Warner et al v. Gross et al

Filing 626

ORDER granting in part and denying in part 612 Defendants' Motion in Limine to Exclude or Limit the Testimony of Dr. Van Norman and Motion for Sanctions (as fully set out in this order). Signed by Judge Stephen P. Friot on 2/23/2022. (llg)

Case 5:14-cv-00665-F Document 626 Filed 02/23/22 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

RICHARD GLOSSIP, et al.,
Plaintiffs,
-vsRANDY CHANDLER, et al.,
Defendants.

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Case No. CIV-14-0665-F

ORDER
Before the court is the Defendants’ Motion in Limine to Exclude or Limit the
Testimony of Dr. Van Norman and Motion for Sanctions, doc. no 612. The court
has carefully reviewed the motion and the response, doc. no. 621. The motion will
be granted in part and denied in part.
Consistent with the court’s determination at the pretrial conference, Dr. Van
Norman will be permitted to testify at trial. See, doc. no. 599, at 2. As is set forth
below, the scope of her testimony will be limited to the basis which was proffered
at the pretrial conference to justify adding Dr. Van Norman as an expert witness at
this very late stage of this litigation.
The possibility of listing Dr. Gail Van Norman as an additional expert witness
for the plaintiffs was discussed in detail at the pretrial conference. The backdrop for
that discussion was the fact that the John Grant and Bigler Stouffer executions had
taken place, respectively, in late October and early December, 2021, the Donald
Grant execution had taken place on January 27, 2022, and the Gilbert Postelle
execution was scheduled for February 17, 2022–all of which, as the court and the
parties had recognized, would generate new evidence. Accordingly, plaintiffs’

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counsel told the court that Dr. Van Norman was “an actively-practicing
anesthesiologist who is looking now at the most recent executions and the documents
we’ve gotten, and it’s our intent to use her to talk about the recent evidence that
exists based on the executions in late 2021 and 2022.” Pretrial conference transcript,
doc. no. 609, at 10 (emphasis added).
Defendants objected to permitting plaintiffs to add Dr. Van Norman.
According to defendants, adding Dr. Van Norman was “[n]ot only [] duplicative of
their other anesthesiologists and expert witnesses, but also it’s just simply too late to
continue to add more and more, especially expert witnesses, to this matter.” Id. at
12. In response, plaintiffs’ counsel emphasized the “new evidence” justification for
listing Dr. Van Norman:
She would and is going to focus on the new evidence; that is, John
Grant, Mr. Stouffer, and Donald Grant, and Mr. Postelle. And to look
at – you know, these can be characterized, as I see it, in terms of what
the individual is experiencing at different stages of the execution, and
she is best positioned, as an anesthesiologist who teaches it and – is
practicing actively for the last 35 years and currently, to opine on what
is understood to be happening in the midazolam phase, you know, in
each of the executions. Based not only on midazolam, but on the issue
of consciousness.
Id. at 13.
When the court pressed counsel on the question of why Dr. Van Norman had
not been listed earlier, plaintiffs’ counsel emphasized that “we think it would be
useful and helpful to the Court to have Dr. Van Norman testify discretely on the new
evidence, which, of course, didn’t exist until very recently and certainly didn’t exist
when expert discovery was being done in this case.” Id. at 15 (emphasis added).
In contrast to the justification proffered at the pretrial conference, plaintiffs
now propose to have Dr. Van Norman testify on a wide range of subjects. See, doc.
no. 612-2 (Dr. Van Norman’s Rule 26 report). The subjects plaintiffs would now

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have Dr. Van Norman address include generalized testimony as to the efficacy of
midazolam, the asserted “ceiling effect,” the efficacy of the consciousness check
called for by the Oklahoma protocol, the effect of injection of vecuronium bromide,
and the effect of injection of potassium chloride. Id. at 13 - 38. These are matters
as to which expert witnesses should have been (and were) listed long ago. It is far
too late for either side to go back to the expert witness well and recruit new experts
on these issues. Plaintiffs’ attempt to do so is neither substantially justified nor
harmless within the meaning of Rule 37, and plainly runs contrary to the justification
proffered at the pretrial conference. E.g., Jacobsen v. Deseret Book Co., 287 F.3d
936 (10th Cir. 2002). Listing an additional expert witness at this late stage is arguably
justified by the fact that the four recent executions have generated new information
to be evaluated by experts. To be sure, no reason is apparent for which plaintiffs’
previously-listed experts could not opine as to matters to be inferred from the four
recent executions, but the court, at the pretrial conference, chose to take a relatively
permissive approach to plaintiffs’ request.
Accordingly, the motion is GRANTED IN PART AND DENIED IN PART,
as follows:
1.

Dr. Van Norman will be permitted to testify as to inferences relevant to

the issues in this case, based on matters occurring at the four recent executions. (By
way of example, relating to the four recent executions: Was the prisoner conscious,
or not, at various stages of the execution? What, if anything, was the prisoner feeling
at various stages of the execution? At what point did the prisoner become insensate
to pain or noxious stimuli? Was John Grant conscious as gastric contents flowed
toward his head? Did John Grant aspirate gastric contents? Did the prisoner
experience asphyxia? If so, was the prisoner conscious when he experienced
asphyxia? Was the prisoner unconscious when he was pronounced unconscious?

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At what point did the prisoner die? Was the prisoner dead when death was
pronounced?)
2.

Generalized testimony from Dr. Van Norman as to the efficacy of

midazolam and related matters (e.g., doc. no. 612-2, at pp. 13 - 38) will not be
permitted.
3.

The court, in its discretion, declines to sanction plaintiffs’ counsel.

IT IS SO ORDERED this 23rd day of February, 2022.

14-0665p154.docx

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