Chester et al v. Beard et al

Filing 273

MEMORANDUM (Order to follow as separate docket entry) re 240 DEFENDANTS' MOTION TO STRIKE and, 205 MOTION for Summary Judgment filed by Jeffrey A. Beard, David Diguglielmo, Franklin J. Tennis. Signed by Honorable Yvette Kane on 2/13/15. (pw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FRANK ROBERT CHESTER, et al.,
Plaintiffs
v.
JOHN E. WETZEL, et al.,
Defendants

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No. 1:08-cv-1261
(Judge Kane)

MEMORANDUM
Before the Court is Defendants’ motion for summary judgment (Doc. No. 205), and
Defendants’ motion to strike (Doc. No. 240-1.). The motions are fully briefed and ripe for
disposition. For the reasons that follow, the Court will grant the motion for summary judgment,
and enter summary judgment in favor of Defendants. It will also grant the motion to strike in
part and deny it in part.
I.

BACKGROUND
A.

Procedural Background

The original complaint in the above-captioned class action was filed on November 9,
2007. (Doc. No. 1.) The complaint alleged that Pennsylvania’s lethal injection protocol poses
an unnecessary risk that Plaintiffs will suffer pain in violation of the proscription against cruel
and unusual punishment and the guarantees of due process of law under the Eighth and
Fourteenth Amendments of the United States Constitution. (Id. ¶ 40.) The Plaintiff class
consists of all persons who are presently under a sentence of death in Pennsylvania or who at
some point during the pendency of this action will be under a sentence of death by lethal
injection in Pennsylvania. Defendants are John E. Wetzel, Secretary of the Pennsylvania
Department of Corrections (“DOC”) and Marirosa Lamas, Superintendent of the State
1

Correctional Institute at Rockview, both of whom were automatically substituted for former
Secretary of the DOC Jeffrey A. Beard, and former Superintendent Franklin J. Tennis. (Doc.
No. 206 ¶ 2.)
The full procedural history of this case through late 2012 is set forth in the Court’s
memorandum order, filed November 6, 2012, denying class Plaintiff Hubert Michael’s motion
for a stay of execution, and the Court will not recount it here. (See Doc. No. 186.) Following
discovery, Defendants filed a motion for summary judgment on May 24, 2013. (Doc. No. 205.)
Briefing on the summary judgment motion was initially completed on September 5, 2013.
On November 18, 2013, with disposition of the motion pending, Plaintiffs filed a motion
to supplement and develop the record on summary judgment. (Doc. No. 226-2). They asked the
Court to re-open discovery for the limited purpose of uncovering further information regarding
the laboratory that analyzed the drugs to be used in conjunction with the scheduled execution of
Mr. Michael. (Id.) The Court granted the motion and gave Plaintiffs a period of time in which
to conduct limited discovery, and further granted each party the opportunity to file supplemental
briefing. On June 5, 2014, once Plaintiffs filed their supplemental discovery and the parties filed
their respective supplemental briefs, Defendants filed a motion to strike three documents the
Plaintiffs sought to introduce into the record. That motion is also before the Court.1

1

On September 11, 2014, a motion to intervene was filed by the Guardian News &
Media LLC, the Philadelphia Inquirer, the Pittsburgh Post-Gazette, and the Philadelphia City
Paper. (Doc. No. 251.) They sought to intervene for the sole purpose of challenging
confidentiality orders that had previously been entered in this case. On November 13, the Court
granted the motion, and ordered that the Intervenors motion to unseal be added to the docket.
(See Doc. Nos. 263, 264.) Full briefing on their motion to unseal is still pending.
2

B.

Material Facts2
1.

The execution process

At issue are Pennsylvania’s procedures for lethal injection, set forth principally in Capital
Case Administration Policy Number 6.5.8.3 (Doc. No. 206 ¶ 3.) The protocol requires that all
members of the lethal injection team “must be trained heath care professionals who have
completed intravenous therapy training and are experienced in performing venipuncture.” (Id. ¶
16.) There are currently three members of the lethal injection team, all of whom meet these
requirements. (Id. ¶ 17.) The lethal injection procedure is rehearsed at least three times per year,
with additional rehearsals whenever an execution is imminent. (Id. ¶¶ 18-19.)
The protocol calls for the injection of three drugs in order to effectuate execution of the
prisoner. (Doc. No. 206 ¶ 4.) The first drug injected into the prisoner will be either 5,000 mg of
pentobarbital or 3 gm sodium thiopental. (Id. ¶ 5.) Half of this first drug will be injected into
the left arm, and the other half will be injected into the right arm. (Id.) Once the first drug is
administered, the left IV line will be flushed with saline.4 (Id. ¶ 6.)
Once the first drug is administered, regardless of whether an electroencephalograph
(EEG) is used to monitor consciousness, steps are taken in order to confirm that the prisoner is
unconscious. (Doc. No. 206 ¶¶ 7-8.) The prisoner’s name is called in a loud voice and the
prisoner is observed for any reaction. (Id. ¶ 9.) Moreover, the procedure calls for tactile
2

These facts are undisputed, unless noted otherwise.

3

These current procedures were issued on August 27, 2012 and became effective the
following day.
4

Plaintiffs note a discrepancy in the procedure regarding this saline flush: the protocol
itself expressly calls for only a flush of the left IV, while an accompanying checklist calls for a
flush of the IV in both arms. (Doc. No. 219 ¶ 17.)
3

stimulation, such as brushing the prisoner’s eyelashes and shaking his shoulders to test his or her
responsiveness. (Id.) Both a lethal injection team member and a Department of Corrections
supervisory employee must monitor the prisoner’s consciousness, and both must agree that the
prisoner is unconscious before the second drug can be administered. (Id. ¶¶ 10-11.) If they do
not agree that the inmate is unconscious, an equal amount of the first drug is re-administered.
(Id. ¶ 12.)
Next, the second drug, pancuronium bromide, is injected by IV into the left arm in two 50
mg doses, and the IV is flushed with saline. (Doc. No. 206 ¶ 13.) Finally, the third drug,
potassium chloride, is injected into the prisoner’s left arm in two 50 meq doses, at which time
the lethal injection team will monitor for asystole, the absence of any electrical activity in the
prisoner’s heart. (Id. ¶ 14.) If asystole is not found within two minutes of injection of the
second dose, two addition 50 meq doses will be injected into the prisoner’s left arm. (Id. ¶ 15.)
2.

Source of the drugs

The protocol provides that when the DOC is unable to obtain the drugs necessary to carry
out an execution from pharmaceutical factories, it will arrange to get them from compounding
pharmacies. (Doc. No. 206 ¶ 20.) According to the DOC, it requires that the source of the
compounded drugs possess all necessary licenses and meet any other criteria required in the
jurisdiction where it is located. (Id. ¶ 22.) The DOC also maintains that it requires the source to
provide copies to the DOC of all current, relevant licensing documents. (Id. ¶ 22.) Plaintiffs
insist that whether this licensing requirement exists at all is a dispute of material fact, inasmuch
as the requirement is not present anywhere in the written protocol. (Doc. No. 219 ¶ 22.)
Moreover, the DOC states that it requires that drugs obtained from any compounding

4

vendor to be independently analyzed for composition, strength, and sterility prior to use. (Doc.
No. 206 ¶ 23.) Plaintiffs insist that whether such testing is in fact required is also a disputed fact,
as it, too, is not part of the DOC’s written protocol. (Doc. No. 219 ¶ 22.)
II.

LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is

warranted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is
material if it might affect the outcome of the suit under the applicable law, and it is genuine only
if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a
verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49
(1986). At summary judgment, the inquiry is whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it is so one-sided that one party must
prevail as a matter of law. Id. at 251-52. In making this determination, the Court must “consider
all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City
Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
The moving party has the initial burden of identifying evidence that it believes shows an
absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d
135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of
evidence to support the non-moving party’s claims, “the non-moving party must rebut the
motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal
memoranda, or oral argument.” Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.
2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails

5

to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden at trial,” summary judgment is warranted.
Celotex, 477 U.S. at 322. With respect to the sufficiency of the evidence that the non-moving
party must provide, a court should grant summary judgment when the non-movant’s evidence is
merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be
more than a scintilla of evidence supporting the non-moving party and more than some
metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Further, a party may not defeat a motion for
summary judgment with evidence that would not be admissible at trial. Pamintuan v. Nanticoke
Mem’l Hosp., 192 F.3d 378, 387 (3d Cir. 1999).
III.

DISCUSSION
The Court will first address Defendants’ motion to strike. The Court will then address

Defendants’ motion for summary judgment on Plaintiffs’ claim that Pennsylvania’s execution
protocol poses a risk of cruel and unusual punishment.
A.

Motion to strike

Defendants move to strike three of the documents Plaintiffs submitted with their
supplemental discovery: (1) the May 15, 2014 report of Dr. Andy Papas, (2) the May 15, 2014
Declaration of Dr. David Waisel, and (3) an article from the Washington Post.5 (Doc. Nos. 2401, 244.) First, Defendants assert that the reports of Papas and Waisel should be stricken as

5

Defendants argue that this Washington Post article, dated October 6, 2013, is
inadmissible hearsay. Plaintiffs respond that they included the article “only for the purpose of
providing background information,” and that they therefore do not oppose that aspect of
Defendants’ motion. (Doc. No. 245 at 2 n.1.) Accordingly, the Court will strike the article.
6

untimely, as the Court’s order gave the parties 45 days to conduct supplemental discovery,
meaning that discovery was to be completed by April 24, 2014; both documents are dated May
15, 2014. (Doc. No. 244.) Plaintiffs contend, however, that it understood the Court’s order to
provide an initial 45 days of discovery, in addition to a limited opportunity to supplement the
record with its own expert reports concerning evidence uncovered during the discovery process.
(Doc. No. 245.) As stated by Plaintiffs, “Plaintiffs’ right to supplement the record after
completing the additional limited factual discovery allowed by the Court would be of little
benefit to the Court if it did not include the right to provide expert opinion testimony based on
such additional facts.” (Id. at 8.)
The Court will not strike either document as untimely. The Court’s order provided in
part that:
1.

Plaintiffs have 45 days from the date of this order in which to conduct
limited supplemental discovery insofar as they seek more information on
the FDA investigation referenced in their motion. General discovery
regarding the testing laboratory will be denied as beyond the scope of the
Court’s order;

2.

Plaintiffs may supplement the record with information regarding the FDA
report.

(Doc. No. 234.) Both parties have different interpretations of the Court’s order re-opening
discovery, but the Court finds that Plaintiffs’ interpretation of the Court's order was reasonable.
As Plaintiffs point out, it follows that the substance of any proposed expert report would
necessarily be based on facts uncovered during the 45 days of extended fact discovery. The
Court further finds that, given that disposition of this motion has experienced a long delay in
order to give the parties an opportunity to procure this exact information, to strike these
supplements from the record now is an unduly harsh response to the parties’ dispute over the
7

proper interpretation of the Court’s order. Defendants also argue that this Court’s prior orders
set deadlines for the exchange of expert reports (Doc. Nos. 58, 62), deadlines that have long
since passed. (Doc. No. 247 at 3-4.) However, any such deadlines were effectively vacated by
the Court’s order allowing the parties to conduct additional discovery.

Defendants alternatively posit that the expert report of Dr. Papas should be stricken on
the grounds that Plaintiffs failed to disclose his identity as required by Rule 26 of the Federal
Rules of Civil Procedure. (Doc. No. 244 at 4-5.) Whether to exclude evidence in violation of
Rule 26 is a matter within the Court’s discretion. See Newman v. GHS Osteopathic, Inc.,
Parkview Hosp. Div., 60 F.3d 153, 156 (3d Cir. 1995). However, the Court will not strike his
report on these grounds. Although Plaintiffs give no explanation or justification for their failure
to identify Dr. Papas to Defendants, it does not appear to the Court that Plaintiffs are actually in
violation of any provision the Federal Rules of Civil Procedure, such as Rule 26(e)(2), setting
forth the duty of parties to supplement expert reports “in a timely manner,” (i.e., no later than
thirty days before trial6) or 26(a)(2)(D) which provides that must disclose expert witness “at least
90 days before the date set for trial.” Fed. R. Civ. P. 26(e)(2). Here, there is no trial date
scheduled. Although the Court is cognizant of the unusual sequence of events, and given that it
does not appear that Plaintiffs have violated any applicable rules of civil procedure, the Court
finds that the equities do not require that this Court strike Dr Papas’ report. Indeed, if
Defendants wished to file their own expert reports in response to Dr. Papas’, they could have
simply petitioned the Court to allow them to do so. However, they did not ask the Court for an

6

See Fed. R. Civ. P. 26(a)(3)(B), 26(e)(2).
8

opportunity to respond, they instead asked the Court to strike Plaintiffs’ submissions in their
entirety. The Court finds this is not justified under the circumstances. Therefore, the Court will
deny the motion to strike the reports of Drs. Papas and Waisel.7
B.

Motion for summary judgment

In moving for summary judgment, Defendants contend that the undisputed record
indicates that Pennsylvania’s practice of using compounded drugs does not pose an
unconstitutional risk of harm. (Doc. No. 209 at 17.) Defendants additionally argue that
Pennsylvania’s lethal injection protocol is substantially similar to the protocol in Baze v. Rees,
553 U.S. 35 (2008), and, therefore, is constitutional on its face. (Id.) Plaintiffs counter that the
protocol in Baze did not use compounded drugs, and therefore Pennsylvania’s protocol is not
substantially similar. (Doc. No. 218 at 15.) Plaintiffs further assert that there are disputed issues
of material fact regarding Pennsylvania’s use of compounded drugs and, as such, summary
judgment is inappropriate. (Id. at 15; Doc. No. 238-2.)
1.

Standard for method-of-execution challenges

As the parties recognize, the United States’ Supreme Court’s decision in Baze and the
United States Court of Appeals for the Third Circuit’s opinion in Jackson v. Danberg, 594 F.3d
210 (3d Cir. 2010), are the Court’s guideposts for an Eighth Amendment method-of-execution
challenge such as this one. In Baze, the United States Supreme Court was confronted with the
constitutionality of Kentucky’s three-drug lethal injection protocol. Kentucky’s protocol called

7

Most importantly, the Court has thoroughly considered Plaintiffs’ supplemental
arguments, and concludes, as will be discussed infra, that both expert reports concerning the
testing laboratory are immaterial to its resolution of the summary judgment motion. Defendants
therefore are not prejudiced by the inclusion of these documents in the record.
9

for an injection of sodium thiopental, followed by pancuronium bromide, and finally potassium
chloride, much like in Pennsylvania. Baze, 553 U.S. at 45. Plaintiffs’ argument in Baze rested
largely on concerns that, if the first drug was not properly administered the prisoner would
remain conscious and, therefore, would be exposed to suffocation and pain during the subsequent
injections. Id. at 49-50.
The Baze plurality upheld the constitutionality of Kentucky’s protocol. As an initial
matter, the plurality noted that it “has never invalidated a State's chosen procedure for carrying
out a sentence of death as the infliction of cruel and unusual punishment.” Id. at 48. The
plurality also made clear that “[t]o establish that such exposure violates the Eighth Amendment,
however, the conditions presenting the risk must be ‘sure or very likely to cause serious illness
and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” Id. at 49-50 (citing
Helling v. McKinney, 509 U.S. 25, 33, 34–35 (1993)). There also “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.
(quoting Farmer v. Brennan, 511 U.S. 825, 842, 846, and n. 9 (1994)). Along those lines,
“[s]imply because an execution method may result in pain, either by accident or as an
inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of
harm’ that qualifies as cruel and unusual.” Id. The Baze Court also rejected the plaintiffs’
argument that the existence of safer alternative methods would lessen the risk of harm, noting
that courts are not “boards of inquiry charged with determining ‘best practices’ for executions,”
and that a plaintiff “cannot successfully challenge a State's method of execution merely by
showing a slightly or marginally safer alternative.” Id. at 51.

10

In Jackson, the United States Court of Appeals for the Third Circuit addressed
Delaware’s lethal injection protocol, which included the three-drug protocol and was “in all
material respects identical to the protocol the Supreme Court found constitutional in Baze.”8
Jackson, 594 F.3d at 223-224. In Jackson, the Third Circuit adopted the standard applied by the
Baze plurality and affirmed the district court’s grant of summary judgment to defendants. Id.
The Third Circuit also emphasized that “the proper administration of [the first drug] is an
indispensable link in the lethal injection chain for Eighth Amendment purposes, as it ensures that
an inmate will not suffer under the effects of the second two drugs.” Id. at 226. Jackson clearly
set forth that “[t]o survive summary judgment under Baze, the Plaintiffs must point to record
evidence from which a reasonable fact finder could infer that Delaware's protocol does not meet
the standards governing the constitutionality of an execution protocol as articulated by Chief
Justice Roberts in the plurality opinion.” Id. at 223.
2.

Pennsylvania’s use of compounded drugs

Plaintiffs assert that Pennsylvania’s protocol is distinct from those found constitutional in
Baze and Jackson on one crucial point: those cases involved the use of regulated, FDA approved
drugs manufactured by pharmaceutical companies. (Doc. No. 218 at 20.) Pennsylvania’s
protocol, on the other hand, allows for the use of non-FDA approved compounded drugs. (Id. at
20.) Drug compounding is a process by which a pharmacy manufactures drug products pursuant
to an individual prescription from raw ingredients.

8

Following Jackson, Delaware revised its procedure to allow the use of pentobarbital as
the first drug rather than sodium thiopental. The plaintiffs challenged this revision, but the Third
Circuit affirmed the district court’s denial of plaintiffs’ motion to stay, holding that the district
court did not abuse its discretion in finding that pentobarbital is an effective anesthetic for use in
the three-drug protocol. Jackson v. Danberg, 656 F.3d 157, 166 (3d Cir. 2011).
11

The Court finds that, as an initial matter, Plaintiffs’ proffered evidence and argument that
there are dangers associated with drug compounding is not itself sufficient to defeat summary
judgment.9 While Plaintiffs present evidence in the form of its expert testimony that there is
some increased risk involved with the use of compounded drugs, in part because the industry is
lightly regulated, the mere possibility that something may go wrong is insufficient to carry
Plaintiffs’ burden, and the Court finds insufficient evidence in the record from which a
reasonable fact-finder could conclude that the risk is “objectively intolerable” and that the
practice is “sure or very likely to cause serious illness and needless suffering.” See Baze, 553
U.S. at 50 (“Simply because an execution method may result in pain, either by accident or as an
inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of
harm’ that qualifies as cruel and unusual.”); Valle v. Singer, 655 F.3d 1223, 1233 (11th Cir.
2011) (“[M]ere speculation cannot substitute for evidence that the use of pentobarbital will or
very likely will cause serious illness and needless suffering.”). As Baze and Jackson make clear,
the standard to succeed on a method-of-execution challenge is imposing. See Baze, 553 U.S. at
53 (noting that Eighth Amendment challenges to a state’s execution protocol face a “heavy
burden.”).
Plaintiffs and their experts propose that, in utilizing compounding drugs, there is a risk
the drugs are flawed and will cause pain upon injection, or will otherwise fail to render the
prisoner unconscious before the additional drugs are implemented. The Court agrees with

9

Although these cases do not specifically address drug compounding, “courts have
rejected claims that the absence of FDA approval of a drug for use in lethal injections means that
the drug is unsafe or suggests that it is sure or very likely to cause serious illness or needless
suffering.“ Valle v. Singer, 655 F.3d 1223, 1234 (11th Cir. 2011) (collecting cases).
12

Defendants that this argument is nearly identical to the one, rejected in Baze, that the risk of
maladministration of the execution protocol violates the Eighth Amendment. See Baze, 553 U.S.
at 62 (“The risks of maladministration [the plaintiffs] suggested – such as improper mixing of
chemicals and improper setting of IVs by trained and experienced personnel – cannot remotely
be characterized as ‘objectively intolerable.’”); see also Emmett v. Johnson, 511 F.Supp.2d 634,
644 (E.D. Va. 2007) aff'd, 532 F.3d 291 (4th Cir. 2008) (“To support an Eighth Amendment
claim, Plaintiff must go further than merely demonstrating risks. He must show a substantial risk
that is reasonably foreseeable.”) (emphasis added). Moreover, as the Court will address later in
this memorandum, there are a number of safeguards in place under the DOC’s procedure that
serve to mitigate the compounding risks identified by Plaintiffs.
Plaintiff cites a case from the Superior Court of Fulton County, Georgia, Hill v. Owens,
No. 2013-CV-233771 (Supr. Ct. Fulton Cty., July 18, 2013) in support of their opposition to
summary judgment. (Doc. Nos. 218 at 21-22, 218-1.) Hill, like the present case, contained a
challenge related to the use of compounded drugs in lethal injections, and that court granted a
stay of execution because “neither the Plaintiff, nor the general public, has sufficient information
with which to measure the safety of the drug that would be used to execute Plaintiff.” (Doc. No.
218-1.) However, at least one Court of Appeals disagrees with Hill and found that the
speculative risks posed by the unknowns related to drug compounding do not pose irreparable
harm in violation of the Eighth Amendment. See Whitaker v. Livingston, 732 F.3d 465, 468 (5th
Cir. 2013) cert. denied, 134 S. Ct. 417 (U.S. 2013). Ultimately, the Court finds the reasoning in
Whitaker more in line with Baze’s admonition that the speculative possibility of pain is
insufficient to carry an Eighth Amendment claim, and the Court declines to place much weight

13

upon the opinion in Hill. See Baze, 553 U.S. at 50. As the Court stated in its memorandum and
order denying class Plaintiff Hubert Michael’s stay of execution, Plaintiffs’ “challenge related to
the quality of the [compounded] pentobarbital amounts to little more than an argument about the
best practices in execution,” and while use of an FDA-approved drug may be ideal, “federal
courts are not ‘boards of inquiry charged with determining best practices for executions.’” (See
Doc. No. 186 at 14-15 (citing Baze, 553 U.S. at 51).)
3.

Additional safeguards in Pennsylvania’s protocol

As stated above, the Court finds that no reasonable fact-finder could conclude that
Pennsylvania’s practice of drug compounding alone creates an objectively intolerable risk of
harm in violation of the Eighth Amendment. However, to the extent that the Plaintiffs have
established that risks do exist, these risks are considerably mitigated by the other safeguards in
place; specifically, testing requirements, licensing requirements, and a mandated consciousness
check after injection of the first drug, all of which support the protocol’s constitutionality despite
the degree of risk Plaintiffs attribute to the drug compounding process. See Baze, 553 U.S. at 50
(“Kentucky's decision to adhere to its protocol despite [its] risks, while adopting safeguards to
protect against them, cannot be viewed as probative of the wanton infliction of pain under the
Eighth Amendment.”) (emphasis added). Regarding these safeguards, Plaintiffs contend that the
Court cannot conclude at the summary judgment stage that any testing and licensing safeguards
are in place because there are disputed issues of material fact as to whether Pennsylvania
actually has such requirements. (Doc. No. 218 at 19-22.) Specifically, Plaintiffs assert that as
the licensing and testing requirements are not included in the written protocol, the existence of
these purported requirements are credibility determinations that cannot be resolved at summary

14

judgment. (Id.)
The Court disagrees with Plaintiffs, and finds that the existence of the testing and
licencing safeguards is not genuinely in dispute for purposes of the present summary judgment
motion. In response to Plaintiffs’ fifth set of interrogatories, Defendants stated (1) “[t]he DOC
requires that its vendor have the lethal injection drugs independently analyzed for composition,
strength and sterility prior to their use;” and (2) “[t]he DOC requires that the source of
compounded pentobarbital currently possess all necessary licenses and meet any other criteria
that may be required by the jurisdiction in which it is located in order to provide professional
services as a compounding pharmacy. The source is required to furnish copies of current,
relevant licensing documents to the DOC.” (Doc. No. 218-2 at 94.) Neither of these are listed
in the written execution protocol.
Plaintiffs’ attempt to paint this as a credibility determination that requires fact-finding at
trial is unavailing. First, the Courts have rejected Plaintiffs’ argument that execution protocols
must always be in writing. See, e.g., Thorson v. Epps, 701 F.3d 444, 448-49 (5th Cir. 2012) cert.
denied, 134 S. Ct. 53 (U.S. 2013) (awarding summary judgment to Defendants and rejecting
Plaintiffs’ speculative argument that Mississippi’s “failure to dictate every execution detail in
writing could cause a constitutional problem”); Cooey v. Strickland, 610 F. Supp.2d 853, 927
(S.D. Ohio 2009) (“That Ohio significantly supplements its written procedures with the State's
unwritten protocol does not offend the Constitution.”). Second, Rule 56 of the Federal Rules of
Civil Procedure expressly provides that answers to interrogatories may be used as a factual basis
in support of a summary judgment motion. Fed. R. Civ. P. 56(c).
There is no evidence in the record that disputes Defendants’ interrogatories. For

15

example, in response to Plaintiffs’ discovery requests, Defendants provided Plaintiffs with
copies of the licensing documents provided by the compounding pharmacy that produced the
drugs for the scheduled execution of Hubert Michael. (See Doc. No. 219 ¶ 22.) Defendants also
produced test results indicating that they had sent the drugs to an independent laboratory for
testing. (Id.; Doc. No. 218-2 at 92-101.) Moreover, that Defendants replaced the drugs that
initially failed the Rapid Scan RDI test (see Doc. No. 218-2 at 93) reinforces their assertion that
the testing requirement is in place, and the record does not support a contrary finding.10
Although Plaintiffs call the existence of the aforementioned safeguards “bald assertions,” the
Court disagrees; they are sworn interrogatories supported by the factual record before the Court,
and, in the absence of record evidence to the contrary, are not facts genuinely in dispute. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Thus, despite Plaintiffs’
argument to the contrary, the Court finds that it has been established for purposes of Defendants’
summary judgment motion that Pennsylvania utilizes licensing and testing safeguards, both of
which mitigate Plaintiffs’ concerns regarding the compounding process.
There is another undisputed safeguard in place in the written protocol to ensure the first

10

Although Plaintiffs suggest that the DOC failed to address the issue of drugs’ sterility
(see Doc. No. 218 at 13-15), the record indicates that Defendants in fact received assurances that
the drugs passed certain sterility guidelines. (See id.) Specifically, the Defendants revealed
during discovery that a Rapid Scan RDI test was performed on the drugs, that this test “is more
stringent than the USP 797 sterility testing guidelines,” and that the independent laboratory
informed the DOC that samples would have passed USP 797 sterility guidelines. (Doc. No. 2182 at 93-94.) Plaintiffs do not appear to dispute that where compounded drugs meet USP
standards, they are safe. (Doc. No. 219 at 5.) Thus, although Plaintiffs now – as the Court will
discuss later in this memorandum – dispute the reliability of this testing, crucially, there remains
no genuine dispute in the record as to whether DOC utilizes independent testing. As the Court
will also discuss later in this memorandum, any possible error attributable to the testing
laboratory does not preclude summary judgment for Defendants.
16

drug has been properly administered before moving on to the second. Jackson noted that “[t]he
proper administration of [the first drug] is an indispensable link in the lethal injection chain for
Eighth Amendment purposes, as it ensures that an inmate will not suffer under the effects of the
second two drugs.” Jackson, 594 F.3d at 225. The Court finds that the undisputed written
protocol addresses this concern by having a standard “consciousness check” before the delivery
of the final two drugs. The District Court in Jackson v. Danberg, whose order denying a stay of
execution was affirmed by the Third Circuit in Jackson, noted the importance of a similar step in
defraying Eighth Amendment concerns relating to the three-drug protocol. No. 06-300-SLR,
2011 WL 3205453, at *3 (D. Del. July 27, 2011). In light of this additional layer of protection,
there is no basis in the undisputed record to support Plaintiffs’ assertion – reiterated by Dr.
Waisel in his supplemental declaration – that compounding drugs create a substantial risk of
harm upon implementation of the second drug, by potentially failing to render the prisoner
unconscious. (See Doc. No. 238-2 (quoting supplemental declaration of Dr. Waisel).)
Lastly, the Court must address Plaintiffs’ new evidence concerning the laboratory that
tested the drugs in conjunction with the scheduled execution of Hubert Michael in 2012. As
discussed earlier, on November 6, 2012, the Court denied class Plaintiff Hubert Michael’s
motion for a stay of execution. (See Doc. No. 186.) In conjunction with that motion,
Defendants produced evidence that the pentobarbital prepared for Mr. Michael’s execution had a
potency of 96.6%, evidence which is part of the record in this case. (Id.) All of the drug testing
in conjunction with the 2012 scheduled execution was performed by the same independent
laboratory. (See Doc. No. 240 at 5.)
The Court allowed for an additional period of discovery after Plaintiffs indicated that

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they ucovered information regarding an FDA investigation – which occurred subsequent to the
close of discovery in this case – into the entity responsible for testing the drugs at issue, which
may have revealed certain deficiencies in the laboratory’s procedures. (See Doc. Nos. 233-234.)
Having conducted their supplemental discovery, Plaintiffs now also contend that there is “a
factual dispute as to the reliability of the [2012] laboratory reports.” (Doc. No. 238-2.) Plaintiffs
have supplemented the record with an expert report from Dr. Andy Papas, setting forth his belief
that the FDA’s findings cast doubt on the accuracy and reliability of the 2012 testing results.
(See Doc. No 238-2 at 8-10 (citing Dr. Papas’ report).) A supplemental declaration from Dr.
David Waisel concurs. See id. at 13 (quoting supplemental declaration of Dr. Waisel).)
However, the Court finds the Defendants are entitled to summary judgment regardless of
the outcome of any dispute concerning the reliability of the independent laboratory’s 2012 drug
testing. Even if Plaintiffs have established that the independent laboratory’s 2012 testing of the
drugs was unreliable, “Baze left no room for doubt that a single instance of mistake does not
suffice to demonstrate a substantial risk of serious harm.” Cooey v. Strickland, 589 F.3d 210,
224 (6th Cir. 2009) (“Speculations, or even proof, of medical negligence in the past or in the
future are not sufficient to render a facially constitutionally sound protocol unconstitutional.”).
See Jackson v. Danberg, 594 F.3d 210, 226-27 (3d Cir. 2010) (rejecting the plaintiffs’ argument
that evidence of Delaware’s historical noncompliance with its execution protocol – “isolated
examples of maladministration” – created a disputed issue of material fact that should preclude
summary judgment). The Court has already found that Pennsylvania’s protocol and safeguards,
such as the requirement that drugs are tested by an independent laboratory and that there be a
mandatory consciousness check after injection of the first drug, are constitutional on their face.

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Thus, Plaintiffs’ proffered evidence – that drugs may have once been improperly tested by an
independent laboratory in conjunction with the scheduled execution of Hubert Michael – is an
example of a single instance of a mistake does not suffice to demonstrate a substantial risk of
harm, and does not defeat Defendants’ summary judgment motion. See Baze, 553 U.S. at 62-63.

IV.

CONCLUSION
Pennsylvania’s execution protocol utilizes compounded drugs, and although Plaintiffs

have identified risks associated with that source, the risk identified by Plaintiffs’ evidence – as
evaluated in the context of the safeguards provided by the Commonwealth’s execution protocol –
does not establish that Pennsylvania’s protocol is sure or very likely to cause serious illness and
needless suffering in violation of the Eighth Amendment. As the Court finds that no reasonable
fact-finder could conclude that Pennsylvania’s three-drug lethal injection protocol is “sure or
very likely to cause serious illness and needless suffering,” – and no genuine disputes of material
fact precluding that determination – it will grant summary judgment for Defendants, and enter
judgment for Defendants on the claims brought in Plaintiffs’ complaint.11 An order consistent

11

Although the Court is granting summary judgment for Defendants on the merits of
Plaintiffs’ claims, the Court can not yet close the case because the issue of the Intervenors’
motion to unseal is still pending, a motion that is yet to be fully briefed by the parties.
Nevertheless, the Court will enter final judgment for Defendants and against Plaintiffs on the
claims raised in Plaintiffs’ complaint. Federal Rule of Civil Procedure 54(b) provides that
“when an action presents more than one claim for relief--whether as a claim, counterclaim,
crossclaim, or third-party claim--or when multiple parties are involved, the court may direct
entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay. . .” Fed. R. Civ. P. 54(b).
The Intervenors’ pending motion – seeking to challenge confidentiality orders entered
previously in this action – is entirely collateral to the Court’s order on the merits of Plaintiffs’
constitutional claims, and the Court finds no just reason to delay entering final judgment in favor
of Defendants and against Plaintiffs on the claims raised in the Plaintiffs’ complaint. See Elliott
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with this memorandum follows.

v. Archdiocese of New York, 682 F.3d 213 (3d Cir. 2012). Accordingly, only the merits of the
Intervenors’ motion to unseal remains pending before the Court in this action.

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