In Re: Ohio Execution Protocol Litigation

Filing 1244

DECISION AND ORDER ON TESTING MATERIALS FROM THE OTTE EXECUTION signed by Magistrate Judge Michael R. Merz on 9/21/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: OHIO EXECUTION
PROTOCOL LITIGATION,

Case No. 2:11-cv-1016

Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
This Order relates to All Plaintiffs

DECISION AND ORDER ON TESTING MATERIALS FROM THE
OTTE EXECUTION

The testing of materials used during the execution of Gary Otte on September 13, 2017
shall proceed as follows:
1) Defendants will remove the identifying labels from the drug vials, and will re-label
them with numbers for testing purposes. The Defendants have segregated the midazolam vials
into two groups. The vials that became the contents of syringes 1 & 2 shall be labeled # 1-10 and
the vials that became the contents of syringes A & B shall be labeled # 11-20. The remaining
vials shall retain the numbering system this Court set forth in ECF No. 1154, to wit, the ten
rocuronium vials shall be labeled # 21-30, and the six potassium chloride vials shall be labeled #
31-36;
2) the IV tubing shall be labeled in accordance with the specific location to which it was
attached;
3) the syringes shall retain their alphabetic or numeric labels;

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4) the drug vials, IV tubing and syringes shall be sent to Avomeen Analytical Services,
4840 Venture Drive, Ann Arbor, Michigan, 48108, for quantitative testing to determine the
volume of liquid remaining in those medication vials, IV tubing, and syringes, with the costs for
such testing to be borne by the Plaintiffs since they have requested that the testing be conducted.
Plaintiffs desire to have Avomeen Analytical Services measure the length of the IV
tubing.

Defendants were provided an opportunity during the scheduling conference on

September 21, 2017, to explain their objections to that request. Without determining whether the
length of the tubing is or may be material to any issue in the case, the Court finds having the
tubing measured imposes no burden on Defendants.
Accordingly, it is ORDERED that paragraphs (1)-(4) above shall be implemented.
Defendant Richard Theodore shall, no later than 3:00 p.m. on Thursday, September 21, 2017,
prepare for shipment all of the vials, as well as the syringes and the tubing preserved by the
Defendants pursuant to this Court’s preservation order (ECF No. 1232), and shall ship these
items for overnight delivery to Avomeen Analytical Services, 4840 Venture Drive, Ann Arbor,
Michigan, 48108, for quantitative testing to determine the volume of liquid remaining in those
medication vials, IV tubing and syringes.
The testing of the Otte execution materials shall also include measurement of the length
of the IV tubing.
September 21, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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