The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
IN RE: OHIO EXECUTION : Case No. 2:11-cv-1016
PROTOCOL LITIGATION
Chief Judge Edmund A. Sargus, Jr.
: Magistrate Judge Michael R. Merz
This document relates to:
Plaintiff Cleveland Jackson :
DECISION AND ORDER GRANTING MOTION IN LIMINE TO
EXCLUDE EXPERT REPORT AND TESTIMONY OF STEVE YUN
This case is before the Court on Plaintiff Cleveland Jackson’s Motion in Limine to Exclude
Testimony of Steve C. Yun, M.D. (“Yun Motion,” ECF No. 2321). Defendants have filed a
Response in opposition (ECF No. 2344). For the reasons set forth below, the Yun Motion is
GRANTED.
QUALIFICATIONS AND OPINIONS
Dr. Yun has been a Board-certified anesthesiologist since 2001, has been in private practice
as an anesthesiologist since 2000, and is an active physician at Saddleback Memorial Medical
Center (Yun Report, ECF No. 22961, PageID 111807), although most of his work is in the field of
1 Dr. Yun originally filed his report on July 24, 2019 (ECF No. 2288); however, he refiled a corrected report the next
day to include all materials considered (ECF No. 2296).
pediatric dentistry (https://www.dentalanesthesiamd.com/, last accessed Aug. 14, 2019). Dr. Yun
states that, through his work, he has administered midazolam “tens of thousands of times[,]” and
he has testified as an expert in a case “related to the use of midazolam for lethal injection in
Florida.” (Yun Report, ECF No. 2296, PageID 111807, 111809, citing State of Florida v. Correll,
Orange County (Fla.) No. CR85-3550 (2015)). He has been a clinical professor at the Western
University School of Medicine since 2015, and a lecturer at the Loma Linda School of Dentistry
since 2017. Id. at PageID 111818. While Dr. Yun has conducted several clinical trials, his
curriculum vitae lists only one peer-reviewed publication: “Practice Guidelines for Adult Sedation
and Analgesia,” a co-authored book chapter appearing in SHOBHA MALVIYA, M.D., NORAH N.
NAUGHTON M.D., KEVIN K. TREMPER M.D., PH.D., EDS., SEDATION AND ANALGESIA FOR
DIAGNOSTIC AND THERAPEUTIC PROCEDURES (1st ed. 2003). Id. at PageID 111819-20,
Dr. Yun disagrees with the Court’s findings that midazolam “cannot reduce consciousness
to the level at which a condemned inmate will not experience the severe pain” of the second and
third drugs, or of the pulmonary edema from midazolam, and “that it is the acidic state of injected
midazolam that causes pulmonary edema[.]” (Yun Report, ECF No. 2296, PageID 111808). As
to the first finding, he reiterates the undisputed point that midazolam can be used as the sole
medication for a variety of procedures (e.g., insertion of an endotracheal tube), and as the sole
induction agent for anesthesia. Id. at PageID 110810-11. He claims that midazolam’s induction
of amnesia and a deep hypnotic state within 30-60 seconds of injection means that an inmate will
not experience pain from the paralytic or the potassium chloride. Id. at PageID 111811-12.
Further, he avers, without citation, that execution team members will be able, “using medically
appropriate methods, to determine whether the condemned inmate has been rendered sufficiently
sedated as to be unaware of any pain produced by administration of the paralytic drug and the
potassium chloride.” Id. at PageID 111812.
Dr. Yun states that Jackson’s argument “that the acidic nature of midazolam cause[s]
pulmonary edema is illogical.” (Yun Report, ECF No. 2292 PageID 111813). If, as Jackson’s
expert Mark A. Edgar, M.D., hypothesizes, it is the acidic nature that “causes venous irritation and
damage to the pulmonary vasculature[,]” then it “should also cause painful, venous irritation in an
awake person when it is first injected into the vein.” Yet, none of the eyewitness reports cited by
Dr. Edgar or Matthew C. Exline, M.D., another of Jackson’s experts, reflects any such irritation.
Id. Nor do any of the autopsy reports show “venous extravasation [or] infiltration at IV site[,]”
which one would expect if the acidic nature of the midazolam was damaging the pulmonary
vasculature. “In actuality,” he opines, “any acidic component of the midazolam would rapidly be
buffered by the person’s blood as it mixes with venous blood in the right chambers of the heart.”
Id.
Finally, Dr. Yun disagrees with Jackson’s argument that the movements described by
eyewitnesses -- “lurching, straining, heavy breathing, gasping, coughing, etc.[,]” -- are caused by
the inmates responding to painful stimuli or pulmonary edema, as these can occur even when an
individual is resting pain-free after receiving midazolam (Yun Report, ECF No. 2296, PageID
111814). He claims that these movements can happen just as easily when an inmate has been
administered opioids, such as propofol, and “are not sufficient proof of consciousness or a
purposeful response to pain.” Id. Dr. Yun also claims that midazolam is so potent at the dosage
used in the execution that, by itself it can induce fatal levels of unconsciousness or respiratory
depression, but, in that process, also elevates carbon dioxide levels in the blood. Those elevated
levels may, in turn, cause some of the described movements. Id. at PageID 111812, 111814.
LEGAL STANDARDS
Federal Rule of Evidence 702 sets forth the requirements for the admissibility of expert
testimony as follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine
a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
The wording of the rule reflects the now-standard inquiry set out in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993), which is the basis on which the Court must analyze the expert
testimony offered in this case.2 See, e.g., Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 250 n.4
(6th Cir. 2001). Under Rule 702, as interpreted in Daubert, the trial judge must exercise a
“gatekeeping” function and “ensure that any and all scientific testimony or evidence admitted is
not only relevant, but reliable.” Id. at 589. “[I]n order to qualify as ‘scientific knowledge,’ an
inference or assertion must be derived by the scientific method.” Id. at 590. In a case involving
scientific evidence, evidentiary reliability will be based on scientific validity. Id. at n.9. Factors
bearing on whether reasoning is scientifically valid include: can the theory or technique be tested;
2 Although the language of Rule 702 has been changed since Daubert, “[t]hese changes are intended to be stylistic
only. There is no intent to change any result in any ruling on evidence admissibility.” Fed.R.Evid. 702 Cmte. Note
on Rules (2011).
has it been subjected to peer review and publication, what is the known or potential rate of error,
has it been generally accepted? Id. at 593-594 (citations omitted). The United States Court of
Appeals for the Sixth Circuit requires a trial judge to take a hard look at scientific evidence. Turpin
v. Merrell Dow Pharms., Inc., 959 F.2d 1349, 1352 (6th Cir. 1992) (cited favorably in Daubert,
509 U.S. at 596). Expert testimony based on scientific research done solely for litigation that is
neither subjected to peer review nor published in scientific journals and is not accompanied by
showing of methodology on which it is based is not admissible under Rule 702. Johnson v.
Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434-35 (6th Cir. 2007), citing Daubert v. Merrell
Dow Pharms, Inc., 43 F.3d 1311, 1317-18 (9th Cir. 1995) (on remand from the Supreme Court).
Therefore, we review this case under Daubert, which set forth a non-exclusive checklist of
factors for trial courts to use in assessing the reliability of proffered scientific expert testimony.
These include 1) whether the expert’s scientific technique or theory can be, or has been, tested; 2)
whether the technique or theory has been subject to peer review and publication; 3) the known or
potential rate of error of the technique or theory when applied; 4) the existence and maintenance
of standards and controls; and 5) whether the technique or theory has been generally accepted in
the scientific community. Daubert, 509 U.S. at 592-95; Hardyman v. Norfolk & W. Ry., 243 F.3d
255, 260 (6th Cir. 2001). If the evidence is deemed to be reliable and relevant, the judge must then
determine if the probative value of the evidence is outweighed by its prejudicial effect. Daubert,
509 U.S. at 595, citing Fed.R.Evid. 403.
Analysis
A. Dr. Yun’s opinions are belied by his limited, contradictory scholarly research
Unlike many of the experts produced by both sides in this litigation who have spent their
careers in academia and whose opinions are supported by decades of their own research and
scholarly publications, Dr. Yun has spent most of his career in private practice, and has not
published any scholarly articles, aside from the aforementioned co-authored book chapter from
2003. This lack of research and publication of his conclusions in any scholarly journal gives rise
to serious doubts about whether his reasoning is scientifically valid. Daubert, 509 U.S. at 593-94.
Moreover, as Jackson points out, the book chapter that Yun co-authored states “unequivocally that
‘Benzodiazepines produce anxiolysis and amnesia, not analgesia[,]’” and that “‘Benzodiazepines
alone rarely cause apnea.’” (Yun Motion, ECF No. 2321, PageID 113118 (citation omitted)).3
Both of these statements are contrary to the statements included in his expert report, in which he
states that 500 mg of midazolam would render a person unable to perceive the pain from the
paralytic and potassium chloride, the second and third drugs, respectively, in Ohio’s execution
protocol, and that overdoses of midazolam can cause fatal apnea episodes (Yun Report, ECF No.
2296, PageID 111811). Nowhere in his report does Dr. Yun attempt to explain these facial
contradictions, or why his changed positions are correct. That Dr. Yun’s prior positions were
published in a medical textbook, whereas his current positions were not subject to peer review and
editing, and were prepared only in preparation to this litigation, weighs heavily against finding the
3 While neither Defendants nor Jackson attaches as an exhibit the book chapter, Defendants, in the memorandum
contra, do not dispute the accuracy of Jackson’s quotations from it.
opinions set forth in the Yun Report reliable.
B. Dr. Yun’s current opinions are belied by the best evidence proffered by the parties
Dr. Yun cites to RONALD D. MILLER, ET AL., MILLER’S ANESTHESIA (8th ed. 2015)—
which Defendants’ expert Joseph M. Antognini, M.D. conceded, in his expert report offered
against Warren Henness—is “the most accepted textbook in the field” (ECF No. 1983, PageID
88448), for the undisputed proposition that “[m]idazolam has been used for the induction of
anesthesia” (Yun Report, ECF No. 2296, PageID 111810, citing Miller’s Anesthesia, ECF No.
2296-5, PageID 111881). Yet, on the same page relied upon by Yun, the authors continue:
“Benzodiazepines lack analgesic properties and must be used with other anesthetic drugs to
provide sufficient analgesia; however, as maintenance anesthetic drugs during general anesthesia,
benzodiazepines provide hypnosis and amnesia.” (Miller’s Anesthesia, ECF No. 2296-5, PageID
111881 (emphasis added)). This statement, from the leading treatise in the field of anesthesia, is
consistent with Dr. Yun’s previously published statement that “[b]enzodiazepines produce
anxiolysis and amnesia, not analgesia” (Yun Motion, ECF No. 2321, PageID 113118). The
statement in Miller’s Anesthesia is inconsistent with Dr. Yun’s statement that an inmate given 500
mg of midazolam will not experience pain from injection of the paralytic and potassium chloride
(Yun Report, ECF No. 2296, PageID 111812).
Dr. Yun’s other citations to outside sources are scant, largely irrelevant, and provide no
support for the positions in his Report. He cites two sources for the propositions that midazolam
may be used as the sole agent for induction of general anesthesia, and that “there is typically no
awareness or recall of a painful stimulus such as intubation or surgery[.]” (Yun Report, ECF No.
2296, PageID 111810-11, citing Jeevan Singh, Midazolam as an induction agent in comparison
with propofol as a safe and effective alternative, 34:1 J. OF INST. OF MED. 25 (Apr. 2012); M.E.
Crawford, et al., A randomized comparison between midazolam and thiopental for elective
cesarean section anesthesia, 68 ANESTHESIA ANALGESIA 229-33 (1989)). The former
proposition, as discussed above, is undisputed; the latter proposition appears to deal with
midazolam’s amnestic properties, which are not at issue. In support of his argument that “toxic
doses of midazolam can produce profound respiratory depression and elevated carbon dioxide
levels in the blood[,]” he cites two journal articles, both of which predate the development of
midazolam by more than twenty years. Id. at PageID 111814, citing E. Keith Westlake and Kaye
M. Simpson, Respiratory Failure and Carbon Dioxide Narcosis, 34 POSTGRAD MED. J. 2-6 (Jan.
1958; Herbert O. Sieker and John B. Hickam, Carbon Dioxide Intoxication: The clinical
syndrome, its etiology and management with particular reference to the use of mechanical
respirators, 35(4) MED. 389-423 (Dec. 1956)). In addition to the authors’ being unable to opine
on whether respiratory depression can be caused by midazolam—because it did not yet exist—Dr.
Yun’s conclusion about respiratory depression is seemingly contradicted by his statement in his
book chapter that “[b]enzodiazepines alone rarely cause apnea.” (Yun Motion, ECF No. 2321,
PageID 113118). Dr. Yun does not explain this facial contradiction; nor does he attempt to explain
the supposed impact of elevated carbon dioxide levels on an inmate’s ability to feel pain.
Defendants claim that Jackson’s argument is “that Dr. Yun’s opinions are not reliable
because he relies on the studies of others rather than his own research or that they are nearly the
same as other of the Defendants’ experts.” (Memo. in Opp., ECF No. 2344, PageID 114346). Not
so. Rather, there is no indication that Dr. Yun relied on any study or research—either his own or
that of others—in reaching his conclusions. In sum, Dr. Yun’s citations to peer-reviewed sources
are either belied by the very sources he quotes, pertain to arguments immaterial to this litigation,
or are bereft of any context that would allow the Court to discern how the sources support the
vague, otherwise-unsubstantiated conclusions. The sources do nothing to change the fact that the
opinions set forth in his report are directly contradicted by the scientific consensus regarding
midazolam’s inability to produce analgesia or maintain anesthesia. See In re Ohio Execution
Protocol Litig. (Henness), No. 2:11-cv-1016, 2019 WL 244488, at *62-65 (S.D. Ohio Jan. 14,
2019) (Merz, Mag. J.) (After hearing evidence from Henness and Defendants’ experts, finding
Henness’s experts4 more credible and finding that “that it is certain or very likely that a 500 mg
[intravenously]-injected dose of midazolam cannot reduce consciousness to the level at which a
condemned inmate will not experience the severe pain associated with injection of the paralytic
drug or potassium chloride . . . ”). For these reasons, Dr. Yun’s Report fails the requirements of
Rule 702 and Daubert.
C. Dr. Yun’s current opinions are conclusory and derivative of those offered by Dr.
Antognini
The entire substance of Dr. Yun’s opinions is contained in eleven sub-paragraphs in the
Report. Sub-paragraphs 9.a, 9.b., and 9.k are unreliable for the reasons set forth supra. Sub-
paragraphs 9.c through 9.h and 9.j (Yun Report, ECF No. 2296, PageID 111811-12, 111814) are
bald, conclusory statements, and Dr. Yun includes no citations to scientific publications or
experiment results to support the statements. These statements lack any of the indicia of reliability
4 Mark A. Edgar, M.D.; Matthew C. Exline, M.D.; David J. Greenblatt, M.D.; Daniel Lubarsky, M.D.; and Craig
Stevens, Ph.D., all of whom have offered reports in support of Jackson, and/or whose prior reports and testimony are
going to be admitted into evidence by this Court (ECF Nos. 2160, 2257, 2258, 2260, 2331, 2333, 2334).
required under Fed.R.Evid. 702 and Daubert, and consequently, should not be considered by the
Court. In sub-paragraph 9.i, he states that he “reviewed the data cited in plaintiff’s expert reports
related to autopsies performed on inmates who were executed with lethal injection[,]” and terms
the position of Dr. Edgar that midazolam causes pulmonary edema “illogical.” (Yun Report, ECF
No. 2296, PageID 111813). Yet, Dr. Yun does not explain why he is qualified to draw that
conclusion from Dr. Edgar’s reports, as he does not appear to have training as a pathologist.
Moreover, the only source he cites in support of that conclusion is what purports to be a direct
quotation from Dr. Antognini.5 Id. at PageID 111813-14. Dr. Antognini has submitted four expert
reports in this case (ECF Nos. 852-1 (addendum at ECF No. 887-1), 1310-1, 1983, 2291), and
testified in this Court as recently as December 2018 (Henness Hrg. Tr., ECF No. 2120); needless
to say, the Court is very familiar with Dr. Antognini’s opinions on midazolam.
Defendants argue that “[o]ne would expect each side of this issue to have similar opinions
among each of its experts[,]” and the fact that Dr. Yun’s opinions are in concert with those of Dr.
Antognini does not render them cumulative any more than Jackson’s experts expressing largely
the same opinions regarding midazolam’s supposed properties, effects, and limitations (Memo. in
Opp., ECF No. 2344, PageID 114346). Yet, contrary to their argument, the issue is not that Drs.
Yun and Antognini agree as to the supposed effects and limitations of midazolam; it is that Dr.
Yun’s opinion is derivative of that of Dr. Antognini. In other words, but for Dr. Antognini’s
opinion, Dr. Yun’s opinion that midazolam does not cause pulmonary edema would be baseless.
Thus, even if Dr. Yun’s recitation of Dr. Antognini’s opinion would not be excludable under Rule
702, it would be properly excluded as “wasting time[ and] needlessly presenting cumulative
evidence.” Fed.R.Evid. 403.
5 Dr. Yun does not state the document, much less the PageID, from which the quotation came.
D. Defendants’ remaining arguments are immaterial and unavailing
Defendants note correctly that “[i]t has long been the rule in [the United States Court of
Appeals for] the Sixth Circuit that ‘Rule 702 should be broadly interpreted on the basis of whether
the use of expert testimony will assist the trier of fact[,]’” (Memo. in Opp., ECF No. 2344, PageID
114347, quoting Davis v. Combustion Eng’g, Inc., 742 F.2d 916, 919 (6th Cir. 1984)), and that this
Court would abuse its discretion in excluding Dr. Yun because it “does not deem [him] be the best
qualified or because the proposed expert does not have the specialization the court considers most
appropriate.” Id., quoting Burgett v. Troy-Bilt LLC, 579 F. App’x 372, 380 (6th Cir. 2014). The
Court passes no judgment on Dr. Yun’s experience and expertise as a Board-certified
anesthesiologist and in using midazolam in clinical doses thousands of times in his career. Rather,
his opinions offered are rarely more than bald conclusions, with scant citations to other sources,
and in some places, contradicted by his own studies. His opinion would in no way assist the Court
in making factual findings regarding whether midazolam will render an inmate incapable of feeling
the pain caused by the second and third drugs in the State of Ohio’s execution protocol, or
independently causes pulmonary edema. Accordingly, by the Sixth Circuit’s own precedent,
excluding Dr. Yun is proper.
Defendants note that in Glossip v. Gross, the Supreme Court upheld the denial of the
plaintiff’s Daubert motion to exclude Roswell Evans, Pharm.D., “reiterat[ing] the District Court’s
conclusion that Dr. Evans, the Dean of Auburn University’s School of Pharmacy, ‘was well
qualified to testify about midazolam’s properties and that he offered reliable testimony.’” (Memo.
in Opp., ECF No. 2344, PageID 114347-48, quoting Glossip, 135 S.Ct. 2726, 2736 (2015)). The
district court’s decision not to exclude Dean Evans’s testimony was reviewed under an abuse of
discretion standard; without more, it is not reasonable to infer that the Supreme Court would have
reached the same conclusion on de novo review. Moreover, the very language in Glossip quoted
by Defendants undermines their argument. While Dr. Yun avers that he is “familiar with the
administration and properties of the drug midazolam,” (Yun Report, ECF No. 2296, PageID
111807), his explanations of midazolam’s properties (induction of anesthesia, production of
hypnosis and amnesia) are at turns unsupported, cumulative, or immaterial to the issues being
litigated. Finally, for the reasons discussed above, Dr. Yun’s Report lacks the indicia of reliability
that the Court, in exercising its gatekeeper function, must be sure are present prior to considering
his Report and allowing his testimony.
CONCLUSION
For the foregoing reasons, Jackson’s Motion to Exclude the Testimony of Defendants’
Expert Witness Dr. Steve C. Yun (ECF No. 2321) is GRANTED. Dr. Yun may not testify at the
anticipated evidentiary hearing on Jackson’s motion for preliminary injunction, and his Expert
Report (ECF No. 2296) will not be considered by the Court in adjudicating Jackson’s motion.
August 15, 2019.
s/ Michael R. Merz
United States Magistrate Judge