civil Procedure 59(a)(2), Arthur has moved for

a new trial on his facial Eighth Amendment claim19 based on newly discovered
evidence that he obtained post-trial. (Doc. # 367.) Specifically, Arthur states that
on April 14, 2016, his counsel learned from plaintiffs’ counsel in Grayson v. Dunn,
et al., No. 2:12-cv-316-WKW (M.D. Ala.)20, another method-of-execution
challenge pending before the undersigned, that Dr. Daniel Buffington, a pharmacist
and Defendants’ expert in this case and the Midazolam Litigation, testified during
his deposition in March 2016 that he knew of qualified pharmacists who were
willing to compound pentobarbital for the ADOC. Arthur contends that this new
evidence undermines Defendants’ position that the ADOC cannot obtain

19

Arthur did not request a new trial on his Fourteenth Amendment claim and has reserved
all rights to appeal the court’s decision on all of his claims once the court enters a final and
appealable order under 28 U.S.C. § 1291 and Federal Rule of Appellate Procedure 4(a)(1)(A).
20

That consolidated case is known as the Midazolam Litigation.

38

compounded pentobarbital, as well as the court’s prior finding that compounded
pentobarbital is not available to the ADOC. For this reason, Arthur submits that a
new trial is necessary.
Federal Rule of Civil Procedure 59(a)(2) provides that, “[a]fter a nonjury
trial, the court may, on motion for a new trial, open the judgment if one has been
entered, take additional testimony, amend findings of fact and conclusions of law
or make new ones, and direct the entry of a new judgment.” The Eleventh Circuit
has held that “[t]o obtain a new trial based on such a motion, the movant must
demonstrate that [(1)] the evidence was discovered after trial, [(2)] that due
diligence was shown, and [(3)] that the evidence was neither cumulative nor
impeaching but actually material and likely to produce a new result.” Branca v.
Security Benefit Life Ins. Co., 789 F.2d 1511, 1512 (11th Cir. 1986).
Arthur contends that the evidence from Dr. Buffington satisfies the three
Branca requirements and that, therefore, he is entitled to a new trial. On first blush,
Arthur’s argument has some appeal. But upon closer inspection of Dr. Buffington’s
deposition testimony and his post-deposition affidavit, the court concludes that
Arthur’s “new evidence” is nothing but generic testimony from Dr. Buffington
describing passing conversations he has had with other pharmacists during national

39

conventions21 concerning the use of pharmaceuticals, including pentobarbital, for
lethal injection. Dr. Buffington testified, in general terms and without disclosing
names, that he knew pharmacists who had indicated that they would prepare
compounded pentobarbital for use in lethal injections. (Buffington Dep. 101:6-17.)
However, he declined to provide any names, noting that he would need to obtain
permission from these pharmacists to disclose their names before he could identify
them. (Buffington Dep. 101:18-21.) Dr. Buffington’s testimony taken out of
context could create the impression that compounded pentobarbital might be
available to the ADOC.
In response to Arthur’s motion for a new trial and pursuant to Federal Rule
of Civil Procedure 59(c), Defendants submitted the affidavit of Dr. Buffington to
clarify his testimony concerning compounded pentobarbital. (Buffington Aff., Ex.
B; Doc. # 383-2.) Summarizing his affidavit, Dr. Buffington states that Defendants
retained him as an expert to provide information about the pharmacological effects
of medications used in lethal injection protocols, midazolam in particular, but that
he was not asked to render an opinion as to the availability or feasibility of obtaining
either compounded pentobarbital or sodium thiopental for the ADOC or to assist

21

Dr. Buffington, a pharmacist licensed in Florida and Georgia, is on the Board of
Trustees of the American Pharmacists Association. (Buffington Dep. 97:11-16; 98: 16-19.)

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the ADOC in locating a pharmacist to compound pentobarbital. (Buffington Aff.,
Ex. B, at 1-2; Doc. # 383-2.)
In his affidavit, Dr. Buffington explains that in response to questions by
plaintiffs’ counsel in the Midazolam Litigation about compounded pentobarbital,
he “testified that the use of pharmaceuticals in lethal injections is an area of open
discussion in the pharmacy community and that some colleagues [he] ha[s]
encountered at professional events such as national conventions and conferences
have commented that they would be willing to compound pentobarbital for use in
lethal injections.” (Buffington Aff., Ex. B, at 2; Doc. # 383-2.) However, he did
not disclose the identity of any of these pharmacists. Id. He states that after his
deposition, Defendants’ counsel asked him to contact the compounding pharmacists
and pharmacies that he thought “were capable of compounding pentobarbital to
inquire if they were willing to be contacted directly by the ADOC concerning the
performance of this type of technical service.” Id. To comply with that request,
Dr. Buffington states that he contacted fifteen pharmacists, some of whom were
located in Alabama, to inquire as to their interest and willingness to provide
compounded pentobarbital to the ADOC. Dr. Buffington reported their responses:
7. None of the 15 pharmacists [whom] I contacted were able and
willing to supply compounded pentobarbital for use in lethal
injections to the ADOC. In addition, none of the pharmacists
provided me permission to share their names and contact
information with the ADOC or counsel for the Defendants.
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(Buffington Aff., Ex. B at 3, ¶ 7; Doc. # 383-2.)
Thus, Arthur’s reliance on Dr. Buffington’s testimony to support his motion
for a new trial is misplaced. This testimony is insufficient to warrant granting
Arthur a new trial because it is speculative as to compounded pentobarbital’s
availability to the ADOC. When examined in context, the testimony confirms that
Arthur cannot prove that compounded pentobarbital is an alternative that is
available to the ADOC. See Glossip, 135 S. Ct. at 2737. The testimony is “not
likely to produce a new result,” Branca, 789 F.2d at 1512, and Arthur’s motion for
a new trial is due to be denied.
III. CONCLUSION
For the reasons stated, it is ORDERED as follows:
1.

Defendants’ Alternative Motion for Summary Judgment on Arthur’s

as-applied Eighth Amendment claim (Doc. # 364) is GRANTED; and
2.

Plaintiff’s Motion for a New Trial on his Eighth Amendment claim

(Doc. # 367) is DENIED.
A Final Judgment in Defendants’ favor on all claims will be entered
contemporaneously with this Memorandum Opinion and Order.
DONE this 19th day of July, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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