Arthur v. Commissioner, Alabama Department of Corrections

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-15549

Non-Argument Calendar

________________________

D.C. Docket No. 2:11-cv-00438-WKW-TFM

THOMAS D. ARTHUR,

Plaintiff-Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,

WARDEN,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

________________________

(November 2, 2016)

Before HULL, MARCUS and WILSON, Circuit Judges.

HULL, Circuit Judge:

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It has been 34 years since Thomas Arthur brutally murdered Troy Wicker.

During 1982 to 1992, Thomas Arthur was thrice tried, convicted, and sentenced to

death for Wicker’s murder. After his third death sentence in 1992, Arthur for the

next 24 years has pursued, unsuccessfully, dozens of direct and post-conviction

appeals in both state and federal courts.

In addition, starting nine years ago in 2007 and on three separate occasions,

Arthur has filed civil lawsuits under 42 U.S.C. § 1983 challenging the drug

protocol to be used in his execution. This is Arthur’s third such § 1983 case, and

this current § 1983 case was filed in 2011. For the last five years Arthur has

pursued this § 1983 case with the benefit of lengthy discovery. The district court

held a two-day trial and entered two comprehensive orders denying Arthur § 1983

relief. Those orders are the focus of the instant appeal.

After thorough review, we conclude substantial evidence supported the

district court’s fact findings and, thus, Arthur has shown no clear error in them.

Further, Arthur has shown no error in the district court’s conclusions of law, inter

alia, that: (1) Arthur failed to carry his burden to show compounded pentobarbital

is a feasible, readily implemented, and available drug to the Alabama Department

of Corrections (“ADOC”) for use in executions; (2) Alabama’s consciousness

assessment protocol does not violate the Eighth Amendment or the Equal

Protection Clause; and (3) Arthur’s belated firing-squad claim lacks merit.

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I. CONVICTION AND APPEALS

The Alabama Supreme Court summarized the facts underlying Arthur’s

criminal conviction as follows:

More than 20 years ago, Arthur’s relationship with his common-law

wife ultimately led to his brutally murdering a relative of the woman.

Arthur shot the victim in the right eye with a pistol, causing nearly

instant death. He was convicted in a 1977 trial and was sentenced to

life imprisonment.

While on work release during the life sentence, Arthur had an affair

with a woman that ultimately led to his brutally murdering that

woman’s husband, Troy Wicker, in 1982. Arthur shot Wicker in the

right eye with a pistol, causing nearly instant death.

Ex parte Arthur, 711 So. 2d 1097, 1098 (Ala. 1997).

In 1982, Arthur was convicted and sentenced to death for Wicker’s murder,

but the Alabama Supreme Court reversed that conviction in 1985. Arthur v. King,

500 F.3d 1335, 1337 (11th Cir. 2007). In 1987, Arthur was again convicted and

sentenced to death, but that conviction was overturned by Alabama’s Court of

Criminal Appeals in 1990. Id. After his third trial in 1991, Arthur was again

convicted of Wicker’s murder and sentenced to death in 1992. Id. This time, his

conviction and sentence were affirmed. Id. He did not file a petition for writ of

certiorari with the United States Supreme Court. Id. at 1337-38.

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At his third sentencing proceeding, Arthur asked for a death sentence, stating

that a capital sentence would provide him better prison accommodations, more

access to the law library, more time to devote to his appeal, and a more extensive

appeals process. Arthur v. Thomas, 739 F.3d 611, 614 (11th Cir. 2014). Arthur

told the jury that he did not believe he would be executed. Id. Arthur’s murder of

Wicker was a capital offense under Alabama law because Arthur had been

convicted of another murder in the 20 years preceding his second murder. See Ala.

Code § 13A-5-40(a)(13) (1975); Arthur v. State, 71 So. 3d 733, 735 (Ala. Crim.

App. 2010).

In 2001, after exhausting his state court remedies, Arthur filed a federal

habeas corpus petition pursuant to 28 U.S.C. § 2254. Arthur v. Allen, 452 F.3d

1234, 1238, 1240-43 (11th Cir.), modified on reh’g, 459 F.3d 1310 (11th Cir.

2006). The district court dismissed the § 2254 petition as untimely, but granted a

certificate of appealability as to Arthur’s claims of actual innocence, statutory

tolling, and equitable tolling. Id. at 1243. In 2006, this Court affirmed the

dismissal of Arthur’s § 2254 petition, concluding that Arthur had not shown actual

innocence or entitlement to statutory or equitable tolling. Id. at 1253-54.1 The

1

In May 2012, Arthur filed a motion pursuant to Rule 60(b)(6) of the Federal Rules of Civil

Procedure, seeking relief from the district court’s order dismissing his § 2254 petition as

untimely. Arthur, 739 F.3d at 626-27. The district court denied Arthur’s motion, and this Court

affirmed. Id. at 627, 633.

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Supreme Court denied Arthur’s petition for writ of certiorari. Arthur v. Allen, 549

U.S. 1338, 127 S. Ct. 2033 (Mem.) (2007).

With this background, we turn to Arthur’s current § 1983 case, challenging

Alabama’s use of midazolam in its lethal injection protocol. To place Arthur’s

current § 1983 claim in context, we review the history of lethal injection in

Alabama and how Alabama has had to change the drugs used due to unavailability.

For years, Arthur challenged the use of sodium thiopental and then pentobarbital.

But now that the ADOC has not been able to procure sodium thiopental or

pentobarbital and has had to switch to midazolam, Arthur is currently challenging

midazolam and now asks to go back to sodium thiopental or pentobarbital as his

preferred alternatives. We thus review in great detail how this case got here today.

II. HISTORY OF LETHAL INJECTION IN ALABAMA

When Arthur was sentenced to death, Alabama executed inmates by

electrocution. See McNair v. Allen, 515 F.3d 1168, 1171 (11th Cir. 2008). On

July 1, 2002, the Alabama legislature adopted lethal injection as the state’s

preferred form of execution. Id. The legislature allowed inmates already under a

sentence of death a 30-day window to choose electrocution as their method of

execution, after which time they would be deemed to have waived the right to

request a method other than lethal injection. Ala. Code § 15-18-82.1(b).

Alabama’s method-of-execution statute further provides that:

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If electrocution or lethal injection is held to be unconstitutional by the

Alabama Supreme Court under the Constitution of Alabama of 1901,

or held to be unconstitutional by the United States Supreme Court

under the United States Constitution, or if the United States Supreme

Court declines to review any judgment holding a method of execution

to be unconstitutional under the United States Constitution made by

the Alabama Supreme Court or the United States Court of Appeals

that has jurisdiction over Alabama, all persons sentenced to death for

a capital crime shall be executed by any constitutional method of

execution.

Id. § 15-18-82.1(c). The Alabama statute does not prescribe any particular

method of lethal injection; the legislature left it to the ADOC to devise the policies

and procedures governing lethal injection executions, and exempted the ADOC

from the Alabama Administrative Procedure Act in exercising that authority. Id.

§ 15-18-82.1(g).

The ADOC has used a three-drug lethal injection protocol since it began

performing executions by lethal injection in 2002. See Brooks v. Warden, 810

F.3d 812, 823 (11th Cir.), cert. denied sub nom. Brooks v. Dunn, 136 S. Ct. 979

(2016). Each drug in a three-drug protocol is intended to serve a specific purpose.

The first drug should render the inmate unconscious to “ensure[] that the prisoner

does not experience any pain associated with the paralysis and cardiac arrest

caused by the second and third drugs”; the second drug is a paralytic agent that

“inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops

respiration”; and the third drug “interferes with the electrical signals that stimulate

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the contractions of the heart, inducing cardiac arrest.” Baze v. Rees, 553 U.S. 35,

44, 128 S. Ct. 1520, 1527 (2008) (plurality opinion).

The third drug in the ADOC protocol has always been potassium chloride,

and the second drug has always been a paralytic agent—either pancuronium

bromide or rocuronium bromide. Brooks, 810 F.3d at 823. However, the ADOC

has changed the first drug in its protocol twice. Id. From 2002 until April 2011, it

used sodium thiopental as the first drug in the three-drug sequence. Id. But a

national shortage of sodium thiopental forced states, including Alabama, to seek a

replacement for sodium thiopental as the first drug in the series. See Glossip v.

Gross, 576 U.S. __, __, 135 S. Ct. 2726, 2733 (2015) (explaining that the sole

domestic manufacturer of sodium thiopental ceased production of the drug in 2009

and exited the market entirely in 2011).

From April 2011 until September 10, 2014, Alabama used pentobarbital as

the first drug. Brooks, 810 F.3d at 823. As the Supreme Court has noted,

“[b]efore long, however, pentobarbital also became unavailable.” Glossip, 135 S.

Ct. at 2733. Arthur has acknowledged that Alabama’s supply of commercially

manufactured pentobarbital expired on or around November 2013. From

September 11, 2014, until the present, Alabama has used midazolam as the first

drug in the series. Brooks, 810 F.3d at 823.

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Currently, Alabama’s lethal injection protocol calls for the administration of:

(1) a 500-mg dose of midazolam, (2) followed by a 600-mg dose of rocuronium

bromide, and (3) finally, 240 milliequivalents of potassium chloride. This lethal

injection protocol involves the same drugs, administered in the same sequence, as

the protocol at issue in Glossip. 135 S. Ct. at 2734-35.

III. 2011: COMPLAINT ABOUT PENTOBARBITAL

Arthur’s execution date is currently set for November 3, 2016. This is the

sixth time that Alabama has scheduled his execution,2 and this case is Arthur’s

third § 1983 challenge to lethal injection as the method of his execution.3

In May 2007, shortly after the State filed a motion to set an execution date,

Arthur filed a § 1983 action challenging Alabama’s lethal injection protocol which

in 2007 included sodium thiopental as the first drug. (CM/ECF for the U.S. Dist.

Ct. for the S.D. Ala., case no. 1:07-cv-342, doc. 1 at 1-2, 6; doc. 15 at 11). The

district court dismissed that complaint based on laches, and this Court affirmed.

(Id., docs. 19, 20, 27, 28). In October 2007, Arthur filed a second challenge to

2

Alabama previously scheduled Arthur’s execution for (1) April 27, 2001; (2) September 27,

2007, which was reprieved by the governor until December 6, 2007; (3) July 31, 2008; (4) March

29, 2012; and (5) February 19, 2015.

3

Arthur has, in fact, filed five § 1983 cases in total. In addition to his three method-of-execution

challenges, he has also brought claims under § 1983 seeking (1) access to physical evidence for

DNA testing in a bid to uncover exonerating evidence; and (2) an injunction barring a post-

mortem autopsy of his body. (CM/ECF for the U.S. Dist. Ct. for the S.D. Ala., case no. 1:08-cv-

441, docs. 1, 11, 12); (CM/ECF for the U.S. Dist. Ct. for the M.D. Ala., case no. 2:07-cv-319,

docs. 1, 14,15).

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Alabama’s lethal injection protocol, which the district court again dismissed for

unreasonable delay, and this Court affirmed. (CM/ECF for the S.D. Ala., case no.

1:07-cv-722, docs. 1, 22, 23, 28, 29).

In April 2011, Alabama switched from using sodium thiopental to

pentobarbital as the first drug in its lethal injection protocol. Brooks, 810 F.3d at

823. On June 8, 2011, Arthur filed another § 1983 complaint in federal district

court, challenging Alabama’s new lethal injection protocol, especially its use of

pentobarbital as the first drug.

As amended, Arthur’s complaint raised three § 1983 claims: (1) the ADOC’s

use of pentobarbital as the first drug in its three-drug lethal injection protocol

violated the Eighth Amendment’s prohibition on cruel and unusual punishment;

(2) the ADOC’s secrecy in adopting and revising its lethal injection protocol

violated the Fourteenth Amendment’s Due Process Clause; and (3) the ADOC had

materially deviated from its lethal injection protocol by failing to conduct a

“consciousness assessment” during an earlier execution, thereby violating the

Fourteenth Amendment’s Equal Protection Clause. Arthur also alleged that

Alabama’s lethal injection statute violated the state constitution.

The district court dismissed Arthur’s Eighth Amendment and Due Process

claims on statute-of-limitations grounds and his Equal Protection claim for failing

to state a claim upon which relief could be granted. Arthur v. Thomas, 674 F.3d

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1257, 1259 (11th Cir. 2012). Because Alabama began its lethal injection protocol

in 2002, the district court determined that Arthur’s 2011 complaint challenging it

was banned by the two-year statute of limitations applicable to § 1983 claims. Id.

Arthur appealed. Id.

This Court reversed the district court’s dismissal as to only Arthur’s Eighth

Amendment and Equal Protection claims. Id. at 1262, 1263. As to the Eighth

Amendment claim, this Court concluded that Arthur’s allegations and his filed

affidavits created factual issues as to whether Alabama’s new lethal injection drugs

and procedures constituted such a significant change in the lethal injection protocol

as to warrant a new limitations period and some factual development, including

discovery. Id. at 1260-62.

As to the Equal Protection claim, this Court held that Arthur had “alleged

enough facts to constitute a plausible Equal Protection claim because he alleges

that Alabama has substantially deviated from its execution protocol” by failing to

perform the pinch test as part of the required consciousness assessment. Id. at

1263. Accepting Arthur’s particular allegations as true at the early Rule 12(b)(6)

stage, this Court remanded for further factual development. Id.

In the years after this Court’s 2012 remand, the parties conducted extensive

discovery. Before the final hearing on Arthur’s § 1983 challenge to pentobarbital,

the State was no longer able to procure pentobarbital. In September 2014, the

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State changed its lethal injection protocol to substitute midazolam hydrochloride

for pentobarbital as the first drug, and rocuronium bromide for pancuronium

bromide as the second drug in its three-drug cocktail.

IV. 2015: SECOND AMENDED COMPLAINT ABOUT MIDAZOLAM

On January 7, 2015, after receiving leave from the district court to amend his

2011 complaint, Arthur filed a complaint (the “Second Amended Complaint”),

raising two claims. Arthur raised an Eighth Amendment claim, alleging that the

ADOC’s use of midazolam as the first drug “creates a substantial risk of serious

harm because . . . there is a high likelihood that midazolam will fail to render [him]

insensate from the excruciatingly painful and agonizing effects of the second and

third drugs.”

Despite challenging pentobarbital for more than three years, Arthur now

suggested that he would prefer for the State to use a one-drug protocol of

compounded pentobarbital in his execution instead of midazolam. Arthur’s

Second Amended Complaint recycled his earlier argument about pentobarbital,

which was that it would cause him to suffer a drop in blood pressure and then a

heart attack. Arthur now made the same claim about midazolam, alleging that he

had “clinically significant obstructive coronary disease” and that the State’s use of

midazolam created a substantial risk that he would suffer a painful heart attack

before losing consciousness.

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Arthur’s Second Amended Complaint also raised an Equal Protection claim,

alleging that the ADOC had “materially deviated from their written execution

protocol, impermissibly burdening Mr. Arthur’s right to be free from cruel and

unusual punishment.” Arthur claimed that Alabama employs a lethal injection

protocol that requires a “consciousness assessment” after the first drug is injected.

This consciousness assessment has three parts: (1) calling the inmate’s name,

(2) gently stroking his eyelash, and (3) pinching his arm.

Arthur’s Second Amended Complaint alleged that during “numerous

executions,” including the 2011 execution of Eddie Powell, witnesses did not

observe the pinch test being performed. Arthur also alleged that the ADOC failed

to adequately train its personnel in how to perform properly the consciousness

assessment. He claimed that there existed a “significant risk that Defendants will

deviate from their protocol in [his] execution,” thus burdening his rights under the

Fourteenth Amendment.

In March 2015, the district court elected to stay Arthur’s § 1983 case

challenging midazolam until after the U.S. Supreme Court issued its decision in

Glossip v. Gross.4

4

The Alabama Supreme Court had set Arthur’s execution date for February 19, 2015. On

February 13, 2015, six days before his then-scheduled execution, Arthur sought a stay of

execution. On February 17, the district court granted a stay “pending a trial and final decision on

the merits.” Defendants appealed, but this Court dismissed the appeal, finding that there was no

abuse of discretion. With the issuance of the district court’s July 19, 2016 final judgment in

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V. JUNE 2015: GLOSSIP IS DECIDED

On June 29, 2015, the Supreme Court decided Glossip, holding that, in order

to challenge successfully a method of execution, a plaintiff must plead and prove:

(1) that the proposed execution method presents a risk that is “‘sure or very likely

to cause serious illness and needless suffering,’ and give rise to ‘sufficiently

imminent dangers,’” and (2) that there is “an alternative [method of execution] that

is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial

risk of severe pain.’” 135 S. Ct. at 2737 (quoting Baze, 553 U.S. at 50, 52, 128 S.

Ct. at 1530-31, 1532) (alteration in original).

After Glossip, the district court subsequently lifted its stay of proceedings in

this case, and the parties conducted some additional discovery.

On August 25, 2015, Arthur sought leave to file a third amended complaint,

seeking (1) to switch back to compounded pentobarbital as an alternative method

of execution, (2) to suggest sodium thiopental and a firing squad as additional

alternative methods, and (3) to include additional allegations that midazolam was

constitutionally inadequate. The district court granted Arthur leave to amend his

complaint except as to the firing squad as an alternative method of execution. The

district court concluded, inter alia, that “execution by firing squad is not permitted

favor of the State, that district court stay is no longer in effect. Accordingly, Alabama has now

set an execution date for November 3, 2016.

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by [Alabama] statute and, therefore, is not a method of execution that could be

considered either feasible or readily implemented by Alabama at this time.” The

district court set trial to begin on January 12, 2016.

VI. OCT. 2015: THIRD AMENDED COMPLAINT

On October 13, 2015, Arthur filed his Third Amended Complaint, alleging

substantially identical claims to those raised in his Second Amended Complaint

and requesting single-drug protocols of compounded pentobarbital or sodium

thiopental as alleged feasible alternative methods of execution. The ADOC filed

(1) a “Motion to Dismiss and, In the Alternative, Motion for Summary Judgment,”

arguing that Arthur’s Eighth Amendment claim was untimely, that both claims

should be dismissed for failure to state a claim, and that there was no genuine issue

of material fact regarding whether compounded pentobarbital or sodium thiopental

are known and available alternatives; and (2) a “Motion for Summary Judgment of

Arthur’s Eighth Amendment Claim,” arguing again that compounded pentobarbital

and sodium thiopental are not known and available alternatives and, further, that

Arthur failed to present any evidence showing how compounded pentobarbital

could be administered to prevent a painful heart attack.5 The ADOC’s motions

included arguments regarding its present inability to obtain either pentobarbital or

sodium thiopental.

5

The district court carried these motions into the trial and resolved them as moot in light of its

April 15, 2016 order.

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On January 7, 2016, the district court issued an order limiting the issues at

trial to: (1) Arthur’s Equal Protection claim, and (2) the availability of alternative

methods of execution. The district court wrote that, if Arthur met his burden to

prove an alternative method of execution that is feasible and readily available, the

court would schedule a second phase of trial to address other issues, such as

whether the use of midazolam “presents a risk that is sure or very likely to cause

serious illness and needless suffering, and give rise to sufficiently imminent

dangers.”

The district court held a two-day bench trial on January 12 and 13, 2016.

VII. TRIAL EVIDENCE ABOUT ALTERNATIVE DRUGS

A. Arthur’s Evidence

As noted above, although for four years Arthur had challenged pentobarbital

as the first drug, one of his requested alternatives is now a single drug of

compounded pentobarbital. Arthur called Dr. Gaylen M. Zentner to testify about

compounded pentobarbital.6

Dr. Zentner obtained a Ph.D. in pharmaceutics and was a licensed

pharmacist in Utah for 40 years. After obtaining his Ph.D., Dr. Zentner taught

pharmacy at the University of Connecticut, including teaching in the compounding

6

Dr. Zentner’s November 16, 2015, declaration and his December 3, 2015, deposition—which

reflect opinions and testimony essentially identical to the testimony he offered at the January

2016 trial—were admitted into evidence and considered by the district court.

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lab. He worked for 13 years for a large pharmaceutical company in their

“advanced drug delivery dosage form design unit.” He was later in charge of “all

formulation and dosage form design” at another large pharmaceutical company.

He had held two adjunct professorships in pharmacy. Since 2012, Dr. Zentner had

worked as an “independent consultant” to the pharmaceutical industry. He

testified that he had hands-on experience with manufacturing drugs and he had

personally compounded drugs, although he had no experience preparing

compounded pentobarbital sodium. The district court accepted Dr. Zentner as an

expert witness in the fields of pharmaceutical chemistry, manufacturing, and

compounding.

Dr. Zentner testified that, in his opinion, “the talent, expertise, and facilities

to perform sterile compounding” existed within Alabama and that “all ingredients

required to formulate a compounded preparation of pentobarbital sodium” were

“readily available.”

Dr. Zentner explained that, in its pure form, pentobarbital sodium was a

white powder, which could be compounded with other ingredients to form an

injectable solution. He described pentobarbital as a “long-known and well-

established drug product” that was “available to the medical sciences for decades.”

He stated that Nembutal, the trade name for an industrially manufactured version

of injectable pentobarbital sodium, was available for sale in the United States. He

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said that pentobarbital sodium for injection was listed in the FDA’s Orange Book,

which listed all “approved drugs” in the United States. The Orange Book stated

that there were no active patents on this drug, meaning that anyone was permitted

to make it.

Dr. Zentner described the process of compounding a solution of

pentobarbital sodium, calling it “a very simple matter” and a “straightforward

process.” During his testimony, Dr. Zentner relied on a 2015 article from the

Journal of Pharmacological and Toxicological Methods that described the

preparation of an injectable pentobarbital sodium solution by laboratory scientists

that was essentially identical to the commercial product and was stable for one

year.

Dr. Zentner contended that there were “numerous sources” for both the

active and inactive ingredients needed to compound pentobarbital, including

professional drug sourcing services. He said that these ingredients were available

for sale in the United States and could be found through an Internet search. For

example, Dr. Zentner found pentobarbital sodium listed on a drug manufacturer’s

product listing, which listing indicated that the drug was produced in the United

States. He stated that other manufacturers might offer it for sale or the drug could

be synthesized in a lab. He said that he knew of one lab that would be willing to

synthesize the drug and he suspected “all of them would be willing.”

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Dr. Zentner stated that he conducted an Internet search of sterile

compounding pharmacies in Alabama from the listing available on the

Accreditation Commission for Health Care’s Web site, and found 19 such

pharmacies, although two were essentially the same company. Dr. Zentner gave

his list to the ADOC. Dr. Zentner contacted two of these pharmacies, and they

said that they did perform sterile compounding. Dr. Zentner admitted that he did

not ask them whether they would be willing to compound pentobarbital for use in

an execution by the ADOC. In his deposition, Dr. Zentner clarified that he did not

ask these two pharmacies any questions whatsoever regarding compounded

pentobarbital.

Accordingly, Dr. Zentner could only give his opinion that (1) pentobarbital

sodium is available for purchase in the United States, and (2) there are

compounding pharmacies that “have the skills and licenses to perform sterile

compounding of pentobarbital sodium.”

On cross-examination, Dr. Zentner admitted that he had not contacted any

drug companies at all about their willingness to sell pentobarbital to the ADOC for

executions. He also admitted that he was unaware that the company that currently

owned Nembutal had restrictions in place to keep that drug from being purchased

for use in lethal injections. Dr. Zentner admitted that he had no knowledge of

whether the pharmacies that he found would be able to procure pentobarbital, nor

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did he ever personally attempt to purchase the drug from a manufacturer. He

stated that one drug synthesis company that he has a “long-term relationship” with

was “willing to discuss” producing compounded pentobarbital. Dr. Zentner

admitted that sodium thiopental is not listed in the FDA Orange Book, meaning it

is not an approved product in the United States, although he stated that it is

“available offshore and conceivably could be imported.”

B. ADOC’s Evidence

Anne Adams Hill, 7 ADOC’s general counsel, testified on behalf of the

agency. Hill explained that, as part of her job, she was “routinely” in contact with

other states’ departments of corrections and that the subject of pentobarbital and

lethal injection came up in her conversations. Her job required her to constantly

look for ways to procure new drugs and new sources for drugs.

Hill was aware that, in 2015, Georgia, Missouri, Texas, and Virginia

executed inmates using a single-drug protocol of compounded pentobarbital. Hill

testified that she contacted representatives from the departments of corrections in

these four states in the fall of 2015 in an effort to obtain compounded

pentobarbital. With respect to these four states she recalled asking “specifically if

they had compounded pentobarbital and, if they did, if they would be willing to

7

Arthur’s counsel deposed Hill three times in this case. Hill also executed an affidavit, offering

substantially the same testimony she provided at trial.

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provide it to the [ADOC] and, if not, if they would provide us their source.” All

four refused.

Hill stated that she was not aware of whether these four states had exclusive

contracts with their drug sources, but that all four had refused to name those

sources.

Hill reiterated her deposition testimony that, in between September 2014 and

November 2015, she had contacted 11 potential sources of pentobarbital, including

those 4 states and 7 pharmacies within Alabama. She asked these pharmacies

whether they would be willing to compound pentobarbital and provide it to the

ADOC, and they all said no.

Hill also testified that, in December 2015, she reached out to all of the 18

pharmacies on Dr. Zentner’s list 8 regarding their willingness and/or capability to

compound pentobarbital for the ADOC’s use. None of the pharmacies agreed to

provide the drug to ADOC, with two saying they were incapable of obtaining the

ingredients, another claiming that it no longer did compounding, yet another saying

it only produced one drug, and the remainder stating that “they’re not able to

compound pentobarbital.” In total, Hill testified that she reached out to “at least

29” potential sources in an attempt to procure compounded pentobarbital for the

ADOC.

8

Although Dr. Zentner’s list included 19 pharmacies, two of the pharmacies were simply two

locations of the same entity.

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Hill admitted that she did not contact drug manufacturers, buying groups, or

drug synthesis labs in an effort to find pentobarbital, nor did she conduct any

Internet searches to obtain the drug.

Hill also testified that she had made no effort since September 2014 to

obtain sodium thiopental and made no efforts to determine whether it could be

imported. Hill said that she did not think sodium thiopental was available in the

United States, and she was not aware of any other state that had access to sodium

thiopental.

VIII. TRIAL EVIDENCE ABOUT CONSCIOUSNESS ASSESSMENT

Since October 2007, the ADOC’s written execution protocol has included a

three-step consciousness assessment, to be performed after the administration of

the first drug, but before administration of the second and third drugs. The purpose

of this assessment is to ensure that the inmate has been rendered unconscious by

the first drug. The assessment has three parts: (1) calling the inmate’s name;

(2) fluttering the inmate’s eyelash; and (3) pinching the inmate’s arm.

A. Arthur’s Evidence on the Consciousness Assessment

Arthur presented four witnesses who attended prior executions at Holman

Correctional Facility, where Arthur is housed. These witnesses included three

attorneys who worked for the Federal Defenders Office for the Middle District of

Alabama and the videotaped deposition of Don Blocker, a volunteer lay minister at

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Holman. To varying degrees, they all testified that they did not see prison staff

perform the pinch test at these executions.9 All four witnessed the executions from

the viewing room reserved for the inmate’s family, and they had a clear view of the

inmate’s left side.

Two of the attorneys, however, admitted that their view of the inmate was

obstructed when a correctional officer stepped up to the gurney to perform the

consciousness assessment. All three attorneys admitted that, at the time of the

executions they saw, they were unaware that there was even a consciousness

assessment that was supposed to be performed. Similarly, Blocker acknowledged

three times on cross-examination that it was “possible” that he did not see parts of

the consciousness assessment that were performed.

At trial, Arthur also presented Dr. Alan David Kaye, who holds a medical

degree and a Ph.D. in pharmacology. 10 He completed a residency in anesthesia

and was currently employed as the chairman of the anesthesia department at

Louisiana State University (“LSU”). He is the director of anesthesia services at

LSU’s “flagship” hospital, has authored articles and books, and maintains an active

9

Two of the attorneys testified about the execution of Eddie Powell in 2011, and the other

attorney testified about the execution of Michael Jeffrey Land in 2010. Blocker testified to the

executions of seven other inmates from 2009 until 2011.

10

Dr. Kaye’s November 16, 2015, declaration and his December 10, 2015, deposition—which

reflect opinions and testimony essentially identical to the testimony he offered at trial—were

admitted into evidence and considered by the district court.

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anesthesiology practice. The court accepted Dr. Kaye as an expert witness in the

field of anesthesiology.

Dr. Kaye explained that “sedation” is understood by people in his field as a

continuum. This can range from “mild sedation in which a person can easily

respond to verbal cues,” to moderate sedation, deep sedation, and, finally,

anesthesia, “the deepest level of the continuum.” In his opinion, Alabama’s

consciousness assessment “is inadequate to measure deep sedation or anesthesia.”

While Dr. Kaye has not witnessed any executions in Alabama, he opined that the

ADOC had not “adequately administered” the assessment that was in place. Dr.

Kaye gave four reasons for his opinion.

First, from reviewing the testimony of certain ADOC personnel, Dr. Kaye

opined that “it appears that the consciousness assessment may not have been

performed at all in a number of prior executions.” Second, statements given by

certain ADOC personnel gave the impression to Dr. Kaye that their training was

inadequate because they did not know how to properly perform the pinch test

and/or communicate the results of the assessment. Third, again based on the prior

testimony of certain ADOC officials, it was Dr. Kaye’s opinion that members of

Alabama’s execution team do not pinch inmates with sufficient force. Fourth, it

appeared to Dr. Kaye that members of the execution team did not adequately

communicate the results of the consciousness assessment.

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Dr. Kaye testified that, in anesthesiology medical practice, you have to

perform “the hardest pinch that you can pinch,” hard enough to bruise. Dr. Kaye

explained, “As firm and as hard as you can. Not in a mild way; not in a moderate

way. In a very significant way.” Dr. Kaye testified that the ADOC personnel’s

testimony—that (1) “We don’t inflict pain on people”; (2) “I pinch hard enough

that [a conscious person] would jerk their arm away from me”; and (3) “[I pinch]

hard enough to wake [the inmate] if he’s asleep”—are all inadequate to meet the

proper threshold and speaks to the lack of training and inadequacy of the

safeguard.

B. ADOC’s Evidence on the Consciousness Assessment

The ADOC presented the testimony, either live or through deposition

designations, of six current or former ADOC personnel, all of whom testified that

all parts of the consciousness assessment were performed at every execution that

they witnessed and/or participated in.

At trial, Hill, the ADOC’s general counsel, testified that she had attended

nine or ten executions since the implementation of the consciousness assessment

and observed all parts of the assessment being performed in all of those executions.

Hill stated that, in her role as the ADOC general counsel, she had never received

any information that the assessment was not performed.

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Hill testified that she viewed the executions from the commissioner’s

viewing room, which is positioned directly in front of each inmate’s feet as he lies

on the gurney, and that her view was not obstructed. Hill was present at Powell’s

execution, and she testified that all parts of the assessment were performed at

Powell’s execution. She said that the correct and complete performance of the

consciousness assessment is something she looks for in the executions that she

attends.

Hill stated that correctional officers are aware that the consciousness

assessment is a mandatory part of the execution protocol, and they are trained on

how to perform it. They are instructed to perform the pinch test on the back of the

inmate’s left arm and to “pinch hard.” Hill stated that correctional officers practice

performing the consciousness assessment before an execution. They are also

trained to look for “any reaction” from the inmate and to report any reaction.

The ADOC also presented the deposition testimony of: (1) G.C., Holman’s

warden from 2002 until 2009; (2) A.P., the Holman warden who succeeded G.C.;

(3) D.C., the former captain of Holman’s execution team; (4) W.H., the execution-

team captain who succeeded D.C.; and (5) C.S., the chaplain at Holman. The

wardens and captains testified that they were trained on the consciousness

protocol, knew it was mandatory, and understood its purpose and importance.

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The wardens both testified that they were present at executions and all parts

of the assessment, including the pinch test, were performed at every execution that

they witnessed. Similarly, the captains of the execution team testified that they

personally performed every aspect of the assessment, including the pinch test, at

every execution. The Holman chaplain testified that he has witnessed

approximately 40 executions at the prison since 1997. He witnessed the execution

of Eddie Powell, and remembered seeing the consciousness assessment performed.

G.C. testified that he was the warden when the consciousness assessment

was implemented and that ADOC representatives explained the assessment to him

and told him when it should be performed. He testified that a team consisting of

himself, D.C., Hill, and former ADOC Commissioner Kim Thomas all agreed that

inmates should be pinched on the back of the arm because it was “inconspicuous”

but “fairly sensitive.” G.C. testified that he sat in the control room with another

officer during executions and, on the warden’s command, that officer would

“radio[] to the correctional personnel that’s in the execution chamber that it’s time

to perform the consciousness test.” If there was any reaction from the inmate, the

procedure was for the officer in the execution chamber to radio back to the officer

in the control room, but if the officer performing the consciousness assessment

stepped away from the inmate, “that was [his] cue to proceed” with administration

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of the second and third drugs. G.C. testified that, during his tenure as warden, no

inmate ever reacted to administration of the first drug.

A.P. succeeded G.C. as warden and also testified that, once the officer

performing the consciousness assessment stepped away from the inmate, he knew

he could proceed with the execution.

D.C. was the captain of the execution team at Holman until his retirement in

2009 and was the captain when the consciousness assessment was introduced. It

was his practice to do all three steps of the assessment simultaneously. He testified

that, if the inmate showed any reaction to the consciousness assessment, he would

turn and face the warden. In performing the pinch test, D.C. would pinch hard

enough that, “if it was a conscious person, they would jerk their arm away from

me.” He never received any reaction in the nine or ten executions in which he

participated.

W.H. succeeded D.C. as the execution-team captain at Holman in 2009. As

captain, W.H. would pinch the inmate’s arm “hard enough to wake him if he’s

asleep.” W.H. testified that he received oral, written, and physical training

regarding the consciousness assessment from A.P., D.C., and another officer.

W.H. testified that A.P. instructed him to stay at his place by the gurney if the

inmate reacted. W.H. stated that no inmate ever reacted after he performed the

consciousness assessment.

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IX. DISTRICT COURT’S APRIL 15, 2016 ORDER

After setting out the factual background and procedural history of the case,

the district court proceeded, first, to consideration of Arthur’s Eighth Amendment

claim. The district court summarized the trial testimonies of Dr. Zentner and

ADOC attorney Hill on the issue of alternatives to midazolam–namely,

pentobarbital and sodium thiopental. The district court then made these findings of

fact, among others:

(1) The ADOC’s supply of commercially manufactured pentobarbital, Nembutal,

expired around November 2013, and the commercial supplier of Nembutal is

prohibited from providing it for use in executions. Thus, Nembutal is no longer

available to the ADOC.

(2) When a drug is no longer commercially available, but remains listed in the

FDA Orange Book, a licensed pharmacist may legally create the drug through

compounding or some other process.

(3) Pentobarbital sodium is the active ingredient in compounded pentobarbital, and

there is a formulation for compounding an injectable solution of pentobarbital

sodium.

(4) Georgia, Missouri, Texas, and Virginia have all performed executions using

compounded pentobarbital after Nembutal became unavailable.

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(5) The ADOC has attempted to obtain compounded pentobarbital for use in

executions from the departments of correction in all four of these states, but those

efforts were unsuccessful.

(6) The ADOC has contacted all of the accredited compounding pharmacies in

Alabama to ascertain whether any of these pharmacies would be willing and able

to provide compounded pentobarbital to the ADOC, but those efforts have been

unsuccessful.

(7) Thus, pentobarbital is not feasible and readily implemented as an execution

drug in Alabama, nor is it readily available to the ADOC, either compounded or

commercially.

(8) Per the FDA Orange Book, sodium thiopental is no longer legally available in

the United States, and there is no evidence that the FDA has approved the import

of sodium thiopental from other countries.

(9) Thus, sodium thiopental is unavailable to the ADOC for use in lethal

injections.

The district court then made these conclusions of law:

(1) Arthur has the burden to plead and prove a known and available alternative

method of execution under Glossip. It is Arthur’s burden to identify an alternative

method that is both feasible and readily implemented.

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(2) To meet his burden, Arthur proposed execution with a one-drug protocol of

either compounded pentobarbital or sodium thiopental.

(3) Dr. Zentner’s testimony that the active ingredient for pentobarbital is

“available for purchase” and that there are compounding pharmacies that could

“hypothetically” perform compounding did not meet Arthur’s burden “to prove

that compounded pentobarbital is readily available to the ADOC for use in lethal

injections. That it should, could, or may be falls far short of Arthur’s burden.”

(4) Further, Arthur’s proof that (i) other states have procured compounded

pentobarbital for use in their executions, (ii) “with effort it can be compounded,”

and (iii) “indications on the internet” are that pentobarbital is available for sale all

fail to meet Arthur’s burden to show that the drug was readily available to the

ADOC. “At best, it proves a ‘maybe.’”

(5) The fact that compounded pentobarbital was available to other states “at some

point over the past two years does not, without more, establish that it is available to

Alabama.”

(6) Although the ADOC did not have the burden of proof on this issue, Hill’s

testimony lent “further support for the finding that compounded pentobarbital is

not presently available to the ADOC.”

(7) Arthur also failed to carry his burden of showing that sodium thiopental was an

available alternative because sodium thiopental is not legally available in the

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United States and evidence of its possible availability overseas does not satisfy

Glossip.

(8) Therefore, “Arthur sufficiently pleaded an Eighth Amendment claim, but he

failed to meet his burden of proof. Defendants are entitled to judgment in their

favor on Arthur’s Eighth Amendment claim.” 11

The district court then proceeded to evaluate Arthur’s Equal Protection

claim, which is based on the consciousness assessment. After summarizing the

evidence on this claim, the district court made these findings of fact, among others:

(1) In October 2007, the ADOC adopted a consciousness assessment in order to

provide an “additional safeguard to lethal injection executions to ensure that an

inmate is unconscious” before the second and third drugs are administered.

(2) While there was conflicting testimony as to whether the ADOC performed the

pinch test at all executions after October 2007, the district court credited the

testimony of ADOC’s witnesses over that of Arthur’s witnesses. The district court

gave two reasons for these findings. First, Hill and the other ADOC witnesses are

all present or former ADOC employees who were knowledgeable about the

consciousness assessment and were trained “to understand how, why, and when it

is performed.” Second, it found Arthur’s witnesses, while “truthful from their

11

The district court rejected Arthur’s contention that the State had the burden to prove his

requested alternative of compounded pentobarbital was unavailable. But the district court also

found that the State in fact had proven its inability to obtain compounded pentobarbital.

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perspective,” to be “less direct and less probative” because (i) testimony that they

“didn’t see” something is less probative than testimony that it “didn’t happen”; and

(ii) Arthur’s witnesses had obstructed views of the execution and/or did not know

to look for the various steps of the consciousness assessment.

(3) Based on the evidence and these findings, the district court found that “the

evidence establishes that the pinch test was performed in all executions that the

ADOC has conducted after the ADOC adopted the consciousness assessment and

incorporated it as a mandatory part of the written execution protocol.” The district

court found that any contradictory evidence did not “overcome” the direct

testimony from current and former ADOC wardens and other personnel who said

“without equivocation that they performed the assessment.”

(4) Further, because the consciousness assessment had been performed in every

instance, the district court found that there was no deficiency in training, practice,

or procedure.

The district court then made these conclusions of law, among others:

(1) The evidence that Arthur presented was “insufficient to prove that that [sic] the

ADOC had inconsistently applied the protocol’s mandatory consciousness

assessment by failing to perform the pinch test during some executions, or has

otherwise deviated substantially from its execution protocol.”

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(2) Further, Arthur’s Equal Protection challenge “to the general adequacy of the

ADOC’s consciousness assessment, claiming that it should meet certain training

and medical standards but does not, also fails.” In support, the district court relied

on language from Baze and Glossip to hold that “[t]he Eighth Amendment does not

require that such medical training and standards or procedures be employed,”

noting that the Supreme Court held in Baze that a consciousness assessment “much

simpler than the one implemented by the ADOC” was not required under the

Eighth Amendment. Indeed, the district court wrote, there is no constitutional

requirement that a state perform a consciousness assessment at all.

(3) Accordingly, “Arthur’s attempt to apply a medical standard of care to

execution procedures and training for them, in this case, procedures that are not

required by the Eighth Amendment, does not state a plausible equal protection

claim. This principle is applicable to Arthur’s Equal Protection claim challenging

the ‘adequacy’ of the consciousness assessment and the training therefor, including

the force used in the pinch test.”

(4) For these reasons, the district court held that the ADOC was entitled to

judgment on the Equal Protection claim.

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After entering judgment in the ADOC’s favor, the only issue remaining

concerned the interplay of the current protocol with Arthur’s alleged idiosyncratic

health issues and medical condition, which the district court would address later.12

X. AS-APPLIED CLAIM

On May 6, 2016, as to Arthur’s as-applied claim based on his alleged health

issues, the ADOC filed a motion for judgment on the pleadings or, in the

alternative, for summary judgment. ADOC’s motion argued that, to the extent that

Arthur even adequately alleged an Eighth Amendment as-applied challenge based

on his health concerns, the Defendants were entitled to summary judgment because

(1) Arthur had failed to produce evidence of a genuine disputed fact that 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; (2) Arthur had still failed to

produce evidence of a genuine disputed fact that there are known and available

alternatives that are feasible, readily implemented, and significantly reduce a

substantial risk of severe pain; and (3) the district court should reject the “sham

affidavits” offered by Arthur in support.

The ADOC attached to its motion a November 16, 2015, declaration by Dr.

J. Russell Strader, Jr., Arthur’s witness, and a transcript of Dr. Strader’s December

12

On May 16, 2016, Arthur appealed the district court’s April 15, 2016, order to this Court. This

Court later granted Arthur’s motion to dismiss this appeal as premature, without prejudice to

Arthur’s refiling a timely notice of appeal upon entry of final judgment in the district court.

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8, 2015, deposition. Notably, Dr. Strader’s November 2015 declaration about

midazolam is his third declaration filed in this case. We first review Dr. Strader’s

two prior declarations about pentobarbital before addressing his declaration about

midazolam.

A. Dr. Strader’s 2013 and 2015 Declarations About Pentobarbital

In his first declaration back in March 2013, Dr. Strader criticized the use of

pentobarbital for Arthur’s execution. Although Arthur wants pentobarbital used

now that Alabama cannot obtain it and must use midazolam, it is relevant to

consider Arthur’s previous position about pentobarbital. Back in 2013, Dr. Strader

opined that (1) Arthur’s “likelihood of having clinically significant obstructive

coronary disease [“CAD”] is at least 70%”; (2) for people with CAD, the use of a

2,500-mg dose of pentobarbital was likely to induce a rapid and dangerous

reduction in blood pressure, thereby triggering a heart attack; (3) the heart attack

would occur more quickly than the appropriate sedation; and (4) “[g]iven the

slower onset of the sedative effects of pentobarbital, it is likely that [Arthur] would

experience the pain of said heart attack until such time as the sedative effects have

onset to a sufficient degree to diminish the pain of the heart attack.” (Emphasis

added). In short, Dr. Strader’s opinion about pentobarbital was that it would take a

longer duration of time to induce appropriate sedation than that required for the

onset of myocardial ischemia/infarction.

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In his March 2013 declaration about pentobarbital, Dr. Strader stated that he

was a board-certified cardiologist and the current Chief of Cardiovascular Services

at a Texas hospital. As part of his routine clinical practice, he assessed the

cardiovascular risk of patients scheduled to undergo surgery and anesthesia and, in

particular, he assessed the likelihood that a patient would suffer a heart attack

during or immediately after a cardiac procedure.

Dr. Strader’s declaration included explanations of the “Hemodynamic and

Anesthetic Actions of Pentobarbital and Thiopental,” along with an overview of

the relevant aspects of cardiovascular anatomy and physiology, coronary

atherosclerosis, and myocardial ischemia/infarction. His declaration included an

explanation that a coronary artery needs to be 70% obstructed before it is

hemodynamically significant. It also stated that, “[i]n clinical practice, myocardial

ischemia and infarction can occur due solely and exclusively to a drop in blood

pressure” and that this drop in blood pressure may be due to anesthesia.

Dr. Strader’s March 2013 declaration admitted that he had not examined

Arthur but had reviewed his medical records only up until 2009. Although Dr.

Strader’s declaration did not indicate precisely what records he reviewed,

approximately 68 pages worth of Arthur’s medical history was included with the

ADOC’s summary judgment motion. These medical records indicate that Arthur

has repeatedly refused to be seen by a doctor since at least 2009. Arthur was seen

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in the prison infirmary on January 17, 2009, where he complained of chest pain

and atrial fibrillation. Arthur, however, refused medical care on this occasion,

including a refusal to submit to an electrocardiogram (“EKG”) on January 20,

2009.

The medical records include dozens of similar waivers, signed by Arthur,

refusing various medical treatments. These waivers extend from 2009 until 2015.

There is no indication that Dr. Strader, as of his first declaration in 2013, had

access to or reviewed any probative post-2009 medical records for Arthur. There

is also no reference, much less a diagnosis, to Arthur’s ever having had a heart

attack in his medical records.

According to Dr. Strader’s review of Arthur’s medical records as of 2009,

Arthur was then 71 years old, with a history of hypertension (high blood pressure)

and atrial fibrillation (irregular heart rhythm). In June 1999, Arthur visited the

prison clinic and he complained of being short of breath, sweaty, and dizzy.

According to the prison report, an EKG was performed at that time, and it was

“abnormal.” Dr. Strader opined that these symptoms are “identical to those

experienced by persons with ongoing myocardial infarction.”

In October 2004, Arthur was hospitalized for abdominal surgery, and he

suffered from atrial fibrillation during that hospitalization. However, an

echocardiogram performed around that time came back “essentially normal.”

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According to Dr. Strader, an EKG dated January 15, 2009 showed “atrial

fibrillation with a rapid ventricular response, along with Q waves in the inferior

leads (leads II and aVF).” Dr. Strader opined that, “[t]he abnormalities on this

[EKG]” indicated that Arthur had suffered a prior heart attack. A request for a

cardiology consult, dated January 26, 2009, indicated that Arthur was experiencing

chest pain and rapid heart rate.

After reviewing these medical documents through January 2009, Dr. Strader

opined that:

Arthur’s abnormal [EKG] showing evidence of a prior myocardial

infarction,13 history of recurrent atrial fibrillation, age, presence of

hypertension, and symptoms of recurrent chest pain, all of which are

independent risk factors for coronary heart disease, confer a risk of

having clinically significant obstructive coronary artery disease of at

least 70% at a minimum, and possibly greater.

Dr. Strader opined that the use of pentobarbital would cause a drop in blood

pressure and a heart attack in Arthur before the onset of the drug’s sedative effect.

Dr. Strader admits the sedative effect from pentobarbital will occur but opines that

Arthur will experience pain from a heart attack “until such time” as the sedative

effect reduces the pain.

After Alabama changed the first drug from pentobarbital to midazolam, Dr.

Strader switched positions and wrote a second declaration. This time, in that

13

Presumably, Dr. Strader is referring to the January 2009 EKG.

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second declaration, Dr. Strader now suggested pentobarbital should actually be

used in Arthur’s execution but only as a one-drug protocol. Dr. Strader opined that

if pentobarbital were used as a one-drug protocol and “administered gradually and

with due consideration for Mr. Arthur’s medical condition,” he did not believe that

Arthur would suffer a heart attack before being properly anesthetized. Dr.

Strader’s second declaration was conclusory and gave no specifics on what

“administered gradually” would mean or what steps would be necessary as “due

consideration for Mr. Arthur’s medical condition.”

B. Dr. Strader’s Nov. 16, 2015 Declaration

In his third declaration, Dr. Strader now criticizes the use of midazolam for

use in executions, using precisely the same reasoning (and often the exact same

wording) used in his earlier declaration condemning pentobarbital. Specifically,

Dr. Strader now opines that (1) Arthur’s likelihood of having obstructive CAD is at

least 70%; (2) for patients with obstructive CAD, a large bolus dose of midazolam

is “highly likely” to rapidly reduce blood pressure in patients with this disease,

thereby triggering a heart attack; (3) the heart attack would occur before the

appropriate sedation from midazolam; and (4) given the length of time between the

onset of heart attack and the onset of sedation, “it is likely that Mr. Arthur would

experience the pain of the heart attack until the sedative effects take effect to a

sufficient degree to diminish the pain of the heart attack, which could occur several

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minutes after the onset of the heart attack.” While the drug at issue was different,

Dr. Strader’s opinion and reasoning remained the same—that Arthur was “likely”

to experience the pain of a heart attack before being fully sedated.

Dr. Strader’s November 2015 declaration is essentially a recycled version of

his original March 2013 declaration, but with the following added information

about midazolam:

x As part of his routine clinical practice, Dr. Strader administers

“midazolam to patients for the purpose of achieving sedation for invasive cardiac

procedures.” Dr. Strader has performed approximately 3,500 invasive cardiac

procedures in cardiac patients using midazolam as a sedative.

x As to Arthur’s likelihood of having CAD, Dr. Strader updated

Arthur’s age to 73 years old, deleted his earlier declaration’s reference to Arthur’s

normal echocardiogram report in October 2004, and added a paragraph regarding

Arthur’s family history of “heart trouble.”

x In Dr. Strader’s 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” and

the hemodynamic effects of the drug can occur more quickly, within 1-2 minutes.

(Emphasis added). He stated that, when used in clinical doses, midazolam

typically produces a 10-20% drop in blood pressure. Dr. Strader opined that, when

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midazolam is given in the large 500 mg bolus dose contemplated by the ADOC

protocol, it is “highly likely that such drop in blood pressure would occur more

quickly than it would occur in the administration of a clinical dose.”

x Dr. Strader explained that the hemodynamic effects of midazolam

occur more quickly than the sedative effects because the effect on vasculature is

immediate, while the drug must travel to and affect the brain before sedation takes

place. Dr. Strader, however, acknowledged that there is no “institutional

experience” regarding a 500-mg dose of midazolam.

C. Dr. Strader’s Dec. 8, 2015 Deposition

In his 2015 deposition, Dr. Strader elaborated on this opinion:

1. Likelihood of Arthur having CAD

Dr. Strader reviewed Arthur’s medical records but admitted that he had

never personally examined Arthur, had never spoken to Arthur, and had never

spoken to any doctors who had treated Arthur.

Based on the medical records provided to him, Dr. Strader noted that Arthur

had high blood pressure, atrial fibrillation, and abnormalities on his EKGs that

were “highly suggestive of coronary disease.” Dr. Strader testified regarding the

incident in June 1999 (where Arthur visited the prison clinic with complaints of

being short of breath, sweaty, and dizzy and then had an EKG come back with

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“abnormal” results), and he stated that Arthur’s symptoms and his abnormal EKG

made it “possible” that Arthur had a heart attack back in 1999.

Dr. Strader reiterated his opinion from his declaration that the abnormal

EKG, taken on January 15, 2009, was “diagnostic” of Arthur having suffered a

previous heart attack, although Dr. Strader could not say when this prior heart

attack occurred. When asked if he could diagnose a previous heart attack based

just on an EKG, Dr. Strader replied, “Yes. Absolutely.” Dr. Strader also

referenced the January 2009 request for a cardiology consult contained in Arthur’s

medical records, but admitted that he did not know whether Arthur was ever

actually evaluated by a cardiologist.

2. Midazolam Leads to a Drop in Blood Pressure

In Dr. Strader’s opinion, if you administered even a 100-mg dose of

midazolam to a patient, such large doses “are expected to have . . . rapid,

significant hemodynamic effects.” He explained that “hemodynamic effect”

means a drop in blood pressure. To correct this issue, he suggested that doctors

would give “pressors,” very large amounts of IV fluids and medication, to stabilize

the blood pressure.

Dr. Strader testified that, in his clinical practice, drops in blood pressure

from 2-5 mg doses of midazolam can occur “within just a minute or two,

sometimes sooner.” He went on to say that, “extrapolating off of that experience

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to this very large dose, you would expect to see an extremely rapid and very large

drop in blood pressure.”

He explained that, for people with obstructed arteries, this rapid blood-

pressure drop could result in a heart attack, because “you have to maintain a certain

amount of pressure in order to keep fluid going through a tube that’s got a fair

amount of blockage in it. This is . . . applied physics.” He further explained that

older people, starting at around age 70, tended to have bigger drops in blood

pressure in response to the administration of midazolam.

In his deposition, Dr. Strader reviewed the medical articles and other

material that he cited in his November 2015 declaration, which he stated lent

support to the idea that midazolam leads to a drop in blood pressure. Dr. Strader

admitted that (1) none of the articles or materials dealt with such high doses, and

(2) none of the articles or materials explicitly stated that midazolam should not be

used on people with CAD.

3. The Heart Attack Would Occur Before Sedation

Dr. Strader stated that, based on his clinical experience, the sedation effects

of a clinical dose of 2-5 mg of midazolam typically take about five minutes to take

effect. He testified that he would typically use this dosage of midazolam on

patients before “invasive cardiac procedure[s].” (Emphasis added). When a

patient is administered a clinical dose of midazolam (2 to 5 mg), the patient goes

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into a deep sleep. They can be aroused and spoken to, but they are “very

comfortable.” (Emphasis added). He explained that in his clinic, he would titrate

the midazolam, giving it in small doses until appropriate sedation was achieved.

Dr. Strader admitted that he normally gave some sort of pain medication, such as

fentanyl, along with the midazolam, but that this was not required. He could

proceed with the procedure using midazolam alone, although it would require a

higher dose. He stated that the largest dose of midazolam he ever administered to

a patient was a 20-mg dose, used because the patient had no sedative response to

the medication.

While he opined that a 100-mg dose of midazolam would cause sedation

within “three to five minutes,” he could not give an exact time because such a dose

is “far outside of the realm of anybody’s clinical experience” and, indeed, the time

to sedation “could be a very wide range.” When asked about a 250-mg or 500-mg

dose of midazolam, Dr. Strader stated that, “I’m not sure anybody really knows to

what degree [sedation] would onset.” Dr. Strader then indicated he would need to

defer to an anesthesiologist about the onset time of sedation from a 500-mg dose of

midazolam:

Q. Now, in an execution, is it your opinion that it would take five

minutes before a person becomes unconscious if they’re

administered 500 milligrams of midazolam?

[Objection]

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A. No, I don’t think I gave any opinion as to—as to the timing for

. . . consciousness to abate. . . . In a clinical setting, I would

defer that to an anesthesiology colleague who is, you know,

more familiar with the concept of consciousness. That’s

outside my realm of practice. Again, I think you’d see a very

rapid decrease, almost instantaneous decrease in blood pressure,

and hemodynamic effects would be virtually instantaneous.

Q. But regarding the sedative effects, you just don’t know how

long?

A. I think it would take longer; how much longer, I don’t know.

...

Q. But you can’t give us a specific amount of time?

A. No, sir.

Q. Okay.

A. I don’t think anybody can give you a specific amount of time.

(Emphasis added).

Dr. Strader later stated he was aware that anesthesiologists use midazolam to

induce anesthesia but he had never done that as it was outside the scope of his area

of practice:

Q. Have you ever known an anesthesiologist to use midazolam to

cause unconsciousness?

[Objection]

A. I would assume that anesthesiologists use midazolam in part of

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their routine practice for the—you know, in anesthesia. I don’t

know the details of what they do, or when they choose, or why

they choose what they choose, so . . .

Q. But are you aware of it being used to induce anesthesia?

[Objection]

A. I’m aware that it’s approved for that use, and I think some

anesthesiologists use it for that purpose. I don’t have any direct

knowledge of what they do.

Q. Okay. So you’re never involved in a procedure where an

anesthesiologist might use midazolam to induce anesthesia?

[Objection]

A. No, I don’t—that’s outside the scope of my clinical practice.

You know, I just let them choose what they need to choose[.]

(Emphasis added). Similarly, when asked if he knew whether midazolam “is ever

used to maintain anesthesia,” he replied that the drug “carries an indication for that

[, but] I wouldn’t have direct knowledge any particular anesthesiologist’s use of it

for that reason.”

Dr. Strader explained that anesthesiologists were not present when he

performed his invasive cardiac procedures, and there was no policy or procedure

on how much midazolam to give patients. Dr. Strader reiterated that he uses

midazolam “in patients with coronary disease all the time in routine clinical

practice.”

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4. Gradual Administration of Pentobarbital

Despite stating in his first declaration that a 2,500-mg bolus dose of

pentobarbital was also likely to induce a heart attack, Dr. Strader reiterated his

conclusion from his second declaration that, if pentobarbital were administered

gradually as part of a one-drug protocol, he did not believe that Arthur would

suffer a heart attack before being properly anesthetized. Dr. Strader admitted he

would not know how to administer 2,500 mg of pentobarbital gradually and he

would defer on that matter to an anesthesiologist:

A. I wouldn’t know how gradual to do it. I know that the analogy

holds to what we do with cardiac patients in the cath lab with

midazolam. You know, again, we use small doses gradually

over longer periods of time in order to prevent acute onset of

myocardial ischemia and acute drops in blood pressure.

Q. So when you’re talking about 2,500 milligrams, how long

would that take – [Objection] – if you administered the drug

gradually?

[Objection]

A. I would have no idea.

Q. I mean, are we talking minutes or hours – [Objection] – or do

you know?

A. I would – I would defer that to an anesthesiologist who has

more experience with the drug.

Q. Well, I mean, you’re the one making the sworn declaration, and

you said, “administered gradually,” and I’m asking you, you

know, how gradually would you have to administer it?

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[Objection]

A. Yeah. Again, I think it’s the general concept that gradual

administration in small doses, you know, is the general

paradigm to prevent adverse effects. Exactly what “gradual”

would be defined as in this instance I wouldn’t – I wouldn’t

know specifics or have specifics to recommend.

Dr. Strader also would not know how to administer a large dose of

midazolam gradually but would defer to an anesthesiologist:

Q. Okay. Do you have the same opinion on if midazolam is used

in a one-drug protocol – [Objection] – if it was administered

gradually?

A. I think the general paradigm holds in order to avoid adverse

effects with these medications, you administer them in low

doses slowly. To what extent midazolam would produce full

unconsciousness or anesthesia, again, I would defer that to an

anesthesiologist. It’s outside of my scope of practice.

(Emphasis added).

D. Dr. Buffington’s Nov. 23, 2015 Declaration

As to midazolam, the ADOC offered a declaration from Dr. Daniel

Buffington, an expert witness in the field of pharmacy. Dr. Buffington is a clinical

pharmacologist who holds a Doctor of Pharmacy and Master of Business

Administration degrees. He is on the faculty of the University of South Florida

Colleges of Pharmacy and Medicine, and he is also the president of the American

Institute of Pharmaceutical Sciences.

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Dr. Buffington agreed with Dr. Strader that a common clinical dosage of

midazolam is 2 to 5 mg, and that the 500-mg dosage contemplated in the ADOC’s

protocol “is well beyond the dosage of any existing therapeutic application.” Dr.

Buffington explained that, when clinical doses of midazolam (2-5 mg) are used as

an “anesthetic induction agent, sedation occurs . . . within 2-2.5 minutes without

narcotic pre-medications or other pre-medications with sedative effects.”

Dr. Buffington stated that the medical literature “contradicts Strader’s

theoretical concerns” and “[t]here is no scientific or medical evidence to support

the theory or concerns that midazolam (IV), at low or high dosages, would result in

a significant hypotensive event . . . prior to the onset of sedation, or is capable of

inducing or worsening ischemic cardiac damage, acute cardiac events, excruciating

pain and/or suffering.”14 According to Dr. Buffington, a rapid infusion of

midazolam could result in induction of anesthesia in as little as 30 seconds.

E. Midazolam Package Insert

The ADOC also submitted the midazolam manufacturer’s package insert

with its summary judgment motion. The insert states that sedation is achieved in 3

to 5 minutes after IV injection, and that, when midazolam is given as an anesthetic

14

We note that Arthur moved to have Dr. Buffington’s declaration excluded from the evidence,

but the district court never granted that motion. Ultimately, we do not need to rely on this

declaration, but we include it for completeness.

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induction agent, “induction of anesthesia occurs . . . in 2 to 2.5 minutes without

narcotic premedication or other sedative premedication.” (Emphasis added).

F. Dr. Strader’s March 29, 2016 Declaration

In February 2016, the district court ordered the parties to meet and confer

about a possible modified execution protocol. On March 8, 2016, as part of these

negotiations, Arthur’s counsel sent a letter to the ADOC about gradual

administration of midazolam, requesting a trained professional to use several

pieces of medical monitoring equipment and to administer other medication:

[Arthur’s] 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 [which] 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.

(Emphasis added).

Arthur also submitted Dr. Strader’s fourth declaration, dated March 29,

2016. Dr. Strader stated that he was ethically prohibited from suggesting

modifications to a lethal injection protocol. Accordingly, he merely explained

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what precautions are taken and procedures followed when administering

midazolam in a clinical setting. Those precautions are:

x administration of midazolam “at a gradual rate closer to that used

in clinical practice—i.e., 0.5 mg to 2 mg at a time, repeated every 2

to 4 minutes,” along with;

x a trained professional (although this person need not have a

medical degree);

x who assesses the patient’s response to the prior dose before

continuing with another;

x continuous EKG monitoring;

x continuous pulse oximetry monitoring;

x frequent blood pressure monitoring;

x the ability to give fluids and medication via IV to raise blood

pressure; and

x use of the opioid fentanyl.

Ultimately, the negotiations reached an impasse with the parties unable to agree

on a modified execution protocol.

XI. MOTION FOR NEW TRIAL

On May 13, 2016, Arthur moved for a new trial on his Eighth Amendment

claim. He claimed that, three months after the trial, he discovered new evidence

that compounded pentobarbital is available to the ADOC. He alleged that, after

trial, the ADOC proffered Dr. Buffington as an expert for deposition in another

case,15 on March 17, 2016. Arthur alleged that Dr. Buffington said that he

15

Grayson v Dunn, Case No. 2:12-cv-316 (M.D. Ala.), a consolidated action known as the

“Midazolam Litigation.” This Court has explained that this “group of cases began as one lawsuit

[filed in April 2012] when an Alabama death row inmate sued pursuant to 42 U.S.C. § 1983 to

challenge the constitutionality of Alabama’s lethal injection protocol. . . . [The lawsuit] evolved

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“personally knew compounding pharmacists who would be willing to compound

pentobarbital for ADOC. . . . To obtain pentobarbital . . . defendants would ‘just

have to ask’—which they did not do.” Arthur attached only excerpts from Dr.

Buffington’s deposition testimony.

The ADOC opposed Arthur’s motion for a new trial, arguing that Arthur had

misrepresented Dr. Buffington’s testimony. The ADOC submitted a more fulsome

excerpt from Dr. Buffington’s March 17, 2016, deposition testimony, which

reflects that Dr. Buffington actually testified that (1) he knows pharmacists who

are capable of compounding pentobarbital and would do it for the ADOC, but that

(2) he would have to check with them first before he could give their names to the

ADOC:

Q. And would you be willing to compound pentobarbital for the

State of Alabama?

A. I can identify numerous other individuals who would be probably

more readily capable based on equipment and site and instrumentation

to do that, but I know that there are multiple facilities that can do that.

Q. Would they do it for the Alabama Department of Corrections?

along with the state’s new protocol, and now is known as the ‘Midazolam Litigation.’ Since

2012, cases brought by four other Alabama death row inmates have been consolidated into the

Midazolam Litigation.” Brooks, 810 F.3d at 817. Petitioner Brooks himself also successfully

intervened in the Midazolam Litigation. Id. Five additional inmates joined the suit after this

court decided Brooks. Brooks was executed on January 21, 2016. A search of the ADOC prison

records reveals that all 10 remaining plaintiffs are currently on Holman’s death row, although the

State has set a December 8, 2016 execution date for one of the plaintiffs.

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A. We’d just have to ask.

Q. Okay. Is it something – There’s a lot of controversy around – The

whole reason that we’re here is because there’s been a crackdown on

certain drugs by the manufacturers.

A. Well, I wouldn’t call it a crackdown. I would say limited market

availability.

Q. Right. They won't sell it to Departments of Corrections for executions.

A. That’s correct.

Q. Are all pharmacists sort of locked in in that regard and wouldn’t sell it

for purposes of an execution?

A. No. I’m sure just like physicians where somebody may exercise a

conscious clause that do find that within pharmacy as well. As a

matter of fact, it’s been an open area of discussion across the country.

...

Q. So you know a lot of pharmacists from going to conventions and

being on the Board [of Trustees of the American Pharmacists

Association] and teaching future pharmacists?

A. That’s correct.

Q. And you don’t think that it would be difficult for you to direct the

Alabama Department of Corrections to a compounding pharmacist

who would be willing to compound pentobarbital for them? . . .

A. I think that's a resolvable question. . . . Level of difficulty, how many

calls it would take, where that particular practice may reside. I know

that they’re there.

...

Q. Have you at any of the conferences that you go to or any of these –

You said that it's being discussed, the use of pharmaceuticals for lethal

injection.

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A. Absolutely.

Q. Okay. Have you ever had a discussion with colleagues at one of these

meetings about pentobarbital for lethal injection?

A. Yes.

Q. All right. And when you talked to people, did any of them say I would

do it?

A. Yes.

Q. And you know these people personally.

A. Yes.

Q. And would you be willing to provide their names to the Alabama

Attorney General?

A. I would check with them first, but what you're asking is would – and I

haven’t been asked to do this at this juncture – would it be possible to

identify appropriately-trained and well-staffed facilities to perform

that function, and the answer would be yes.

Q. And assuming that they gave you permission, you would share their

information with Mr. Govan or someone from the Alabama Attorney

General's office?

A. Or whoever was asking me to do that, yes.

Q. If Ms. Hill, the general counsel for ADOC, asked you, you would

assist her if you could?

A. Yes.

Subsequently, Dr. Buffington contacted these pharmacists but none were

willing to compound pentobarbital for the ADOC or even allow Dr. Buffington to

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reveal their names. To show this, the ADOC submitted an affidavit from Dr.

Buffington, dated April 22, 2016. Dr. Buffington averred that, “[n]one of the 15

pharmacists that 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.” (Emphasis added).

In his affidavit, Dr. Buffington further stated that he had testified at his

earlier deposition that “the use of pharmaceuticals in lethal injections is an area of

open discussion in the pharmacy community and that some colleagues I have

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.” Dr. Buffington explained that, after that deposition, counsel for

the defendants asked him to contact pharmacists and pharmacies “to inquire if any

were willing to be contacted directly by the ADOC concerning the performance of

this type of technical service.” To this end, he contacted 15 pharmacists, both

within and outside of Alabama, and asked them “about their capability to

compound sterile pentobarbital for intravenous [IV] use.”

Dr. Buffington concluded that he maintained his belief that “there are

pharmacists in the United States that are able to compound pentobarbital for use in

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lethal injections because other states have been reported to have obtained [it],” but

he was not able to locate any that were willing and able to do so.

XII. DISTRICT COURT’S JULY 19, 2016 ORDER

The district court wrote that, “[d]istilled to its essence, Arthur’s as-applied

claim is that his cardiovascular issues, combined with age and emotional makeup, 16

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.” The

district court applied, as it must, the same Baze/Glossip standard to Arthur’s as-

applied challenge as it applied to his facial challenge.

As to Arthur’s health issues, the district court concluded Arthur’s Third

Amended Complaint had failed to plead adequately or properly an “as-applied”

claim and, alternatively, the district court questioned whether Arthur had presented

sufficient evidence of any truly “unique health concerns” as to his execution. But

in “an abundance of caution” the district court considered the merits of Arthur’s as-

applied claim.

Because that “as-applied” claim was based on Dr. Strader’s declarations, the

district court examined the methodology and foundation, or lack thereof,

underlying Dr. Strader’s opinions. The district court ultimately concluded that Dr.

16

In his Third Amended Complaint, Arthur alleged that, because of his age and an “anxiety

disorder,” there is a high likelihood that he will suffer a “paradoxical reaction” to midazolam.

Arthur offered absolutely no proof on this subject, and the district court rightly considered it

abandoned.

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Strader’s opinion was speculative and unreliable under Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). We thus review the district

court’s analysis of Dr. Strader’s opinion and then its reasons for excluding it.

The district court pointed out that these facts are undisputed: (1) Dr. Strader

has never examined Arthur; (2) Arthur has repeatedly refused to submit to medical

examination; and (3) Arthur has not been seen or examined by a cardiologist since

2009.

Turning first to the alternative-method prong in Arthur’s as-applied claim,

the district court determined that “Arthur failed entirely” to establish the existence

of a known and available alternative. To the extent Arthur relied on a one-drug

protocol of pentobarbital or sodium thiopental, the district court found these

options were “foreclosed” for the reasons given in its earlier order. 17

The district court found that Dr. Strader’s opinion—that Arthur’s blood

pressure would drop before sedation took effect—is “speculative and unreliable

when extrapolated from a clinical dose of 2 to 5 mg, to a non-clinical, bolus dose

of 500 mg.” The district court noted that there was no record evidence regarding

17

Arthur had filed a declaration from Dr. Kaye who opined that midazolam would not work

during the execution, whether as a large or small dose. Even in a 500-mg dose, Dr. Kaye’s

opinion is that midazolam is “incapable of holding an inmate in an unconscious state through the

administration of the second and third lethal injection drugs.” Dr. Kaye admitted that midazolam

is useful to induce unconsciousness and that he had used it for this purpose “many, many times,”

but that it is not effective to keep a patient unconscious. Dr. Kaye opined that this is because of

midazolam’s “ceiling effect,” such that it stops being effective above a certain dose.

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whether a time “gap”—between midazolam’s hemodynamic effects and its

sedative effects at a 500-mg dose—would occur at all or, if such a gap does occur,

in what sequence it would occur. The district court then “ventur[ed] into [the]

technical thicket” of available medical and scientific evidence, parsing it into four

parts: (1) the hemodynamic and anesthetic effects of midazolam; (2) a clinical

dose for sedation; (3) a clinical dose for anesthesia; and (4) a 500-mg bolus dose.

First, the district court noted that there was evidence that clinical doses of

midazolam were known to produce a drop in blood pressure. Moreover, Dr.

Strader characterized the drug as both a sedative and an anesthetic.

The district court noted Dr. Strader’s testimony that, with a clinical dose (2-

5 mg) of midazolam, there was typically a gap of three to four minutes between the

hemodynamic effects and the sedation effects of midazolam in clinical practice.

But Dr. Strader acknowledged that none of the medical literature he relied on

cautioned against using midazolam for patients with CAD and, indeed, Dr. Strader

himself used midazolam routinely to sedate his cardiac patients during invasive

cardiac procedures. Taking Dr. Strader’s claim that he, as a cardiologist, had

performed approximately 3,500 cardiac procedures with midazolam as a sedative

and only 24 of those patients experienced a heart attack after being sedated, the

district court calculated that less than 1% of those 3,500 patients suffered a heart

attack following the administration of a clinical dose of midazolam.

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The district court also analyzed the evidence regarding use of midazolam for

“anesthesia.” Dr. Strader had administered midazolam only for sedation

purposes—which is a lighter level of sedation than full anesthesia. Dr. Strader

“had no opinion as to what would be a clinical dose of midazolam sufficient to

induce anesthesia.” However, the midazolam package insert explains that, even at

small clinical dosage levels, midazolam can induce both sedation and anesthesia in

as little as 2 minutes without narcotic premedication. In other words, if a 2-5 mg

dose of midazolam produced sedation or anesthesia in two minutes, Arthur had

failed to show how long it took a 500-mg dose to achieve anesthesia or that both

the blood pressure drop and a heart attack would occur before a 500-mg dose

achieved anesthesia.

The district court also pointed out that: (1) Dr. Strader had experience with

small doses; (2) Dr. Strader declined to offer any opinion about the length of time

it would take a 500-mg dose of midazolam to render a patient unconscious,

reiterating many times that anesthesia was outside his field of expertise; and

(3) nevertheless, Dr. Strader “remained of the opinion that the sedative effects of a

500-mg bolus dose would take longer than the hemodynamic effects.”

The district court rejected Dr. Strader’s opinion of the time gap as unreliable

under Daubert. The district court stressed three reasons. First, Dr. Strader was

incapable of saying how much time it would take a 500-mg dose to render a patient

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unconscious and, therefore, “it is impossible for him to extrapolate a sequence of

hemodynamic effect and sedation.” Second, any theoretical “gap” between

hemodynamic and sedative effects is speculative because this gap is connected

with much lower dosages. Third, Dr. Strader himself has never administered more

than 20 mg of midazolam during his career. In short, Arthur had provided 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.” (Emphasis added).

Even as to whether Arthur has CAD in the first place, the district court

determined that, because Arthur had not submitted to a medical examination since

2009, Dr. Strader’s opinion that Arthur suffered from CAD also “borders on being

speculative and unreliable.” As the district court explained, “[b]oth must exist—

the heart condition and the gap [in time between the hemodynamic effects and the

sedation effects of midazolam] Dr. Strader expects—for there to be a realistic

likelihood of the heart attack” before sedation takes effect. Based on the evidence

as presented, the court determined that “it cannot be said that a heart attack is sure

or very likely at all; one cannot make that connection from the medical evidence.”

Therefore, Arthur had 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

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as applied to him,” and this failure “dooms his as-applied Eighth Amendment

claim.”

As to Arthur’s motion for a new trial, the district court concluded that

“Arthur’s ‘new evidence’ is nothing but generic testimony from Dr. Buffington

describing passing conversations he has had with other pharmacists during national

conventions concerning the use of pharmaceuticals, including pentobarbital, for

lethal injection.” However, in his subsequent affidavit, Dr. Buffington actually

admitted that he contacted 15 pharmacists and none were willing or able to provide

compounded pentobarbital for use in lethal injections for the ADOC. Thus, Dr.

Buffington’s earlier deposition testimony was not “likely to produce a new result”

at trial, and the motion for a new trial was denied.

On July 19, 2016, the district court entered its final judgment in favor of the

defendants. Arthur timely appealed the final judgment to our Court. We read the

Final Judgment to encompass both the April 15, 2016 and July 19, 2016 orders.

This Court ordered expedited briefing, which is now complete as of October 19,

2016. The Alabama Supreme Court has set an execution date of November 3,

2016.

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XIII. RELEVANT LAW

With this lengthy procedural history in mind, we turn to Arthur’s arguments

on appeal. Before we do so, however, it is helpful to set forth the legal framework

within which we must resolve Arthur’s claims.

A. Glossip and Baze

The Eighth Amendment prohibits “cruel and unusual punishments.” U.S.

Const. amend. VIII. The Supreme Court has repeatedly held the death penalty to

be constitutional. See Glossip, 135 S. Ct. at 2739. “[I]t necessarily follows that

there must be a constitutional means of carrying it out.” Id. at 2732-33 (alterations

adopted) (quoting Baze, 553 U.S. at 47, 128 S. Ct. at 1529) (internal quotation

marks omitted). Further, the Supreme Court has held that “some risk of pain is

inherent in any method of execution,” and that the Constitution does not require

“the avoidance of all risk of pain.” Id. at 2733 (quoting Baze, 553 U.S. at 47, 128

S. Ct. at 1529).

The Supreme Court has required prisoners seeking to challenge a state’s

method of execution to meet a “heavy burden.” Baze, 553 U.S. at 53, 128 S. Ct. at

1533 (internal quotation marks omitted). Thus, in order to succeed on an Eighth

Amendment method-of-execution claim, the Supreme Court has instructed that

prisoners must demonstrate that the challenged method of execution presents a risk

that is “sure or very likely to cause serious illness and needless suffering, and give

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rise to sufficiently imminent dangers.” Glossip, 135 S. Ct. at 2737 (quoting Baze,

553 U.S. at 50, 128 S. Ct. at 1531) (internal quotation marks omitted). “To prevail

on such a claim, there must be a substantial risk of serious harm, an objectively

intolerable risk of harm.” Id. (internal quotation marks omitted).

This requires more than merely showing “a slightly or marginally safer

alternative.” Id. (quoting Baze, 553 U.S. at 51, 128 S. Ct. at 1531) (internal

quotation marks omitted). Instead, prisoners are required to “identify an

alternative that is feasible, readily implemented, and in fact significantly reduces a

substantial risk of severe pain.” Id. (citing Baze, 553 U.S. at 52, 128 S. Ct. at

1532) (internal quotation marks and alteration omitted). In other words, the

prisoner must demonstrate that the risk of severe pain is substantial “when

compared to the known and available alternatives.” Id. (emphasis added) (citing

Baze, 553 U.S. at 61, 128 S. Ct. at 1537). Thus, we must view the two “prongs” of

the Baze/Glossip test in concert—it is not enough to ask merely if the risk of

severe pain is substantial. Instead, the risk of severe pain must be substantial and

objectively intolerable in comparison to an alternative method that is feasible and

readily implemented. Id. And that alternative method must “significantly reduce”

a substantial risk of severe pain. Id. “As the Supreme Court made abundantly

clear in Glossip itself, the burden rests with the claimant to ‘plead and prove’ both

prongs of the test.” Brooks, 810 F.3d at 819.

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Critical to this case, Glossip involved the same three-drug protocol that the

ADOC will use in Arthur’s execution. 135 S. Ct. at 2734-35. In Glossip, the

Supreme Court concluded, inter alia, that the petitioner had not “proved that any

risk posed by midazolam is substantial when compared to known and available

alternative methods of execution.” Id. at 2737-38. The Supreme Court later

repeated that the petitioners had not satisfied their burden of establishing that any

risk of harm was substantial when compared to a known and available alternative

method of execution. Id. at 2738-39.

B. Feasible, Readily Implemented, and Significantly Safer

While the Supreme Court in Glossip did not explicitly define “feasible,”

“readily implemented,” or “known and available,” it upheld a factual finding that

both sodium thiopental and pentobarbital were unavailable to Oklahoma by 2014

for use in executions where the state was unable to procure those drugs due to

supplier problems. Glossip, 135 S. Ct. at 2733-34, 2738.

And earlier in 2016, in another Alabama-execution case, this Court rejected

an inmate’s claim that the exact same alternatives that Arthur proposes here—

namely, single-drug protocols of either pentobarbital18 or sodium thiopental—were

18

Although it is not entirely clear, it appears that the petitioner in Brooks was arguing that

compounded (not commercially manufactured) pentobarbital was a known and available

alternative method of execution. See Brooks, 810 F.3d at 819 & n.2. Arthur’s allegation that

Alabama’s supply of commercially manufactured pentobarbital expired on or around November

2013 also supports this presumption.

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alternatives “available to the ADOC that significantly reduce the risk of an

unconstitutional level of pain.” Brooks, 810 F.3d at 819.19 This Court concluded

that (1) “the fact that the drug [pentobarbital] was available in those states at some

point over the past two years does not, without more, make it likely that it is

available to Alabama now”; and (2) Brooks had not shown that “there is now a

source for pentobarbital that would sell it to the ADOC for use in executions.” Id.

at 819-20.

In that same Alabama-execution case, this Court determined that petitioner

Brooks had not shown that sodium thiopental was available. Id. at 820-21. Brooks

had relied on certain news articles that other states had been able to obtain the

drug, but these sources actually undermined his claim that the ADOC “could

readily import sodium thiopental.” Id. As to Brooks’s request for a single-drug

midazolam protocol, this Court noted that Brooks had conceded that a midazolam-

only protocol had never been used in an execution, and his concession “deeply

undercut his claim that it is a known, readily implementable, and materially safer

lethal injection alternative.” Id. at 821-22. And given the dearth of evidence

presented on the safety of this untested alternative, Brooks was unlikely to

establish that it was “materially safer than a protocol that is identical to one

19

The Brooks Court also rejected a midazolam-only alternative. 810 F.3d at 821-22.

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approved by the Supreme Court.” Id. at 822 (citing Glossip, 135 S. Ct. at 2734-

35).

Viewing these precedents together, we conclude that Glossip’s “known and

available” alternative test requires that a petitioner must prove that (1) the State

actually has access to the alternative; (2) the State is able to carry out the

alternative method of execution relatively easily and reasonably quickly; and

(3) the requested alternative would “in fact significantly reduce[] a substantial risk

of severe pain” relative to the State’s intended method of execution. Glossip, 135

S. Ct. at 2737; Brooks, 810 F.3d at 819-23.

With this legal framework in mind, we now address each of Arthur’s

arguments on appeal in turn.

XIV. PENTOBARBITAL IS NOT AVAILABLE TO ADOC

Arthur claims that the district court erred in finding that he had not carried

his burden to show that pentobarbital is a feasible and readily implemented

alternative method of execution available to the ADOC.20

The standard of review and burden of persuasion are critical to the resolution

of this case. The Supreme Court has made unequivocally clear that, in method-of-

execution challenges, (1) the district court’s factual findings are reviewed under a

deferential clear error standard, and (2) the petitioner-inmate bears the burden of

20

In this appeal, Arthur has not resurrected his claim regarding a one-drug protocol of sodium

thiopental as a feasible alternative method of execution. Accordingly, we will not address it.

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persuasion. Glossip, 135 S. Ct. at 2739. This includes the requirement that a

plaintiff inmate must “plead and prove a known and available alternative.” Id. at

2738, 2739.

In Glossip, the Supreme Court considered a challenge to the identical lethal

injection protocol at issue in this case—midazolam, followed by a bromide-based

paralytic, followed by potassium chloride. Id. at 2734-35. The dosage of

midazolam is the same here as in Glossip: 500 milligrams. Id. at 2740. The

Glossip plaintiffs brought a § 1983 action alleging that this protocol, particularly

midazolam, created an unacceptable risk of severe pain and sought a preliminary

injunction. Id. at 2731.

The Supreme Court in Glossip affirmed the district court’s denial of relief

for two reasons. First, it held that the plaintiffs had not identified a “known and

available alternative method of execution that entails a lesser risk of pain, a

requirement of all Eighth Amendment method-of-execution claims.” Id. (emphasis

added). Second, it determined that the district court did not clearly err in finding

that the prisoners failed to establish that Oklahoma’s use of a large dose of

midazolam in its execution protocol entailed “a substantial risk of severe pain.” Id.

We follow the Supreme Court’s lead and address the requirements of the

Baze/Glossip test in that order: (1) proof of known and available alternatives;

(2) proof that 500 mg of midazolam will cause a substantial risk of severe pain and

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that known and available alternatives will “significantly reduce” that substantial

risk of severe pain.

Here, the district court’s factual finding that pentobarbital was not available

to the ADOC for use in executions was not clearly erroneous.

On the contrary, substantial record evidence supports that finding, including

(1) Arthur’s own concession that the ADOC’s supply of commercially

manufactured pentobarbital expired in November 2013; (2) Dr. Zentner’s inability

to point to any source willing to compound pentobarbital for the ADOC; and

(3) ADOC lawyer Hill’s testimony that, despite contacting 29 potential sources for

compounded pentobarbital (including the departments of corrections of four states

and all of the compounding pharmacies on Dr. Zentner’s list), she was unable to

procure any compounded pentobarbital for the ADOC’s use in executions.

Arthur would have us hold that if a drug is capable of being made and/or in

use by other entities, then it is “available” to the ADOC. Arthur stresses that:

(1) pharmacies throughout Alabama are theoretically capable of compounding the

drug; (2) the active ingredient for compounded pentobarbital (pentobarbital

sodium) is generally available for sale in the United States; and (3) four other

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states were able to procure and use compounded pentobarbital to carry out

executions in 2015. 21

We expressly hold that the fact that other states in the past have procured a

compounded drug and pharmacies in Alabama have the skills to compound the

drug does not make it available to the ADOC for use in lethal injections in

executions. The evidentiary burden on Arthur is to show that “there is now a

source for pentobarbital that would sell it to the ADOC for use in executions.”

Brooks, 810 F.3d at 820 (emphases added).

To adopt Arthur’s definition of “feasible” and “readily implemented” would

cut the Supreme Court’s directives in Baze and Glossip off at the knees. As this

Court explained in Brooks, a petitioner must show that “there is now a source for

pentobarbital that would sell it to the ADOC for use in executions.” 810 F.3d at

21

Arthur’s claim is only about “compounded pentobarbital,” and he makes no claim that the

ADOC has access to commercially manufactured pentobarbital. Nor could he. In Glossip, the

Supreme Court observed that Oklahoma in December 2010 became the first state to execute an

inmate using pentobarbital, and states “gradually shifted to pentobarbital as their supplies of

sodium thiopental ran out.” 135 S. Ct. at 2733. Pentobarbital was used in all 43 executions

carried out in 2012. Id. As the Supreme Court noted, “[b]efore long, however, pentobarbital

also became unavailable” because “[a]nti-death-penalty advocates lobbied the Danish

manufacturer of the drug to stop selling it for use in executions.” Id. “That manufacturer

opposed the death penalty and took steps to block the shipment of pentobarbital for use in

executions in the United States.” Id. The Supreme Court added, “Oklahoma eventually became

unable to acquire the drug through any means.” Id.

As Arthur points out in his reply brief, more than a dozen inmates (to date, seven in

Texas, seven in Georgia, and one in Missouri) have been executed in 2016 using a single-drug

pentobarbital protocol. See Execution List 2016, DEATH PENALTY INFORMATION CENTER,

http://www.deathpenaltyinfo.org/execution-list-2016. Given Glossip, these states presumably

used compounded pentobarbital in these executions.

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820 (emphases added). This Arthur patently did not do. Arthur’s own expert

witness, Dr. Zentner, could not even identify any pharmacies that had actually

compounded an injectable solution of compounded pentobarbital for executions or

were willing to do so for the ADOC. And when ADOC attorney Hill actually

asked the pharmacies identified by Dr. Zentner if they would be willing to

compound pentobarbital for the ADOC, they all refused. What’s more, Hill

contacted no less than 29 potential sources for compounded pentobarbital—

including numerous pharmacies and four states’ departments of corrections. All of

these efforts were unsuccessful.

And while four states had recently used compounded pentobarbital in their

own execution procedures, the evidence demonstrated that none were willing to

give the drug to the ADOC or name their source. As we have explained, “the fact

that the drug was available in those states at some point . . . does not, without

more, make it likely that it is available to Alabama now.” Brooks, 810 F.3d at 819.

On this evidence, the district court did not clearly err in determining that Arthur

failed to carry his burden to show compounded pentobarbital is a known and

available alternative to the ADOC. An alternative drug that its manufacturer or

compounding pharmacies refuse to supply for lethal injection “is no drug at all for

Baze purposes.” Chavez v. Florida SP Warden, 742 F.3d 1267, 1275 (11th Cir.

2014) (Carnes, C.J., concurring).

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Arthur also argues that the ADOC did not make a “good faith effort” to

obtain pentobarbital. Glossip did not impose such a requirement on the ADOC. In

Glossip, the Supreme Court upheld the district court’s factual finding that the

proposed alternative drugs were not “available.” See Glossip, 135 S. Ct. at 2738.

It continued, “[o]n the contrary, the record shows that Oklahoma has been unable

to procure those drugs despite a good-faith effort to do so.” Id. Nothing in Glossip

changed the fact that it is not the state’s burden to plead and prove “that it cannot

acquire the drug.” Brooks, 810 F.3d at 820.22 The State need not make any

showing because it is Arthur’s burden, not the State’s, to plead and prove both a

known and available alternative method of execution and that such alternative

method significantly reduces a substantial risk of severe pain. Glossip, 135 S. Ct.

at 2737, 2739.

As an alternative, independent reason for affirmance, we also conclude that

even if Glossip somehow imposes a good-faith effort on the State, the ADOC

made such an effort here by contacting 29 potential sources for the drug, including

four other departments of correction and multiple compounding pharmacies.

22

In support of his argument, Arthur points us to language from Baze that a state’s refusal to

change its method of execution “in the face of these documented advantages, [and] without a

legitimate penological justification for adhering to its current method of execution” can violate

the Eighth Amendment. Baze, 553 U.S. at 52, 128 S. Ct. at 1532. But this language would

apply only where the death-sentenced petitioner has already met his burden of proof and

established an available alternative method of execution that “significantly reduce[s] a

substantial risk of severe pain,’” which Arthur did not do here. See Glossip, 135 S. Ct. at 2737.

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Under these record facts, we cannot fault at all the district court’s finding

that the procurement of compounded pentobarbital was not “feasible and readily

implemented as an execution drug in Alabama, nor [was] it readily available to the

ADOC.”

We also reject Arthur’s argument that the district court’s ruling was a

“nullification” of his Eighth Amendment rights. The district court even waited for

Glossip to be decided and then followed Glossip’s requirement that the inmate

must show that the risk of severe pain from the chosen method is substantial “when

compared to the known and available alternatives.” Glossip, 135 S. Ct. at 2737

(emphasis added). As we discussed above, Arthur did not show that his alternative

was “known and available,” much less (as discussed more later) that his suggested

alternative “significantly reduce[d]” a substantial risk of severe pain. See id.

As for the alleged risk of severe pain in Alabama’s current protocol, “it is

difficult to regard a practice as ‘objectively intolerable’ when it is in fact widely

tolerated.” Baze, 553 U.S. at 53, 128 S. Ct. at 1532. Both this Court and the

Supreme Court have upheld the midazolam-based execution protocol that Arthur

challenges here. Glossip, 135 S. Ct. at 2739-40 (noting that “numerous courts have

concluded that the use of midazolam as the first drug in a three-drug protocol is

likely to render an inmate insensate to pain that might result from administration of

the paralytic agent and potassium chloride.”); Brooks, 810 F.3d at 818, 819

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(concluding that petitioner Brooks had not established a substantial likelihood that

Alabama’s lethal injection protocol creates a “demonstrated risk of severe pain,”

and noting that this was “an especially difficult burden” given the Supreme Court’s

approval of the exact same protocol in Glossip); Chavez, 742 F.3d at 1269

(affirming the dismissal of Eighth Amendment challenge to Florida’s nearly

identical lethal injection protocol that uses 500 mg of midazolam as the first drug).

Indeed, in Glossip, the Supreme Court emphasized that midazolam has been

repeatedly and successfully used without problems as the first drug in the three-

drug lethal injection protocol. 135 S. Ct. at 2734, 2740-46. The Supreme Court

observed that, in October 2013, Florida became the first state to substitute

midazolam for pentobarbital as part of a three-drug protocol. Id. at 2734. The

Supreme Court stressed that, at the time that it decided Glossip in June 2015,

Florida had conducted 11 executions using this lethal injection protocol (with

midazolam as the first drug). Id. (citing Brief for State of Florida as Amicus

Curiae 2-3 and Chavez, 742 F.3d at 1269). The Glossip Court noted that 12

executions total (including the 11 from Florida and one from Oklahoma) had been

conducted using this three-drug protocol “without any significant problems.” Id. at

2734, 2746. Since then, Florida has executed two additional inmates under that

protocol. See Execution List: 1976 – present, FLA. DEP’T OF CORR.,

http://www.dc.state.fl.us/oth/deathrow/execlist.html (providing the list of executed

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Florida inmates); Execution by Lethal Injection Procedures, FLA. DEP’T OF CORR.

(Jan. 9, 2015), http://www.dc.state.fl.us/oth/deathrow/lethal-injection-procedures-

as-of_01-09-15.pdf (describing Florida’s current lethal injection protocol).

Arthur has failed to show not only that compounded pentobarbital is an

available alternative to the ADOC but also that ADOC’s protocol creates a

substantial risk of severe pain when compared to available alternatives. See

Glossip, 135 S. Ct. at 2737.

For all of these reasons, we affirm the district court’s determination that the

ADOC was entitled to judgment on Arthur’s facial Eighth Amendment challenge.

XV. DISCOVERY CLAIM

Before leaving pentobarbital, we address one more claim Arthur raises about

that drug. Arthur argues that the district court abused its discretion in limiting his

discovery regarding primarily the ADOC’s knowledge of and efforts to obtain

compounded pentobarbital as an alternative method of execution. We review the

district court’s discovery decisions for abuse of discretion. Burger King Corp. v.

Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999); Sanderlin v. Seminole Tribe of

Fla., 243 F.3d 1282, 1285 (11th Cir. 2001) (explaining that this Court reviews a

district court’s denial of a motion to compel discovery for abuse of discretion). As

we have explained:

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A district court has wide discretion in discovery matters and our

review is “accordingly deferential.” A court abuses its discretion if it

makes a “clear error of judgment” or applies an incorrect legal

standard. Moreover, a district court's denial of additional discovery

must result in substantial harm to a party’s case in order to establish

an abuse of discretion.

Bradley v. King, 556 F.3d 1225, 1229 (11th Cir. 2009) (citations omitted).

Here, the district court did not disallow all discovery about pentobarbital but

did restrict the scope of some additional discovery. For example, the district court

allowed additional discovery as to the “availability or unavailability of

pentobarbital or compounded pentobarbital” to the ADOC, including a general

description of the State’s “efforts to obtain pentobarbital, including whether the

pentobarbital was obtained and, if not, the reasons why it could not be obtained.”

This information was precisely what Arthur needed to prove his Eighth

Amendment claim.

Accordingly, during ADOC lawyer Hill’s November 2015 deposition and

again at the January 2016 trial, Arthur questioned Hill about the ADOC’s attempts

to obtain compounded pentobarbital. According to Hill, although she repeatedly

attempted to obtain compounded pentobarbital from various sources, including the

18 pharmacies identified by Arthur’s expert witness, all of her attempts were

unsuccessful.

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Arthur complains that the district court did not require the ADOC to disclose

the names of the drug suppliers who talked to the ADOC about pentobarbital

during the ADOC’s efforts to procure the drug for executions. Given the

controversial nature of the death penalty, it is not surprising that parties who might

supply these drugs are reluctant to have their names disclosed.

Considering the district court’s broad discretion, we cannot say its decision

about discovery resulted in “substantial harm” to Arthur’s case. See Bradley, 556

F.3d at 1229.

On appeal, Arthur argues that “if discovery revealed” that ADOC did not

pursue certain sources, or “if discovery revealed” that negotiations broke down

over prices, it would impact his claim. He worries that, without access to this

discovery, the ADOC “could have presented self-serving representations.” All of

this is pure speculation. Arthur never deposed or questioned even the prospective

suppliers that his own expert identified about whether they would provide

compounded pentobarbital to the ADOC. Arthur has given us no reason to think

that the ADOC lied or presented false evidence either during discovery or at trial

and, indeed, the district court noted that the ADOC had claimed to produce

everything of relevance. Under these circumstances, we cannot say that the district

court abused its discretion in denying the discovery sought by Arthur.

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XVI. AS-APPLIED EIGHTH AMENDMENT CLAIM

Because Arthur’s facial Eighth Amendment claim so readily fails, Arthur

turns his focus in this appeal to his “as-applied” Eighth Amendment claim. We

explain why the district court did not err in granting summary judgment on

Arthur’s “as-applied” claim. 23

The first hurdle for Arthur is that the pleading burden and standard of proof

set forth in Baze and Glossip apply to both facial and as-applied Eighth

Amendment method-of-execution claims. See Gissendaner v. Comm’r, Ga. Dep’t

of Corr., 803 F.3d 565, 569 (11th Cir.), cert. denied sub nom. Gissendaner v.

Bryson, 136 S. Ct. 26 (2015) (“[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.”); see id. at 568-69 (holding

that a Georgia death-row inmate had failed to adequately allege that there was a

substantial risk to her personally because the state had improperly stored the

particular drug to be used at her execution).

Thus, Arthur had the burden to present evidence sufficient to create a

genuine issue of disputed material fact as to whether midazolam creates a

23

We review a district court’s ruling on summary judgment de novo. Mathews v. Crosby, 480

F.3d 1265, 1268 (11th Cir. 2007). Summary judgment is appropriate only when the evidence

before the court demonstrates 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). The evidence must be

viewed in the light most favorable to Arthur as the nonmoving party. Mathews, 480 F.3d at

1269.

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substantial risk of severe pain as applied to him uniquely “when compared to the

known and available alternatives” for his execution as applied to him. Glossip,

135 S. Ct. at 2737; Gissendaner, 803 F.3d at 568-69. This he did not do. We

address Arthur’s proposed alternatives and then Arthur’s allegation that midazolam

will affect him differently and uniquely from other inmates by causing him to

experience the pain of a heart attack a few minutes before being rendered

unconscious.

A. As-Applied Alternatives

As to the alternative-method requirement for his as-applied claim, Arthur

has not established, as explained above, that a one-drug protocol consisting of

compounded pentobarbital (or, for that matter, a one-drug protocol consisting of

sodium thiopental) is a “known and available” alternative to the ADOC at this time

for any inmate, much less as to Arthur on November 3, 2016. That leaves only his

proposed alternative of material and extensive modifications to Alabama’s current

protocol, which Arthur suggests will reduce “to some extent” but not eliminate the

risk of his having a heart attack.24

24

Arthur failed to specifically plead, or request, a modification of the midazolam protocol in his

Second or Third Amended Complaints. The district court would have been well within its

discretion to dismiss any such putative claim. See Glossip, 135 S. Ct. at 2739 (conferring on

petitioners the burden to plead and prove a known and available alternative). But since the

district court addressed the claim on the merits, we do too.

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Arthur’s proposed modified protocol has many components, starting with

the administration of midazolam gradually. In his fourth declaration, Dr. Strader

opined that administration of midazolam at a rate “closer to that used in clinical

practice—i.e., 0.5 mg to 2 mg at a time, repeated every two to four minutes” would

reduce the risk of a precipitous drop in blood pressure. Dr. Strader’s fourth

declaration does not state how long these small dosages should be administered to

the inmate, what the intended effect would be, how to gauge when that intended

effect would be reached, at what point unconsciousness would be reached in

gradual administration, or at what point the second and third drugs should be

administered. Arthur concedes, as he must, that a gradual administration of

midazolam has not previously ever been used in a lethal-injection execution, which

alone suggests Arthur’s difficulty in proving that a gradual administration is a

significantly safer alternative. See Brooks, 810 F.3d at 821-22 (concluding that the

petitioner had not met his burden of showing that a midazolam-only protocol was a

“feasible, readily implementable, and significantly safer” method of execution

where such a protocol had never been used).

Arthur’s proposed modified protocol also includes extensive monitoring

with multiple pieces of sophisticated medical equipment, the use of additional

“medication” and IV fluids, and the attendance of a “trained professional.”

Arthur’s March 8, 2016, letter to the ADOC’s attorneys requested that a “trained

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professional” use an electroencephalogram, an electrocardiogram (“EKG”), and a

bispectral index monitor “and/or other appropriate methods” to monitor Arthur

throughout the execution. Arthur also requested the availability of “other

medication to prevent cardiac complications.”

Dr. Strader echoed that, “[i]n the clinical setting, continuous EKG

monitoring, continuous pulse oximetry monitoring . . . and frequent blood pressure

monitoring (every one to two minutes) are common.” As to the additional

medication and fluids, Dr. Strader stated that, “[i]n clinical practice,” if a patient is

in danger of a heart attack, “pressors” or “agents to increase blood pressure are

typically given, such as intravenous phenylephrine (Neosynephrine) or intravenous

dopamine.” In addition, “in clinical practice, the opioid fentanyl is often

administered with midazolam, and the drug romazicon may be used to reverse

midazolam’s effects.”

Again, Arthur’s proposed modified protocol is light on specifics. Other than

Dr. Strader’s assertion that the “trained professional” need not hold a medical

degree, Arthur does not posit what training, or how much training, this professional

must have, who this person might be or where the ADOC might find them to

participate in an execution within a prison setting. Arthur does not explain how the

addition of five separate monitoring machines and/or procedures would be

incorporated into the ADOC’s current protocol. Arthur does not state what sort of

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anomaly in that monitoring would require action by the trained professional, nor

what those actions would include.

While Dr. Strader stated that “changes in EKG monitoring” indicating the

onset of a heart attack could lead to the administration of pressors, he does not

state what sort of “changes” would require this, the amount of pressors to be given,

or in what order in relation to the rest of the lethal injection protocol they should be

administered. Arthur does not suggest at what dosage the trained professional

would administer the opioid fentanyl or the drug romazicon to the inmate or under

what factual circumstances those drugs should be administered and for how long.

Arthur also has presented no evidence that suppliers would provide these

medicines, such as fentanyl, to the ADOC for use in executions.

More importantly, though, is that Arthur admitted in a letter to the ADOC’s

counsel that his proposed modified protocol “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.” (emphases

added). Glossip cautions us that prisoners cannot successfully challenge a method

of execution “‘merely by showing a slightly or marginally safer alternative.’” 135

S. Ct. at 2737 (quoting Baze, 553 U.S. at 51, 128 S. Ct. at 1531). But a

“marginally safer” alternative is, at best, all that Arthur has suggested. It is not

enough to meet his burden under Glossip and Baze. See Baze, 553 U.S. at 56-57,

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128 S. Ct. at 1534-35 (rejecting the petitioners’ proposed alternative method of

execution where there was no evidence demonstrating that it was an “equally

effective manner” of death than the three-drug protocol used in Kentucky); Brooks,

810 F.3d at 821-22 (holding that, given the lack of available evidence regarding a

midazolam-only lethal injection protocol, Brooks was unlikely to establish “that a

heretofore untested lethal injection protocol . . . is materially safer than a protocol

that is identical to one approved by the Supreme Court [in Glossip.]”).

Alternatively, we agree with the district court that Arthur has not introduced

any evidence of sufficient specifics to make his proposed modified protocol a

viable and feasible alternative method of execution that the ADOC could “readily

implement” for his execution on November 3, 2016. Arthur argues that he could

not provide more specifics because doctors are prohibited from participating in

lethal injections.25 This seems contradicted by Dr. Strader’s testimony, which

outlines the broad components of Arthur’s proposal, albeit without many of the

specifics necessary to implement it.

In any event, we need not rely on the lack of specifics because Arthur has

not shown that his proposed modified protocol will “significantly reduce” any

25

Rule 9.7.3 of the American Medical Association’s (“AMA”) Code of Medical Ethics provides

that “a physician must not participate in a legally authorized execution,” with “participation”

defined as, inter alia, the “[r]endering of technical advice regarding execution.” AMA Code of

Medical Ethics Rule 9.7.3 (2016).

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“substantial risk of severe pain” or is constitutionally required 26 See Glossip, 135

S. Ct. at 2737. If anything, the vastly reduced levels of midazolam seem more

complicated and designed to prolong the execution proceeding itself, which may

create more, not less, risk of error.

Thus, the district court did not err in concluding that there was no genuine

dispute of material fact as to whether Arthur could meet his burden of proof to

show that his proposed material and extensive changes to the midazolam protocol

would be a known and available alternative that would “significantly reduce a

substantial risk of severe pain.” Without a proper showing on this alternative-

method prong, Arthur’s as-applied Eighth Amendment claim is without merit and

this alone warranted the district court’s grant of summary judgment. However,

because the district court went on to address the substantial-risk-of-severe-pain

26

Ironically, Dr. Kaye, Arthur’s other expert, opined that midazolam was “fundamental[ly]

unsuitab[le] . . . as the first drug in the ADOC protocol” because it was “incapable” of

maintaining unconsciousness through administration of the second and third drug. The district

court found that this evidence was “wholly inconsistent” with Arthur’s latest position that

gradual administration of small doses of midazolam could be a feasible, readily available, and

safer alternative. For this reason, the district court found that “Arthur cannot credibly propose

the use of midazolam in any argument for a remedy [i.e., an alternative method], based upon his

own evidence.” The district court did not see how Arthur can argue that midazolam in small

doses can be used to painlessly render him unconscious and, in the same breath, say that the drug

ought not to be used at all in any dose because it will not render him insensate during the

administration of the second and third drugs. See Brooks, 810 F.3d at 822 (noting a similar

“fundamental tension” in the petitioner’s argument that a midazolam-only protocol was a known

and available alternative).

As an independent and alternative ground, this testimony by Arthur’s own expert witness

also demonstrates that the district court did not clearly err in finding that Arthur did not meet his

burden to show a known, available, and substantially safer alternative, as he was required to do

in his as-applied claim. Glossip, 135 S. Ct. at 2737; Gissendaner, 803 F.3d at 568-69.

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prong of the Baze/Glossip test, and Arthur’s arguments on appeal focus on this

portion of the district court’s order, we too will consider that issue.

B. As-Applied Substantial Risk of Severe Pain

To be clear, because, in his as-applied claim, Arthur has not carried his

burden to show a known and available alternative, we need not reach his claim that

the ADOC’s use of 500 mg of midazolam will cause him uniquely to suffer a heart

attack a few minutes before full sedation. But we do so because it is so apparent

that Arthur’s as-applied claim fails on that separate prong too. Indeed, Arthur

failed to present any admissible evidence that 500 mg of midazolam, as applied to

him, will cause a heart attack before full sedation. Dr. Strader is Arthur’s only

expert witness on this as-applied issue. And the district court excluded this time-

gap part of his opinion testimony under Daubert.

We review a district court’s decision to exclude expert testimony under

Daubert for an abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43,

118 S. Ct. 512, 517 (1997). Under this standard, this Court defers to the district

court’s ruling unless it is manifestly erroneous. Quiet Tech. DC-8, Inc. v. Hurel-

Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003). This deferential standard

is not relaxed even though a Daubert ruling may be outcome determinative.

Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1334–35 (11th Cir. 2010). In addition, the

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party offering the expert has the burden of proving the admissibility of the

testimony by a preponderance of the evidence. Id.

Federal Rule of Evidence 702 governs the admission of expert testimony in

federal court and provides that:

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.

Fed. R. Evid. 702.

Applying these principles, this Court has held that, to be admissible, three

requirements must be met:

First, the expert must be qualified to testify competently regarding the

matter he or she intends to address. Second, the methodology used

must be reliable as determined by a Daubert inquiry. Third, the

testimony must assist the trier of fact through the application of

expertise to understand the evidence or determine a fact in issue.

Kilpatrick, 613 F.3d at 1335.

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Dr. Strader is a qualified cardiologist and competent to testify as such. But

Dr. Strader’s opinion testimony hinged on the existence of a measurable time gap

between the hemodynamic and sedative effects of a 500-mg dose of midazolam on

patients with CAD. The district court’s Daubert exclusion was based on Dr.

Strader’s methodology being speculative and unreliable.

Dr. Strader’s opinion was based on at least five underlying ingredients in his

methodology mix: (1) Arthur actually has, or is “highly likely” to have, a clinically

significant case of CAD; (2) a 500-mg dose of midazolam will result in a

precipitous and dangerous blood pressure drop in Arthur; (3) that blood pressure

drop will in turn trigger a heart attack in Arthur; (4) the sedative effects of a 500-

mg dose of midazolam will take longer than both this hemodynamic effect and the

heart attack to occur; and (5) due to this time gap, Arthur is “likely” to feel the pain

of the heart attack for a few minutes before he is rendered fully unconscious. The

district court, in effect, concluded that each of these steps in Dr. Strader’s

methodology were speculative and not reliable. Without even one of these steps,

Dr. Strader’s opinion folds like a house of cards. We explain why the district court

did not abuse its discretion in concluding that Dr. Strader’s methodology was

unreliable and in excluding his time-gap opinion.

First, we address Dr. Strader’s medical opinion that Arthur “likely” has

CAD. It is undisputed that (1) no doctor has ever actually diagnosed Arthur with

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CAD; and (2) Dr. Strader himself has never examined Arthur, talked to Arthur’s

treating physicians, or done anything more than review the medical records given

to him. Further, Arthur’s medical records nowhere state that Arthur has ever had a

heart attack, has ever been diagnosed with a heart attack, or has ever had a

procedure performed to assess whether Arthur has any blockage in his arteries or at

what level.

The most the medical records say is that Arthur had “abnormal” EKGs in

1999 and 2009, twice had atrial fibrillation (during his 2004 abdominal surgery and

his 2009 EKG), and had a normal echocardiogram in 2004. There is no description

of what was “abnormal” in the EKGs. Arthur did visit the prison clinic on two

occasions complaining of being short of breath, dizzy, sweaty, and/or having chest

pains. But these two visits (in 1999 and 2009) were ten years apart, and Arthur has

never requested any medical treatment from a cardiologist.

In fact, Dr. Strader relies primarily on Arthur’s age, hypertension, atrial

fibrillation, and “symptoms of recurrent chest pain” as merely “risk factors” for

coronary heart disease, as opposed to the missing diagnosis of coronary heart

disease. The State argues that it was not an abuse of discretion for the district court

to find Dr. Strader’s opinion—that it was “highly likely” that Arthur suffers from

CAD—“borders on being speculative and unreliable.” The State asserts that a

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“likelihood” is not evidence that Arthur actually suffers from an obstructive

coronary heart condition.

We need not resolve the CAD debate because the district court did not abuse

its discretion in concluding Dr. Strader’s time-gap theory was speculative and not

reliable. We will assume that Arthur likely has CAD and examine the next steps in

Dr. Strader’s methodology. Dr. Strader offered the opinion that “[w]hen

midazolam is administered in doses larger than those administered in clinical

practice, including the 500 mg dose directed by the ADOC protocol, it is highly

likely that” the drug will cause a rapid drop in blood pressure and that this drop

will in turn “immediate[ly]” cause a heart attack in Arthur. Dr. Strader’s basis for

his opinion about what will happen upon administration of a 500-mg bolus dose of

midazolam is based solely on his clinical experience with dosages of 2-5 mg of

midazolam that he has used to sedate his own cardiac patients into a deep, but

arousable, sleep for invasive cardiac procedures. Dr. Strader admitted that he had

no experience with a 500-mg dose of midazolam, or any dose larger than 20 mg.

See Glossip, 135 S. Ct. at 2742 (stating that “[t]he effect of a small dose of

midazolam has minimal probative value about the effect of a 500-milligram

dose.”).

In his deposition, Dr. Strader conceded that the medical literature that he

relied upon did not address such large doses of midazolam nor did it expressly

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state that midazolam should not be used on patients with CAD. Indeed, Dr. Strader

admitted that he uses midazolam “in patients with coronary disease all the time in

routine clinical practice.” Dr. Strader testified that he has only observed about 24

patients (some his cardiac patients and some not) who were sedated with

midazolam suffer a heart attack. If compared to the approximately 3,500 invasive

cardiac procedures that Dr. Strader has performed, that works out to less than 1%

of all his cardiac patients.

Nonetheless, we will assume that Arthur likely has CAD and 500 mg of

midazolam will cause Arthur “likely” to have a drop in blood pressure and then

suffer a heart attack. The most critical, but most speculative, part of Dr. Strader’s

opinion is his time-gap theory. According to Dr. Strader’s best guess, a 500-mg

dose of midazolam could cause sedation in three to five minutes, but the heart

attack will occur “immediately” after the drop in blood pressure, which he testified

happens in one to two minutes with small clinical doses of midazolam. Dr.

Strader’s time gap is imprecise and even, under one reading of his own testimony,

it may take two minutes for the blood pressure to drop but the sedation may occur

in three minutes, leaving one minute for the heart attack to start before sedation.

The district court did not abuse its discretion in concluding this time-gap part of

Dr. Strader’s testimony was speculative and unreliable.

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Here, Dr. Strader admitted he had used midazolam only for sedation, an

entirely different goal than what the ADOC uses it for: anesthesia. And sedation,

as Dr. Kaye testified, is different from anesthesia– it is a lighter form of

unconsciousness. Dr. Strader is not an anesthesiologist. While Dr. Strader

testified that he was aware that midazolam was approved for use in “anesthesia,”

and he “thinks some anesthesiologists use it for that purpose,” Dr. Strader did not

have “any direct knowledge of what they do.” The midazolam package insert

corroborates this difference between sedation and anesthesia, noting that while

“sedation” may take 3-5 minutes, use of midazolam as an anesthetic induction

agent can take as little as 2 minutes without narcotic premedication.27 Even Dr.

Strader acknowledges it can take up to two minutes for the blood pressure drop to

occur, with the heart attack beginning thereafter.

Moreover, it is uncontroverted that midazolam’s sedative or anesthetic effect

is dose-dependent, meaning that the effects of midazolam are stronger and occur

more quickly with an increase in the dosage. Dr. Strader could not give an opinion

about how long it would take a person to be rendered unconscious after being

given a 500 mg dose of midazolam because that is “outside [his] realm of

practice.”

27

We recognize that Dr. Buffington stated in his rebuttal declaration that a rapid infusion of

midazolam could result in induction of anesthesia in as little as 30 seconds. We need not rely on

his testimony, however, because Dr. Strader has no expertise in doses of midazolam for

anesthesia or anesthesia at all.

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As to his time gap estimate, Dr. Strader only extrapolated from his clinical

practice of 2-5 mg of midazolam as to the onset of both the sedative and

hemodynamic effects of 500 mg of midazolam. Arthur is correct that, in certain

situations, opinions based on extrapolations from available data are permissible.

Glossip, 135 S. Ct. at 2740, 2741 (explaining that “because a 500-milligram dose is

never administered for a therapeutic purpose, extrapolation was reasonable.”). But

merely because extrapolation may be reasonable in some circumstances, does not

mean that all extrapolated opinions are reliable.

Simply put, Dr. Strader presented only speculative evidence regarding the

first number in his attempt at a time-gap measurement. Indeed, when asked how

long it would take to render a patient unconscious using a 500-mg dose of

midazolam, he was never able to provide an answer, acknowledging that this was

“outside [his] realm of practice.” The problem for Arthur is not that Dr. Strader

engaged in extrapolation, it is that Dr. Strader did not have sufficient information

to extrapolate from. In other words, while an opinion based on extrapolation is

allowed, there must be some basis for that extrapolation. While experts

“commonly extrapolate from existing data . . . nothing in either Daubert or the

Federal Rules of Evidence requires a district court to admit opinion evidence that is

connected to existing data only by the ipse dixit of the expert.” Joiner, 522 U.S. at

146, 118 S. Ct. at 519. Rather, the district court is allowed to “conclude that there

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is simply too great an analytical gap between the data and the opinion proffered.”

Id.

When carefully analyzed, it is apparent that the methodology Dr. Strader

used to reach his opinion regarding the time “gap” between the hemodynamic and

sedative effects of midazolam was not reliable, nor was Dr. Strader qualified to

testify competently as to these matters. See Kilpatrick, 613 F.3d at 1335. Thus,

the district court did not abuse its discretion in ruling that Dr. Strader’s ultimate

opinion that Arthur was likely to suffer a heart attack upon administration of 500-

mg of midazolam before being rendered unconscious was speculative, inadmissible

under Daubert, and insufficient to meet Arthur’s burden.

Without Dr. Strader’s opinion, Arthur had no evidence whatsoever to meet

his burden of demonstrating that, as applied to him, Alabama’s current lethal

injection protocol was “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 and internal quotation marks omitted). Thus, there was no genuine

dispute of material fact on this “as-applied” claim, and the district court properly

granted summary judgment for the ADOC.

But even if Dr. Strader’s opinion as to the time gap should have been

admitted, it does not change the fact that Arthur has not met his burden to show a

known and available alternative method of execution (for him with his health

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concerns) that “significantly reduce[s]” a substantial risk of severe pain in Arthur.

See id. (internal quotation marks omitted).

XVII. EQUAL PROTECTION CLAIM ABOUT

CONSCIOUSNESS ASSESSMENT

Arthur argues that the district court erroneously applied Eighth Amendment

law from Baze and Glossip to his distinct Fourteenth Amendment Equal Protection

claim. Arthur claims that members of the ADOC’s execution team (1) did not

perform the consciousness assessment properly; and (2) were not medically or

adequately trained on the consciousness assessment, which requires they pinch

inmates with enough force to “gauge anesthetic depth.” Arthur contends that, if

Alabama is to use a consciousness assessment as part of its execution protocol, the

assessment should be performed adequately.

At trial, the parties presented conflicting evidence as to whether the ADOC

execution team had adequately performed the consciousness assessment at past

executions. The district court made a factual finding that the testimony from

ADOC’s witnesses were to be afforded more weight and, accordingly, it found that

the assessment had been adequately performed “in every instance” based on ample

evidence. The district court’s findings were not clearly erroneous.28

28

To the extent that Arthur argues that the ADOC employees disagreed on how the results of a

consciousness check should have been communicated to the warden, the point is immaterial

because the ADOC-employee witnesses testified that an inmate never gave a reaction after the

consciousness assessment was performed.

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Relying on language from Baze and Glossip, the district court also

determined that the Eighth Amendment does not require that “sophisticated”

medical training and standards be employed in a consciousness assessment during

an execution. Summing up, the district court wrote that:

Arthur’s attempt to apply a medical standard of care to execution

procedures and training for them, in this case, procedures that are not

required by the Eighth Amendment, does not state a plausible equal

protection claim. This principle is applicable to Arthur’s Equal

Protection claim challenging the “adequacy” of the consciousness

assessment and the training therefor, including the force used in the

pinch test.

The district court did not err in rejecting the training portion of Arthur’s

Equal Protection claim. Arthur’s arguments ignore the district court’s explicit

factual finding that “the consciousness assessment has been adequately performed

in every instance in which it was required, [and] no deficiency in training, practice,

or procedure is found,” which led to the court’s conclusion of law that the ADOC

had not “otherwise deviated substantially from its execution protocol.” (Emphasis

added).

Moreover, we discern no error in the district court’s application of Baze and

Glossip to Arthur’s Equal Protection claim. As we previously explained in our

2012 opinion, the crux of Arthur’s Equal Protection claim was whether “Alabama

has substantially deviated from its execution protocol in a manner that significantly

reduces inmate safeguards” and whether this “reduction in safeguards burdens his

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right to be free from cruel and unusual punishment.” Arthur, 674 F.3d at 1263.

The district court’s conclusions regarding whether Alabama had substantially

deviated from its execution protocol thus implicates Arthur’s right to be free from

cruel and unusual punishment. As to this issue, the Equal Protection question

necessarily intertwines with Eighth Amendment principles.

To satisfy Arthur, all ADOC execution team members must pinch inmates

with approximately identical force and pinch as hard as they can because this is the

standard used in a medical setting. But this is not what the Constitution requires.

In Baze, the petitioners faulted Kentucky’s protocol for lacking a system to

monitor the prisoner’s anesthetic depth. 553 U.S. at 58-59, 128 S. Ct. at 1536.

Although Kentucky had other safeguards in place, including “visual inspection” by

the warden and deputy warden of whether the inmate was unconscious, the

petitioners requested that “qualified personnel . . . employ monitoring equipment,

such as a Bispectral Index (BIS) monitor, blood pressure cuff, or EKG to verify

that a prisoner has achieved sufficient unconsciousness before injecting the final

two drugs.” Id. at 59, 128 S. Ct. at 1536. The petitioners claimed that visual

inspection by the warden and deputy warden “is an inadequate substitute for the

more sophisticated procedures they envision.” Id. The Supreme Court rejected the

petitioners’ argument, writing that “these supplementary procedures, drawn from a

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different context, are [not] necessary to avoid a substantial risk of suffering.” Id. at

60, 128 S. Ct. at 1536.

And in Glossip, the Supreme Court pointed to its conclusion in Baze that

“although the medical standard of care might require the use of a blood pressure

cuff and an [EKG] during surgeries, this does not mean those procedures are

required for an execution to pass Eighth Amendment scrutiny.” 135 S. Ct. at 2742.

Thus, the Glossip Court concluded, “the fact that a low dose of midazolam is not

the best drug for maintaining unconsciousness during surgery says little about

whether a 500-milligram dose of midazolam is constitutionally adequate for

purposes of conducting an execution.” Id.

We leave for another day the question of whether an additional safeguard

such as Alabama’s consciousness assessment is constitutionally required under the

Eighth Amendment. It is enough that the district court found that Alabama does

conduct the consciousness assessment as part of its lethal injection protocol, and

the Supreme Court has made clear that the safeguards implemented during an

execution need not match a medical standard of care. See Baze, 553 U.S. at 58-60,

128 S. Ct. at 1536; Glossip, 135 S. Ct. at 2742. Thus, whether the execution team

at Holman pinches inmates with the same level of force used during medi

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