Opposition Brief — Russell Bucklew, Petitioner v. Anne L. Precythe, Director, Missouri Department of Corrections, et al.

Supreme Court briefMar 16, 2018

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Nos. 17A911, 17-8151

IN THE

Supreme Court of the United States

RUSSELL BUCKLEW,

Petitioner,

ANNE PRECYTHE, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

U.S. Court of Appeals for the Eighth Circuit

Application for a Stay of Execution

RESPONDENTS’ APPENDIX

JOSHUA D. HAWLEY

Attorney General

D. John Sauer

First Assistant and Solicitor

Joshua M. Divine

Michael Spillane

Counsel of Record

Office of the Attorney General

207 W. High Street

P.O. Box 899

Jefferson City, MO 65102

(573) 751-3321

Mike.Spillane@ago.mo.gov

Counsel for Respondents

IN THE SUPREME COURT OF THE UNITED STATES

RUSSELL BUCKLEW,

Petitioner,

ANNE PRECYTHE, et al.,

Respondent.

)

Nos. 17A911, 17-8151

EXHIBIT LIST INDEX

Resp.Ex.1: Part 1 of Dr. Zivot’s Deposition and Exhibits. ......................................... 1a

Resp.Ex.2: Part 2 of Dr. Zivot’s Deposition and Exhibits. ..................................... 261a

Resp.Ex.3: Part 3 of Dr. Zivot’s Deposition and Exhibits. ..................................... 414a

Resp.Ex.4: Article Relied on by Dr. Zivot. .............................................................. 563a

Resp.Ex.5: Dr. Antognini’s Deposition. ................................................................... 573a

Resp.Ex.6: Memorandum in Support of Summary Judgment. .............................. 689a

Resp.Ex.7: Reply in Support of Summary Judgment. ............................................ 712a

Resp.Ex.8: Order Granting Summary Judgment. .................................................. 747a

Resp.Ex.9: Order Denying Rule 59(e) Motion. ....................................................... 760a

Resp.Ex.10: Panel Decision in Bucklew v. Precythe, 17-3052. ............................... 765a

Resp.Ex.11: 2008 Submission by Bucklew to the Eighth Circuit for

Funding to Pursue an As-applied Eighth Amendment Challenge. ............ 789a

Resp.Ex.12: Bucklew’s Fourth Amended Complaint.............................................. 820a

Resp.Ex.13: Affidavit from Defendants Stating that Defendants

will not Place Bucklew Fully Supine............................................................ 880a

Resp.Ex.14: Bucklew’s Reply Brief. ....................................................................... 882a

Resp.Ex.15: Order Granting Bucklew an Extension of Time to

Petition for Certiorari. .................................................................................. 916a

Resp.Ex.16: Article Describing Anesthesia EEG Metrics. ..................................... 918a

Resp.Ex.17: 9-1 Order Denying Stay Application. ................................................. 927a

Resp.Ex.18: Bucklew’s Opening Brief. .................................................................... 928a

Resp.Ex.19: Deposition of Matthew Briesacher. .................................................... 998a

March 16, 2018.

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 1

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

RUSSELL BUCKLEW,

Plaintiff,

CASE NUMBER:

4:14-CV-8000-BP

vs.

GEORGE A. LOMBARDI,

DAVID A. DORMIRE,

And

TERRY RUSSELL,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - DEPOSITION OF

DR. JOEL B. ZIVOT, MD, FRCP

MARCH 8, 2017

SCHEDULED AT 12:30 P.M. (E.S.T)

AT THE LAW OFFICES OF

KILPATRICK TOWNSEND & STOCKTON, LLP

1100 PEACHTREE STREET, NE

SUITE 2800

ATLANTA, GEORGIA 30309

DTI JOB NUMBER:

REPORTED BY:

AT-117942

PAULA S. PARRIS, CCR-B-1664

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RUSSELL BUCKLEW v. GEORGE LOMBARDI, et al.

0001a

Resp. Ex. 1

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 1

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 2

A P P E A R A N C E S

ON BEHALF OF THE PLAINTIFF:

Kathleen Carlson, Esquire

-andRaechel Bimmerle, Esquire

SIDLEY AUSTIN, LLP

One South Dearborn

Chicago, Illinois 60603

Voice: 312-853-7725

E-mail: kathleen.carlson@sidley.com (Ms. Carlson)

rbimmerle@sidley.com (Ms. Bimmerle)

ON BEHALF OF THE DEFENDANTS:

Michael Spillane, Assistant Attorney General

Post Office Box 899

Jefferson City, Missouri 65102

Voice: 573-751-1307

E-mail: mike.spillane@ago.mo.gov

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RUSSELL BUCKLEW v. GEORGE LOMBARDI, et al.

0002a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 2

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 3

I N D E X

Witness

Dr. Joel B. Zivot, MD, FRCP

Examination by Mr. Spillane, page 6

Examination by Ms. Carlson, page 102

Re-examination by Mr. Spillane, page 104

Signature reserved, page 105

Court Reporter's Disclosure Statement, page 107

- - -

Exhibits

Defendants'

Exhibit Number 1, Missouri Department of Corrections

Preparation and Administration of Chemicals for Lethal

Injection, identified on page 6

Exhibit Number 2, Dr. Zivot Supplemental Report,

identified on page 7

Exhibit Number 3,

page 7

Dr. Zivot Affidavits, identified on

Exhibit Number 4, Dr. Antognini Supplemental Report,

identified on page 7

Exhibit Number 5, Dr. Antognini Original Report,

identified on page 8

Exhibit Number 6, Dr. Zivot Article, "Why I'm for a

Moratorium on Lethal Injections." USA Today, Dec. 15,

2013, identified on page 8

Exhibit Number 7, Dr. Zivot Article, "Lethal Injection

Explained." CNN, Jan. 18, 2017, identified on page 9

(Exhibit index continued on next page.)

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CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 3

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 4

Exhibits (continued)

Defendants'

Exhibit Number 8, Dr. Zivot Article, "The Slippery Slope

from Medicine to Lethal Injections." Time, May 2, 2014,

identified on page 9

Exhibit Number 9, Dr. Zivot Article, "Lethal Injection:

States Medicalize Execution." 49 U. Rich L. Rev., 711,

March 2015, identified on page 9

Exhibit Number 10, Dr. Zivot Article, "The Absence of

Cruelty is Not the Presence of Humanness." Philosophy,

Ethics and Humanities in Medicine, 2012, identified on

page 10

Exhibit Number 11, Dr. Zivot Article, "Too Sick to be

Executed: Shocking Punishment and the Brain." 85

Fordham L. Rev., 697, Nov. 2016, identified on page 10

Exhibit Number 12, Dr. Zivot Article, "The White Coat:

Veil for State Killing?" Medpage Today, Aug. 17, 2014,

identified on page 10

Exhibit Number 13, Dr. Zivot Interview, "Timeline

Described Frantic Scene at Oklahoma Execution." New York

Times, May 1, 2014, identified on page 11

Exhibit Number 14, Dr. Zivot Interview, "Florida's

Gruesome Execution Theater." Washington Post, March 19,

2014, identified on page 11

Exhibit Number 15, Dr. Zivot Interview, "Oklahoma Wants

to Reinstate Gas Chamber, and Experts Say it's a Bad

Idea." Huffington Post, Feb. 12, 2015, identified on

page 11

Exhibit Number 16, Dr. Zivot Interview, "The Harsh

Reality of Execution by Firing Squad." Time, March 12,

2015, identified on page 13

Exhibit Number 17, Eleventh Circuit Decision, Gissendaner

v. Commissioner, Georgia Dept. of Corrections, 15-10797,

March 2, 2015, identified on page 13

(Exhibit index continued on next page.)

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CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 4

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 5

Exhibits (continued)

Defendants'

Exhibit Number 18, Affidavit of Dr. Zivot in the

Gissendaner case, identified on page 14

Exhibit Number 19, Florida Supreme Court Decision, Davis.

v. Florida, SC14-1178, identified on page 14

Exhibit Number 20, Polk County, Florida, Circuit Court

Decision, State v. Davis, CF94-001248-XX, identified on

page 15

Exhibit Number 21, Evidentiary Hearing Testimony of Dr.

Zivot in Davis v. Florida, identified on page 15

Exhibit Number 22, Florida Supreme Court Decision, Henry

v. Florida, SC14-398, identified on page 15

Exhibit Number 23, Motions Including (Dr. Zivot Affidavit

Circuit Court of Broward County Florida. State v. Henry,

87-18628CF10A, identified on page 16

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DEFENDANT'S EXHIBIT 1

PAGE 5

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 6

P R O C E E D I N G S

(Wednesday, March 8, 2017, Atlanta, Georgia, 12:38 p.m.)

(Exhibit Numbers 1-23 were marked for

identification prior to the deposition.)

(Witness sworn by court reporter.)

- - Whereupon,

DR. JOEL B. ZIVOT, MD, FRCP

being duly sworn, was examined

and testified as follows:

EXAMINATION

BY MR. SPILLANE:

Dr. Zivot, I'm Mike Spillane, from the

Missouri Attorney General's office.

I wanted to start

out by talking about this list of exhibits we have in

front of you.

and have you identify them.

something you'll be familiar with.

have is Exhibit 1, which is the Missouri Execution

Protocol.

And I wanted to go through real quickly

I think everything here is

The first thing I

I assume you're familiar with that.

(Exhibit Number 1 was identified

for the record.)

THE WITNESS:

BY MR. SPILLANE:

Oh, right.

This -- this is

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DEFENDANT'S EXHIBIT 1

PAGE 6

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 7

That's the exhibit list, and then the first

I see.

-- is the Missouri--

(Reviewing).

Right.

one --

Yes.

And then the second one is your

Supplemental Report, which I assume you're familiar with.

(Exhibit Number 2 was identified

for the record.)

THE WITNESS:

BY MR. SPILLANE:

Yes.

And the third one is a group that I've

stapled together of three Affidavits that you gave in

this case.

And I assume you're familiar with those.

(Exhibit Number 3 was identified

for the record.)

THE WITNESS:

BY MR. SPILLANE:

Okay.

(Reviewing).

Yes.

Fourth thing is Dr. Antognini's

Supplemental Report.

(Exhibit Number 4 was identified

for the record.)

THE WITNESS:

obviously.

BY MR. SPILLANE:

I -- I'm skimming these,

So if you want me to --

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DEFENDANT'S EXHIBIT 1

PAGE 7

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 8

Right.

Yeah, yeah.

I mean, you -- I'm

just asking if you've -- if you've read Dr. -- and I'll

represent to you that it's Dr. Antognini's report and

you're familiar with his report.

Yes.

And then that was the supplemental.

The

second one is his original report, which is Exhibit 5,

and I assume you have read that and are familiar with it,

if that is his report.

(Exhibit Number 5 was identified

for the record.)

THE WITNESS:

(Reviewing).

Yes.

BY MR. SPILLANE:

authored.

Today, and it's titled "Why I'm for a Moratorium on

Lethal Injections."

and are familiar with it.

Okay.

Next thing is an article you

I have it labeled as Exhibit 6.

It's in USA

I assume you remember writing that

(Exhibit Number 6 was identified

for the record.)

THE WITNESS:

BY MR. SPILLANE:

Okay.

Yes.

The next one is a piece you did for

CNN, Exhibit 7, titled "Lethal Injection Explained."

assume you're familiar with that.

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DEFENDANT'S EXHIBIT 1

PAGE 8

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 9

(Exhibit Number 7 was identified

for the record.)

THE WITNESS:

BY MR. SPILLANE:

All right.

Yes.

The next one is another article

you authored for Time, and it's Exhibit 8, and it's "The

Slippery Slope From Medicine to Lethal Injection."

assume you're familiar with that.

(Exhibit Number 8 was identified

for the record.)

THE WITNESS:

BY MR. SPILLANE:

Okay.

Yes.

The next one is an article that you

wrote in the University of Richmond Law Review, called

"Lethal Injection: States Medicalize Execution", Exhibit

I assume you wrote that and are familiar with it.

(Exhibit Number 9 was identified

for the record.)

THE WITNESS:

BY MR. SPILLANE:

Yes.

The next one is an article you wrote in

Philosophy, Ethics and Humanities in Medicine, I've

labeled Exhibit 10, and it's titled "The Absence of

Cruelty is Not the Presence of Humanness, Physicians and

the Death Penalty in the United States."

I assume you're

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DEFENDANT'S EXHIBIT 1

PAGE 9

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 10

familiar with that.

(Exhibit Number 10 was identified

for the record.)

THE WITNESS:

BY MR. SPILLANE:

Okay.

Yes.

The next one is an article which you

authored in the Fordham Law Review.

It is -- I've

labeled it Exhibit 11, and it specifically discusses Mr.

Bucklew's case to a certain extent, and it's called "Too

Sick to be Executed: Shocking Punishment and the Brain."

(Exhibit Number 11 was identified

for the record.)

THE WITNESS:

Yes.

BY MR. SPILLANE:

Are you familiar with that?

Yes.

The next article I have is Exhibit 12.

It's written in a document -- i a publication called

Medpage Today, Public Health and Policy, and it's called

"The White Coat: A Veil for State Killing?"

And I assume that you're familiar with that

as you are the author of that article.

(Exhibit Number 12 was identified

for the record.)

THE WITNESS:

Yes.

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DEFENDANT'S EXHIBIT 1

PAGE 10

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 11

BY MR. SPILLANE:

Okay.

The next one is an interview, I

believe you gave, in the New York Times.

And it is

Exhibit 13, and it is called "Timeline Describes Frantic

Scene at Oklahoma Execution."

giving that interview and are familiar with its contents.

And I assume you recall

(Exhibit Number 13 was identified

for the record.)

THE WITNESS:

BY MR. SPILLANE:

Okay.

Yes.

The next one is another interview

that you gave for the Washington Post, and it's called

"Florida's Gruesome Execution Theater."

you're familiar with that and recall giving the

interview.

And I assume

(Exhibit Number 14 was identified

for the record.)

THE WITNESS:

BY MR. SPILLANE:

Okay.

Yes.

The next one is an interview you

gave for a publication.

It's listed as Exhibit 15, and it says -- it's titled

"Oklahoma Wants to Reinstate the Gas Chamber, and Experts

Say it's a Bad Idea."

I believe it's called Crime.

(Exhibit Number 15 was identified

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DR. JOEL B. ZIVOT, M.D.,

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Page 12

for the record.)

THE WITNESS:

this.

BY MR. SPILLANE:

Well, let me see if I can refresh your

recollection.

I don't -- I don't recall

I see -- I see my name here, but I don't

recall this publication.

Right.

So I don't know.

You're -- the -- the quotation that

you supposedly gave was on page 2 of 6, and you talk

about nitrogen hypoxia.

recollection?

Does that refresh your

I see that, yes.

Okay.

Do you remember giving that

interview now, about nitrogen hypoxia, or speaking about

it?

I do.

Okay.

I just don't recognize the name of this

publication.

Right.

Kind of an odd name. Crime.

Yeah.

Oh, you know what, I'm absolutely wrong.

The publication is the Huffington Post, and Crime is part

of the title, I guess.

The Crime section of Huffington

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DEFENDANT'S EXHIBIT 1

PAGE 12

DR. JOEL B. ZIVOT, M.D.,

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Page 13

Post.

I see.

So I apologize.

your recollection?

Yes.

Okay.

So now does that refresh

The next thing I have is -- again,

it's a Time interview, and it's called "The Harsh Reality

Of Execution by Firing Squad," and you gave a little

interview for that.

And I don't know if you recall that.

(Exhibit Number 16 was identified

for the record.)

THE WITNESS:

BY MR. SPILLANE:

Okay.

Yes.

Seventeen is an opinion of the

Florida Supreme Court, in a case called Gissendaner --

I'm sorry, of the United States Court of Appeals for the

Eleventh Circuit, in a case called Gissendaner versus

Commissioner.

case.

And I believe you gave evidence in that

Do you recall giving evidence in that case

and the Supreme Court opinion?

Circuit opinion.

Excuse me, the Eleventh

(Exhibit Number 17 was identified

for the record.)

THE WITNESS:

I don't -- I -- I recall the

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PAGE 13

DR. JOEL B. ZIVOT, M.D.,

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Page 14

case.

I would have to, you know, look to

familiarize myself again but, yes, I recall the

case.

BY MR. SPILLANE:

The next document I have is Exhibit 18, and

it is an Affidavit which you gave in the Gissendaner

case.

Do you recall giving that now, the Affidavit --

Yes.

-- and the contents of it?

(Exhibit Number 18 was identified

for the record.)

BY MR. SPILLANE:

The next is Exhibit 19, which is a Florida

Supreme Court opinion in a case called Davis v. Florida.

Uh-huh (affirmative).

(Exhibit Number 19 was identified

for the record.)

BY MR. SPILLANE:

Do you recall participating in that case?

Yes.

Okay.

And then the next thing after that

is Exhibit 20, which is an order of the Circuit Court

denying the stay of execution -- well, I guess it's what

they call the Circuit Court.

Florida, denying the stay of execution in the Davis case.

The trial level court in

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DR. JOEL B. ZIVOT, M.D.,

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(Exhibit Number 20 was identified

for the record.)

BY MR. SPILLANE:

Do you recall that?

Yes.

Okay.

Exhibit 21 is your testimony that

you gave in the Davis case, and I believe your testimony

actually starts at page 19 of the transcript I've handed

you.

(Exhibit Number 21 was identified

for the record.)

THE WITNESS:

that.

BY MR. SPILLANE:

testimony?

Yes.

Okay.

Yeah.

(Reviewing).

Yes, I see

And you recall giving that

The next thing I have is a Florida

Supreme Court Decision in a case called Henry v. State of

Florida, in which you gave evidence.

case?

Do you recall that

(Exhibit Number 22 was identified

for the record.)

THE WITNESS:

Yes.

BY MR. SPILLANE:

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DR. JOEL B. ZIVOT, M.D.,

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Page 16

All right.

And do you recall this decision

at all?

Not specifically.

Okay.

The next thing I have is Exhibit 23.

And if you -- it is a pleading that was filed by Mr.

Henry in the State of Florida.

back of it, attached to it is an Affidavit that you gave

in the case.

at?

And if we flip to the

Do you recall that Affidavit I'm looking

I think it's farther back.

(Exhibit Number 23 was identified

for the record.)

THE WITNESS:

BY MR. SPILLANE:

Okay.

Yes.

Now I'm going to ask you something

specifically about your report.

When you listed the

interviews and such that you did in your report, which is

Exhibit 2, you referred to an interview that you gave

with Dahlia Lithwick, which was a podcast for something

called Slate.

Do you recall doing that?

Yes.

Okay.

I have in my notes that at page two

-- at two minutes and thirty seconds into that podcast,

you said that the Constitution does not ask for a

punishment to be humane, but it does ask that punishment

not be needlessly cruel.

Is that accurate?

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DR. JOEL B. ZIVOT, M.D.,

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I don't have a copy of the transcript, so I

Is that consistent with your views?

Say it again.

What you said was the Constitution does not

ask for the punishment to be humane.

the punishment not be needlessly cruel.

consistent with your views?

Yes.

Okay.

It does ask that

Is that

I have at page -- excuse me, twelve

minutes and twelve seconds into that, you said, lethal

injection can never meet the requirement for not

needlessly cruel.

You didn't say being -- actually -- I

didn't misread it.

It actually says lethal injection can

never meet the punishment for -- meet the requirement for

not needlessly cruel.

Do you remember saying that?

Perhaps.

Is it consistent with your views?

Yes.

Explain, please.

Explain why lethal

injection can never meet the requirement for not being

needlessly cruel.

Lethal injection, as I've seen it

practiced, or have -- having reviewed protocols, imagines

that the chemicals that are employed can produce death in

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DR. JOEL B. ZIVOT, M.D.,

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a way that the chemicals are not able to do.

Okay.

Let me refer you to Exhibit 8, which

was an article you wrote, on page 2, and it's The

Slippery Slope From Medicine to Lethal Injection article.

And it's page 2 of that.

paragraph that says:

And I'm looking at the

(Reading:) Lethal injection is merely an

impersonation of medicine, nothing more.

scarce drugs that could serve dozens of patients in

medical need.

injection -- of the lethal injection protocol, my medical

knowledge feels more like a curse as I see mistakes that

lead to unnecessary cruelty (end of reading).

It wastes

When I study the details of lethal

Is that consistent with your view?

Yes.

And I'm going to skip down to the next

paragraph where you wrote:

was never anything other than a facade for punishment,

never not needlessly cruel (end of reading).

(Reading:) Lethal injection

Is that consistent with your views?

Yes.

All right.

Also, and I -- I don't know if

you recall this, but I'll simply step out of order here a

little bit.

refer to yourself as a vocal advocate against lethal

In your testimony in the Davis case, you

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injection.

Is that accurate?

advocate against lethal injection?

a vocal advocate.

I mean, are you a vocal

I'm not sure what you mean when you define

I don't know.

I'll come back to -- I --

I've got the quote here and when I get to it, I'll

probably ask you what you meant then.

Okay.

I would refer you now to Article -- excuse

me, to Exhibit 6.

I'm for a Moratorium on Lethal Injections.

first things I saw there is you were talking about when

you first witnessed an anesthetic, sodium thiopental,

being used.

and in a moment rendered the patient unconscious.

that accurate?

It's an article you wrote titled Why

One of the

And you described that it raced into a vein

This article was written, you know, for a

newspaper audience.

And so if you're asking me to define

what a moment means as a specific amount of time in

seconds, then I think maybe that's what we have to

discuss.

Well, tell me what you meant.

That in a -- in a short period of time.

So, I don't know, I think a moment was just meant to mean

relatively quickly.

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All right.

you wrote.

was earned through thousands of hours of study, training

and evaluation, and proof of your sound, safe and sage

practice is being endangered by the use of lethal

chemicals in injections.

Let me ask you something else

You wrote that your right to use thiopental

Is that accurate?

MS. CARLSON:

Do you have that -- are you

reading from somewhere?

MR. SPILLANE:

Yeah.

I have it written

down here, but it's also in the article if you

wish to -- let's see.

find the exact quote.

BY MR. SPILLANE:

Give me a moment and I'll

(Reading:)

My right to use sodium

thiopental was earned through thousands of hours of the

study of pharmacology, anatomy, physiology, training and

evaluation.

degree.

is to protect the public.

the hospital privileges based on proof of my sound, safe

and sage practice and a license from the Drug Enforcement

Agency (end of reading).

It was earned by the granting of a medical

It was granted by State medical boards whose job

It was validated by granting

And above that, you talk about how that --

the right to use thiopental has been taken away because

it's been used in lethal injections and is no longer

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available.

Is that accurate?

Yes.

Talking a little bit -- this may go a

little bit into your qualifications.

little bit about the thousands of hours of training and

so forth that go into your ability to use anesthetics.

Explain to me a

An anesthesiologist is a physician who has

trained in that particular specialty after having

completed four years of college and four years of medical

school.

During that time, I studied anatomy and physiology and --

and chemistry as it applies to anesthesiology.

That training is an additional four years.

At the end of that training, I write an

exam, and I have a -- I'm further examined through an

oral exam format.

Anesthesiology, which is an organization recognized by

the -- a group -- by an organization that grants

specialty certification to various medical specialties.

I submit myself to that, and having passed

those things, I'm -- I'm granted as a -- or designated as

a member of the American Board of Anesthesiology in this

case.

training, is -- is thousands of hours.

And the American Board of

And so the sum total of that time, of all that

That would include conducting many, many

surgeries, doctor?

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Anesthetics.

Well, what -- I probably misspoke.

Doing

the anesthesia during many, many surgeries?

Correct.

How many?

Well, are you asking me during my training

Yes.

or -During your training in order to

become board certified, how many anesthesias would you

have to do during surgeries?

Well, on average, it would be -- say we

could estimate four, maybe four anesthetics a day.

that would be twenty a week.

Maybe eight hundred a year, times by four would be

thirty-two hundred anesthetics in the training

experience.

Maybe eighty a month.

When you did these anesthesias, were you

required to be competent to set IV lines?

Yes.

Were you required to be competent to do

that in peripheral veins?

Yes.

Were you required to be able to do that in

central veins?

Yes.

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Would that include the femoral vein?

Yes.

Would it include the subclavian vein?

Yes.

Would it include the jugular vein?

Yes.

And how many times did you have to do that

in the period you were training to be board certified,

sir?

I would say that I did that -- in each of

those locations or in total?

Well, just tell me generally how often you

had to use a central line.

the location, between the large veins.

I won't differentiate between

Well, during my training, I would say that

I did that a hundred times, maybe two hundred times.

don't recall specifically, but it was an often enough

experience that I would do it on a regular basis.

And is that typical for persons that are

trained to be a board-certified anesthesiologist, sir?

Yes, it is.

And would it be fair to say that if you

weren't competent at that, you wouldn't have gotten

certified?

That would be one of the requirements that

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an anesthesiologist would require for certification.

All right.

Let's flip to Exhibit 13,

Frantic Scene at State Killing.

interested in.

Page 4 of 4 is what I'm

MS. CARLSON:

Did you say 13?

MR. SPILLANE:

Yes, ma'am.

BY MR. SPILLANE:

Timeline Describes Frantic Scene at

Oklahoma Execution.

Sorry, my notes didn't quote it

exactly.

Yes, sir.

Okay.

Yes.

And it earlier describes that Oklahoma had

Are we at page 4 of 4?

Four -- 4 of 4?

Yes?

said that a femoral vein had blown to explain the

allegedly -- the botched execution.

comment there.

is a big vessel, Dr. Zivot said.

however, can be tricky.

surface and is near no major artery.

you can't see it.

You can't feel it.

Oh, I'm sorry.

reading:)

can't feel it.

Let's see.

And you have a

(Reading:) The femoral vein

Finding the vein,

The vein is not visible from the

You can feel it and

Without special expertise --

You're right.

(Continues

You can't -- without special expertise, you

Without special expertise, the failure is

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not surprising (end of reading).

And so what I'm gathering here is -- from

the paragraph above that, that you're disputing

Oklahoma's assertion that the femoral vein was blown.

This was -- this -- that was --

I'm sorry.

Let me ask a better question.

I'll read the paragraph I'm thinking about.

Dr. Joel Zivot, an anesthesiologist at Emory University

School of Medicine, said that the prison's initial

account that the vein had collapsed or blown was almost

certainly incorrect (end of reading).

(Reading:)

And I want to know why you -- why you said

that.

The -- what was described was that the

catheter that was used was actually a short catheter.

And so I think that the word blown might be a bit of a

term of art.

ruptured in some way.

catheter was pulled out of the vein, was not in the vein.

And so the distinction here, I think, is perhaps what

you're asking me.

So they claimed that the vessel did not --

Yes.

And my view here is that the

That's -- I was trying to get at why

you made that conclusion.

I wasn't sure from the

article.

describing your conclusion, you say, the femoral vein is

And in the next paragraph when you're

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a big vessel.

Would that go to your reasoning in why you

concluded it wasn't blown as they used the term?

The femoral vein is a vessel of a -- of a

large caliber, and should be able to, if -- when properly

placed, take a fair amount of fluid when -- as it is

infused into the vein.

from what was described, seemed unlikely.

And so for that vein to rupture,

And let me contrast it to a peripheral

vein.

If a peripheral vein was used, that might be more

likely to rupture because it's not a big vessel, as you

describe the femoral vein?

Yes.

Okay.

Now your article at Exhibit 7, for

CNN, the thrust that I got from that article is that it's

opposition to lethal injection, and at one point you

said, if capital punishment continues, it needs to be a

better method.

article?

Not really.

Well, tell me -- tell me what you meant

Well, are you saying that that's -- I think

that's one point.

Is -- is that a fair summary of the

there.

That's one point that you made, is --

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Yeah.

-- that if lethal -- if execution

continues, it shouldn't be lethal injection.

fair point?

MS. CARLSON:

Is that a

Take your time to read the

entire article if you need to because he's asking

you a lot of questions about various articles.

THE WITNESS:

question again.

BY MR. SPILLANE:

Ask -- please ask me that

Well, let me -- let me see if I can come to

a specific point that I can ask you about then, instead

of -- please keep reading and I'll ask you about a

specific point.

(Reviewing).

I'm looking at your -- in the concluding

thing at the end of page 3 of 3.

paragraph:

practiced is an impersonation of medicine populated by

real doctors who don't acknowledge the deception.

rightness or wrongness of capital punishment remains an

open question, but it's time to reject lethal injection.

If capital punishment continues, it needs another method

(end of reading).

(Reading:)

And you begin the

Lethal injection as presently

The

Is that consistent with -- what you wrote

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there, consistent with your views?

Yes.

I'm going to go next to Exhibit 10, which

is titled The Absence of Cruelty is Not the Presence of

Humanness.

Humanness (pronouncing), actually.

Oh.

another E there.

humanness, physicians and the death penalty in the United

States.

Okay.

I thought there would be

My mistake.

Not the presence of

Are you familiar with the content of this

article?

Yes.

I'll read the last sentence in the article.

(Reading:)

If the death penalty is cruel, then attempts

to reduce cruelty by pharmacological adjustments are not

necessarily humane, or worse, create an illusion of

humanness as they are physician directed (end of

reading).

Do you agree with that analysis?

Yes.

Okay.

Now the next article I'm going to go

to is Number 11, which is the Fordham Law Review article,

Too Sick to be Executed: Shocking Punishment and the

Brain.

And I'm going to turn to page 2 of 7.

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apologize for taking a moment here, but I have a specific

quote I wanted to ask you about.

Here we go.

I'm looking at -- under Roman

Numeral II, Too Sick to be Executed.

I believe it to be

the second full sentence in the paragraph, and it's

describing Mr. Bucklew's tumors.

And it says --

all numbered --

Roman Numeral II.

No, but these are all numbered sentences.

So which number?

Which number is that?

I think these are

Well, it's -- it's right after Footnote 34.

It begins these vascular tumors.

I see.

Okay.

(Reading:)

These vascular tumors

have been present since birth and will continue to grow.

They are resistant to definitive treatment and will

eventually obstruct Bucklew's airway and kill him by

self-strangulation if he is not executed first (end of

reading).

Is that your -- do you agree with the

statement that you wrote there?

Yes.

Okay.

And I think let's shift then to your

actual Supplemental Report, which is Exhibit 2.

And if

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we go to page 8.

Just give me a moment to find 2.

Oh, I'm sorry.

Well, how about let's go to

-- let's go to page 8, paragraph 10, when you get there.

found it.

All right.

Paragraph labelled 10 at the bottom of page

This is 5.

So here's 2.

All right, I

So, I'm sorry,

This is in your report.

Bottom of page 2.

Bottom of page 8.

This is 2.

where?

Yeah.

I apologize.

I'm sorry.

If I said 2,

It's paragraph 10 at the bottom of page 8.

Okay.

All right.

(Reading:)

is progressive.

records indicate that his condition did not appear to

place him at risk of life-threatening hemorrhaging.

What you wrote there:

As already described, Mr. Bucklew's condition

As of April 2012, Mr. Bucklew's medical

My examination of Mr. Bucklew on January 8,

2017, as well as my review of recent MRI and CTI imaging

reports, form the basis of my conclusion at the -- at the

present time.

hemorrhaging, particularly under the conditions imposed

Mr. Bucklew is at risk of life-threatening

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by Missouri's execution procedure (end of reading).

So is -- is that paragraph consistent with

your earlier conclusion that if he's not executed, the

hemangioma is eventually going to strangle him?

Yes.

Okay.

9, conclusion A.

opinion that Mr. Bucklew suffers from a severe and

life-threatening form of cavernous hemangioma.

nature of Mr. Bucklew's condition, it is my medical

opinion that the vascular tumors that obstruct Mr.

Bucklew's airway will present a permanent threat to his

breathing, and that life-threatening choking episodes

will occur on an ongoing basis.

episodes occur, they will be associated with hemorrhaging

to a varying degree that will be easily visible by any

observer (end of reading).

Let's go to -- oh, let's see, page

(Reading:)

It is my professional

Given the

When these choking

Is that also consistent with your

conclusion that the hemangioma will strangle him if he's

not executed?

I think that what I said here is consistent

with my view, so, yes.

Okay.

And when that happens, then there

will also be hemorrhaging is what I take from A.

chokes, there will also be hemorrhaging.

When he

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That's my belief.

Okay.

Now I'm going to shift to Exhibit

12, which is The White Coat:

A Veil for State Killing?

Now as I take this article, it is your account of an

execution that you witnessed in the State of Georgia.

Yes.

Why would you write an account of an

execution which you witnessed in the State of Georgia?

I'm not sure I understand your question.

Well, this is -- let me ask it this way.

Did you write an article -- did you witness an execution

in the State of Georgia and write an article about it as

part of your vocal advocacy against lethal injection?

MS. CARLSON:

BY MR. SPILLANE:

Form.

You can answer it if you can understand it.

If it's too confusing, I'll try again.

asking me.

Objection.

I -- I don't really understand what you're

Why did you write the article, The White

Coat: A Veil for State Killing?

Why did I write it?

Yes, sir.

I'm -- I'm interested in the subject.

Why did you witness the execution?

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I was requested to witness it by the person

executed, Mr. Wellons.

Okay.

When we go to page 3 of 6, you

described a little bit of what you saw there.

looking at the paragraph that begins, the inmate.

believe it is the one, two, three, fourth paragraph from

the top, the fourth full paragraph.

Yes.

Okay.

And you said:

And I'm

(Reading:)

The

inmate has an apparent change in his respiratory pattern

and I assume the execution has therefore begun.

twitches strongly once, mostly on the left side of his

body.

breathing or in his movements that I could construe as

consciousness or the lack of it (end of reading).

I am looking hard now for something in his

And then you kind of move on to something

else.

I was wondering if you saw something in his

breathing that you could construe as consciousness or the

lack of it?

No.

Okay.

Next you said that a corrections

officer fainted, in the next paragraph.

collapsed.

He collapsed.

The corrections officer

All right, yeah.

And you used the word, I

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lose count when suddenly one of the corrections officers

faints and falls forward.

Okay.

I was using your word.

How long were you distracted by the

corrections officer's fainting?

I don't understand your question.

Well, later in the article, you came back

and talked more about the inmate and didn't see anything

abnormal occur.

talk about the corrections officer fainting and you

describe that.

attention was off of the inmate.

But that talk -- that happens after you

So I was wondering how long your

I don't --

MS. CARLSON:

Objection.

THE WITNESS:

I don't know how long it went

I had no watch.

Foundation.

on for.

I had no way -- if

you're asking me in matter of minutes, is that

what you're asking me, or is this a --

BY MR. SPILLANE:

Well, let me ask the question a different

way.

to the guard fainting, any change in breathing that would

indicate he was or was not conscious.

anything like that during the remainder of the execution?

Earlier you described you didn't see anything prior

Did you see

It was very hard to see much.

So all I

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could see, I was looking through a window from a

distance.

precision.

It was hard to see things with great

All right.

I'm looking at page 5 of 6, and

I'm looking at the paragraph that begins with, if the

Georgia Composite Medical Board.

Uh-huh (affirmative).

And you write there that:

(Reading:)

the Georgia Composite Medical Board or any other State

medical board refuses to be a plaintiff against the

warden for an order of mandamus to force disclosure of

the identities of physicians hired to supervise lethal

injections, then probably any resident in that state has

sufficient interest in knowing whether the men in

question are his or her doctors (end of reading).

And then in the next paragraph, you say:

(Reading:)

the warden and may name the medical board as a defendant

in whose name Mr. Jordan -- I assume -- Mr. Jones (end of

reading).

mandamus.

No, Mr. Jones is --

Mr. Jones is the defendant?

Residents may bring a relator action against

I assume that's the guard -- moves for

MS. CARLSON:

No.

Okay.

I think he's -- no.

think that misstates what the article says.

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THE WITNESS:

It's just -- he's a --

BY MR. SPILLANE:

Who is Mr. Jones?

A theoretical plaintiff.

Okay.

The citation of the case would read

Georgia Composite Medical Board, ex rel. Jones v. Warden.

So if I take this correctly, you're suggesting here that

residents of the State of Georgia should bring an action

against the warden based on what happened at this

execution.

Is that fair?

MS. CARLSON:

Objection.

THE WITNESS:

No.

Form.

That's not what I'm

saying.

BY MR. SPILLANE:

Tell me -- tell me what you mean.

The -- what's at issue is the fact that in

Georgia, physicians who participate in lethal injection,

their identity is kept secret.

to know the identity and activity of all physicians

within the State.

they choose to participate, their identity is protected,

and the medical board should demand to know what all

physicians in the State do under normal considerations

when they are practicing or holding themselves out to be

practicing medicine in any form.

And medical boards need

But these particular physicians, if

And that's my point.

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So as I understood it, you first of all

talked about the State Medical Board refusing to be a

plaintiff, and then you talked about the residents may

bring an action against the warden.

question.

Is that accurate?

I don't -- I don't understand your

All right.

You said here, residents may

bring a relator action against the warden and may name

the board as a defendant.

residents should sue the medical board because they're

not actively pursuing the physicians who participated in

the execution?

So are you saying that

MS. CARLSON:

Objection.

Form.

THE WITNESS:

This is an article that I

wrote which are my views on -- on something of

this -- in this subject.

myself out as a legal expert or as a national

advocate in some way, nor am I representing myself

as the beginning of some lawsuit that should be

brought against the State.

intention here.

BY MR. SPILLANE:

Okay.

And I'm not holding

That's not my

I'm going to go next to Exhibit 14,

which is titled Florida's Gruesome Execution Theater, in

the Washington Post.

Did you give an interview for this

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article?

Yes.

What was the point of your interview here,

sir?

What did you say?

I -- I don't recall.

Okay.

forward.

It's titled Oklahoma Wants to Reinstate the Gas Chamber,

and Experts Say it's a Bad Idea.

That's fine.

Let's -- let's move

I'm going to go to Exhibit 15, Huffington Post.

And then I'm looking at page 2, where we

start with Dr. Zivot -- Dr. Joel Zivot, assistant

professor of anesthesiology.

Are we there?

Uh-huh (affirmative).

And then it's --

Yes.

-- (Reading:)

Dr. Joel Zivot, assistant

professor of anesthesiology and surgery at Emory

University School of Medicine, told the Huff Post it is

ethically impossible for a doctor to conduct tests and

therefore reach conclusions on execution procedures.

physician is an expert in killing, and medicine doesn't

itself -- doesn't position itself intentionally in taking

a life, Zivot said.

of nitrogen gas and there's no way to ethically or

practically test if nitrogen gas is a humane alternative

He added, there's no therapeutic use

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(end of reading).

So what were you referring to in that

second paragraph there, sir, about no physician is an

expert in killing?

I'd -- I'd have to -- I -- I don't know if

I can recall the question that was asked of me at the

time.

sure I can accurately --

So without knowing the question, I'm -- I'm not

Well, let me ask you is this is accurate,

where you wrote, there's no way to ethically or

practically test if nitrogen gas is a humane alternative.

And I assume by that, you mean a humane alternative to

lethal injection.

frankly.

because that would not be my word here.

Is that accurate?

I'm not sure that I used the word humane,

That may have been what they inserted here,

Tell me what your word would be.

I would say not cruel.

So there's no way to tell if nitrogen gas

would not be cruel, is -- is that what you were saying?

Yes.

I know you just spoke about nitrogen, and

the article talks about gas chambers, so I'm guessing it

might be broader.

way to know that another gas used in an execution would

Do you have an opinion if there's any

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not be a -- would not be cruel?

I have no opinion about that.

Well, would the same reasoning that you

can't test it, therefore you can't know about nitrogen,

apply to other gases?

I -- I'd have to know the entirety of what

you're describing to know how to answer your question.

Well, you said there's no practical way to

test if nitrogen gas -- and you used the word cruel here,

so I'll use the word cruel -- is a cruel alternative.

Does that statement apply to using other gases besides

nitrogen as a replacement for lethal injection?

killing.

I -- I'm not an expert in any technique of

If you're asking me to design or describe -No, I'm not.

I'm asking if your statement

that your made about nitrogen applies to other gases.

I would have to know which gases, and the

details, to be able to answer your question.

Okay.

Let's move on to document 18, which

is your Affidavit in the Gissendaner case.

when you've -- you've gotten there.

Let me know

I've got it.

Now, I'm looking at paragraph 11 on it

looks like page 4 of 6.

(Reading:)

And what you wrote there is:

I have been informed that Kelly Gissendaner

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is a 46-year-old woman with a height of five foot ten

inches and a weight of two hundred and ten pounds.

corresponds to a body mass index BMI of 30.1 kilograms

per M squared.

Meter squared.

Thank you.

This

I didn't -- I

do not know the term.

(Continues reading:)

And puts her

in the obese category.

Intravenous access is very

difficult to obtain in obese individuals.

is also a misfactor for difficult intravenous access, as

their venous systems tend to be smaller than those of

men.

obesity and her gender, I anticipate that establishing

intravenous access will be extremely difficult.

is also a known risk factor for obstructive sleep apnea

(end of reading).

Female gender

As a result of Kelly Gissendaner's diagnosis of

Obesity

Now, did you know anything about Ms.

Gissendaner besides the information that you said in

paragraph 10 that you were told -- paragraph 11 that you

were told?

What sort of information do you --

Anything.

I mean, you said I was informed,

and then before you gave your opinion, you told in

paragraph 11 what you were informed about Ms.

Gissendaner.

Did you know anything else?

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I don't know if I understand what you're

asking, specifically.

Anything else, meaning --

Did you examine her medical records?

I can't recall.

Did you examine her?

No, I did not examine her.

I'm looking at paragraph 18.

(Reading:)

position that if the State of Georgia proceeds with the

execution of Kelly Gissendaner as outlined in the

referenced lethal injection procedures, she will suffer

an excruciating death (end of reading).

You said:

As a result of these facts, I hold the

Do you recall making that conclusion?

I see it here, yes.

But do you recall making it?

Yes.

And your signature's on the Affidavit, is

it not?

Yes.

Now is there anything in your Affidavit

about Ms. Gissendaner's physical condition except that

she's female, she's 46 years old, and she's overweight,

and overweight people tend to get sleep apnea?

I would have to review --

Okay.

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-- the entirety of this.

Okay.

And also records that I don't have here, to

remind myself.

Well, why don't you read this and tell me

if there's anything in there besides she's overweight and

she's female, and overweight female people have sleep

apnea?

So then ask me the question that you want

me to answer then.

I wanted to know if there's anything in

this Affidavit besides the information in paragraph 11

that you based your conclusion on about Ms. Gissendaner's

condition?

MS. CARLSON:

Objection.

THE WITNESS:

(Reviewing).

Form.

All right.

I've looked at this now so, please, again, I'm

sorry, ask me your question one more time.

BY MR. SPILLANE:

Is there anything in that Affidavit,

besides the information in paragraph 11, that you knew

about Ms. Gissendaner's physical condition?

No.

So you based your conclusion, at least as

far as it went to her physical condition, that she would

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suffer an excruciating death during an execution, on the

fact that she was a female and she was overweight?

MS. CARLSON:

Objection.

Form.

THE WITNESS:

There were two points that I

made here.

BY MR. SPILLANE:

Yes.

One was difficulty in obtaining IV access

and the problem of that.

Yes.

And the second was her risk for obstructive

sleep apnea based upon her BMI.

the experience of the execution of Dennis McGuire.

that was the reason why I came to my conclusions.

And then drawing from

And

But the information you had about her was

that she was five foot ten, weighed two hundred and ten

pounds, she was female, and females are prone to sleep

apnea?

No.

No, I didn't say females are prone to

sleep apnea.

Well, let me look at what you said.

I said females are -- have smaller vein

aperture, and that her weight is what puts her at risk

for sleep apnea.

You're right.

Obesity is also a known risk

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for obstructive sleep apnea.

Now did the United States District Court or

the Court of Appeals stay Ms. Gissendaner's execution?

executed?

Are you asking me if Kelly Gissendaner was

Yes.

I'm asking you first, those opinions

that I handed you --

Yeah.

-- did either --

I can't recall.

Was she executed?

Yes, she was.

Did you read any articles about her having

I don't know.

suffered an excruciating execution?

I didn't read any articles about that.

Did you write any articles about it?

No.

You wrote about the Georgia execution where

that man, Mr. Clayton Lockett, was executed.

That was based upon the narrative of

others.

Do you have any reason to believe -- well,

let me ask you this.

If I represent you -- to you that

there was an NBC article that you can find on the

internet that indicates that she sang Amazing Grace

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during the execution, would that be consistent with her

suffering an excruciating execution?

MS. CARLSON:

Objection.

Form.

THE WITNESS:

I think that the -- I can't

know, nor can anyone know, what Ms. Gissendaner

felt or didn't feel.

only speculate it.

are very flawed, generally, of -- based upon

witnesses.

I can't know that.

I can

She did not, by reports, which

The reason why I say it is, for example, in

the case of the execution that I saw, there was no

report of that in the official report that anybody

-- that any corrections officer fell on the legs

of Marcus Wellons.

didn't make it into the execution report.

I know that I saw that.

That

So the fact that she -- I think we probably

both know that the way that these things are

reported, they're reported with perhaps either a

certain style or intention.

are these reports impartial, I would say --

BY MR. SPILLANE:

impartial.

Amazing Grace during the execution?

If you're asking me

No, I'm not asking you if they're

I asked if you read a report that she sang

I -- I've heard that.

I heard that she

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sang Amazing Grace at some point.

So you were aware of that?

Yes.

How were you aware of it?

By a report in the media.

You just told me five minutes -- a moment

ago that you didn't read any reports.

No, you asked me if I read any report if

she suffered.

Oh.

If I read anything of whether she had

suffered.

that she had -- that anyone had written that she had

suffered.

part.

the media.

And the answer was I did not read any report

But that's -Okay.

That's probably a bad question on my

I should have asked you if you read any reports in

My mistake.

Let's see if we can move on to document 21,

which will be your testimony in State of Florida v.

Davis.

page 22.

I have it.

Okay.

All right.

If you'd go ahead and read that

page real quick.

I'm going to go to -- when you're ready -- to

Just where?

The beginning of Q, or just

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from the top of the page?

Just from the top, please.

(Reviewing).

Well, I'll stop you.

What I'm mainly

interested on page 22 is the one that begins with A,

well, anesthetics.

know.

And when you've read that, let me

Just that, that answer.

(Reviewing).

Okay.

When you started there on A, when you were

asked, well, it doesn't deaden pain correct, sir, you

answered, well, anesthetics, when done correctly, do take

away pain.

Which part?

Yes.

Well, pain is a -- is something that is a

Could you explain to me how that works?

Anesthetics take away pain?

How do anesthetics take away pain,

sir?

response to a stimulus that would be considered to be

generally noxious.

in an anesthetic can block the perception of that noxious

stimulus.

And certain kinds of medications used

Does that work for barbiturates such as

thiopental and pentobarbital?

No.

Okay, you said, well, anesthetics, when

done correctly, do take away pain.

When you use

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thiopental, would the people feel pain?

Barbiturates, as a class, are not

considered to be analgesic.

I understand.

When people are unconscious,

they're in a coma-like state.

me -- that's a compound question.

a surgery is conducted, put a person in a coma-like

state?

Do they -- let me -- let

Do anesthetics, before

I don't know what you mean when you say

Are they in a -- in a place where they

coma.

cannot feel noxious stimuli -- stimuli during surgery?

The interior experience under an anesthetic

is somewhat variable, but the -- the hope is that the

experience that is taking place is not noxious to a

degree that it would either cause great distress in the

moment or cause distress afterwards.

And is that what you meant when you said

anesthetics, when done correctly, do take away pain?

Anesthetics, when done correctly, can take

away pain, yes.

Go ahead.

No.

No, please go ahead.

you off.

But -- I'm sorry.

I don't want to cut

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No, I'm -- I'm done.

Okay.

And so do anesthetics, and I mean

barbiturates such as pentobarbital or sodium thiopental,

when done correctly, create a stim-- a situation in the

patient that takes away pain?

Barbiturates are not analgesic.

I understand.

That wasn't what I asked

you.

I asked you if you use thiopental as your surgical

anesthetic, do you -- do you get a level of depth there

where it takes away pain?

It's not used in that way.

Using sodium thiopental as a surgical

anesthetic?

It's not --

Before propofol?

It's not -- no, sorry.

Before propofol became in, was not sodium

thiopental the generally used surgical anesthetic in the

United States?

I need you to define for me when you say

surgical anesthetic, what you mean, or what part of the

anesthetic you intend there.

Was it commonly used as an anesthetic for

surgeries in the United States?

It was used as something called an

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induction agent, if you're familiar with that term.

Yes.

It was used as an induction agent in

combination with other agents.

What other agents?

Narcotics, benzodiazapenes, maybe

analgesics of other classes.

Well, benzodiazapenes are not analgesics,

are they?

You're correct, they're not.

Okay.

What was the thrust of the evidence

you gave in the Davis case?

you gave to the Court?

What was the opinion that

I -- I don't recall.

Would it refresh your recollection to

indicate -- if we go to page 24 and 25 of your testimony,

which you indicated that he would have an attack of acute

porphyria, severe abdominal pain, rashes, neuropathy,

burning sensation, heat and cold tolerance, alodemia,

which is sensitivity to general touching, confusion and

seizures.

Why don't you read through 24 to 26 if you

have a second there?

(Reviewing).

Okay, I've read it.

Is that a fair conclusion that you

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indicated, that if he would be executed using midazolam,

that he would have an attack of acute porphyria, which

would result in these symptoms?

say midazolam?

I don't think this was midazolam.

Yeah, it was midazolam.

Does it

And you relied on

a study of chick embryos.

Okay.

So is that consistent with your testimony

which you indicated he would have an attack of acute

porphyria if he was executed?

That was my opinion, yes.

Did you have any knowledge that he had ever

had an attack of acute porphyria in his life?

I think -- no.

Okay.

But -- no.

Ask -- whether I knew it or not

is not the question, I don't believe.

concern based upon his history.

So that was my

What history?

That he was at risk for an attack of

porphyria.

while, on the medical information.

statement, then I'm certain that I had a reason to make

it.

But I'd have to look back again.

It's been a

If I made the

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embryo study in this case?

Do you recall relying on a -- on a chick

Well, relying.

That may have been one of

the things that I reviewed.

the study.

embryos also say at its end that triazolam and midazolam

are generally listed as safe for use with people that

have porphyria?

I can't recall it.

Now, do you recall that the Florida Supreme

Let's go to -- now, let me ask you about

Did the study that you reviewed on chick

I'd have to look at it

again.

Court denied the motion for stay of execution that was

based at least in part on the claim that he would have an

acute attack of porphyria?

I believe so.

All right.

Do you recall that Mr. Davis

was executed?

I believe so, yes.

Now I'm going to ask a better question this

time.

Did you read any news reports about his execution?

I don't recall.

So you didn't -- and you didn't write any

articles about his execution?

Not that I recall.

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And the answer to this question may be no,

but if he had shown symptoms of porphyria during his

execution, such as vomiting, nausea, convulsions, that's

something that somebody would have written about, isn't

it, Doctor?

Potentially not.

MS. CARLSON:

Objection.

THE WITNESS:

I have no idea.

BY MR. SPILLANE:

Form.

If I represented to you that there was an

article in the Lakeland Florida Ledger, which is, I

believe, where the victim was from, that he showed no

signs of discomfort during his execution, would you have

any reason to disagree with that?

What, where the article was written?

The article was written by the Lakeland

Florida Ledger.

execution, as media people do, and he wrote that there

were no signs of discomfort.

disagree with that?

I assume that the author witnessed the

Do you have any reason to

Well, I think my answer is, as I've stated

before, that there is a difficulty here in what witnesses

can see, and witnesses are poor at recalling or

describing events.

wrote that article, what the basis of their opinion was,

So whether or not that person who

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I cannot know.

Okay.

So there might have been nausea and

vomiting or seizures and the witnesses might not have

reported it?

Yes, I would agree.

Let's go on to document 23.

In the same way that there was no report of

a corrections officer collapsing on the legs of Marcus

Wellons.

I'm going to find your Affidavit here,

which I think is at the tail end of Exhibit 22.

I'm looking for here is -- let's see.

paragraph 5 on the first page of your Affidavit.

And what

Starting at

MS. CARLSON:

So you said 23 first.

MR. SPILLANE:

Oh, I'm sorry.

have -- I have this.

at, 23?

I meant -- I

Is this what you're looking

MS. CARLSON:

Yeah.

MR. SPILLANE:

I apologize.

misspoken a second time.

BY MR. SPILLANE:

you, sir?

This is 23, yes?

Yes.

You said 22.

I must have

Have you got the right document in front of

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Yes.

And then I'm looking at -- your Affidavit

is at the back of it.

It starts with I, Joel Zivot,

being first sworn as follows.

What page?

It's at the -- it's at the -- if you go

back to the last three pages of the document, because

it's attached to a pleading.

Yes, I see it.

Okay.

at paragraph 5.

records of Mr. Henry, that record of his blood pressure

at various times between 1987 and 2014.

show both systolic and diastolic hypertension on many

occasions.

was present prior to age 35 (end of reading).

I'm looking at paragraph -- starting

(Reading:)

I have reviewed the medical

These records

It is of note that Mr. Henry's hypertension

And then in paragraph 6, you say:

(Reading:)

2014 that demonstrates a marginal HDL in relation to

cholesterol relationship (end of reading).

I have reviewed blood work between 2012 and

I'm going to stop you there and ask you

what you meant by a marginal HDL in relation to

cholesterol ratio.

In order to make a diagnosis of -- of an

abnormal lipid profile, the way that it can be calculated

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is by a ratio of the quantity of cholesterol that's

referred to as HDL and cholesterol referred to as LDL.

Uh-huh (affirmative).

So it would be the quantity of HDL in

comparison to quantity of LDL that would make the

diagnosis of an abnormally elevated cholesterol where it

would be problematic for the person.

Right.

And what I wanted to focus on was

what you meant by the word marginal.

Marginal, being insufficient.

So all that -- it doesn't mean that it's

anything more than a yes or no conclusion that the good

cholesterol was too low compared to the bad cholesterol?

Correct.

Okay.

(Reading:)

important risk factor in premature cardiovascular disease

and is strongly associated with dislipidemia.

Dislipidemia is an independent risk factor for coronary

artery disease (end of reading).

And it says, in the next paragraph:

Hypertension is quantitatively the most

What do you mean by risk factor for

coronary artery disease?

Coronary artery disease is a condition that

occurs in -- in the population, and there are certain

factors that when present make the likelihood of coronary

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artery disease be more the case.

of those risk factors.

cholesterol, it means that the likelihood of coronary

artery disease is increased.

Okay.

So cholesterol is one

When a person has elevated

And also, he has high blood

pressure, so that's also an independent risk factor that

meets the likelihood that he has coronary -- the risk

that he has coronary artery disease is also increased?

Yes.

Okay.

I'm going to go down to

paragraph 13, where you say: (Reading:)

the Florida lethal injection procedure will very likely

cause serious illness and needless suffering to Mr. Henry

as a consequence of the acute coronary event (end of

reading).

Does that mean a heart attack?

I don't know how -- how you define a heart

attack, so I don't know how to answer your question.

The design of

Why don't you define an acute coronary

An acute coronary event can be where one of

event?

the arteries that supply blood to the heart may become

obstructed or narrow to the point where there can be some

downstream negative effect of the heart muscle.

So as I understand what you wrote earlier,

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you didn't say that this man necessarily had coronary

artery disease, you said he had two risk factors.

blood pressure and low HDL compared to the LDL.

High

That would be -- yes, that's correct.

And based on that, you concluded:

(Reading:)

likely -- that the injection procedure will very likely

cause serious illness and needless suffering to Mr. Henry

as a consequence of the acute coronary event (end of

reading).

Mr. Henry -- let's see -- let's see, will

And that acute coronary event is going to

happen because he has these two risk factors for coronary

disease?

MS. CARLSON:

Objection.

Form and

THE WITNESS:

His blood pressure will fall,

foundation.

and it's the falling of the blood pressure that

will lead -- in the setting of narrowed aperture

arteries, that would be the mechanism for the

acute coronary event.

BY MR. SPILLANE:

artery disease?

Yes.

And you didn't know that?

But that assumes that he has coronary

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DR. JOEL B. ZIVOT, M.D.,

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heart catheterization.

There would be no way of knowing without a

That was my opinion.

But you still concluded that there would be

a substantial risk?

Mr. Henry -- in my examination of Mr.

Henry, Mr. Henry complained to me of angina.

the basis of Mr. Henry's complaints of angina, I

concluded that he very likely had coronary artery

disease.

angina in, sir?

I don't know.

Why don't you read it and show me?

Where -- where does my part begin?

Well, the whole thing is you.

Oh.

And so on

What paragraph of your report is the

I don't recall it.

It's -- you

wrote the whole thing.

Okay.

Oh, you mean when does your Affidavit

Yes.

It begins on the third to the last page.

All of that is mine here?

Yes.

being duly sworn.

begin?

Where it starts with I, Joel Zivot,

I really don't know if that's in here or

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not.

I can't say.

determine.

Well, I'll wait -- I'll wait for you to

But I -- (reviewing).

I -- I don't see it

listed here exactly, but I recall in my examination and

in my conversation with him that that's what he

complained of to me.

I know this is probably a dumb question,

but do you know why you didn't put it in the -- in the

Affidavit, explaining your opinion?

I -- I don't recall.

All right, then.

If you'd move on to --

let's go back to document 2, which is your Supplemental

Report, because I have a question about that.

for moving you all over the place.

Exhibit D when you get there.

What page?

Oh, I don't --

MS. BIMMERLE:

BY MR. SPILLANE:

I'm sorry

Why don't you go to

The last?

Yes, I think it's your last exhibit that

you attached.

See, I'm having trouble finding it too,

but I think I've got it memorized well enough to know

where it's at.

This is the one that is -- begins with the

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MRI?

About the MRI.

Look at the bottom of page

2 there.

MR. SPILLANE:

Could you hand me document

2, ma'am, because I seem to have lost it.

THE COURT REPORTER:

MR. SPILLANE:

THE COURT REPORTER:

MR. SPILLANE:

Thanks.

I'll give it right

MS. BIMMERLE:

By Exhibit D, did you mean

MR. SPILLANE:

I'm talking about the MRI

Exhibit C?

Here we go

back to you.

I've lost it in

(presenting).

Exhibit 2.

my pile.

Which one do you need?

report.

THE COURT REPORTER:

again?

I was looking over here.

you say?

Can you say that

Just what did

I didn't get it.

MS. BIMMERLE:

I just wondered if by

Exhibit D, he meant Exhibit C?

BY MR. SPILLANE:

I think I probably did.

Let me see,

because I was working from memory, and I apologize if I

got it wrong.

It's the MRI report.

It starts with 1 of

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3, and I'm looking at 2 of 3.

second -- well, it's the last big paragraph on the page.

And you said, the left vertebral artery is dominant.

aneurysm is seen --

I'm sorry.

Oh, I see.

sentence.

Okay.

said I said.

And I'm looking at the

Wait, I'm not seeing what you're seeing.

So this is the last -- the

This is not my report, by the way.

No.

No, I didn't write this.

Oh, right, you just attached it.

apologize.

Yes.

But I'm going to ask you about the meaning

of something --

Okay.

-- in it, because you attached it.

Oh, I'm sorry.

You

I thought -- is this

not -No.

At the

last thing that's said there is no vascular stains

supplying the hemangioma.

it means.

This -- in this view --

Uh-huh (affirmative).

-- they don't see any arterial -- I believe

Tell me what that is and what

it's arterial blood that they're referring to here --

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that is connected to the hemangioma as they see it in

this particular view.

anything?

I don't think there's any significance of

Now, did you have a chance to read Dr.

it.

What is the significance of that, if

Antognini's supplemental report?

What would you refer to specifically?

Paragraph 1.

Well, let's see.

Let's see, I think it is page 2 of 3.

MS. CARLSON:

The document -- you said the

supplemental, but document 5 is the initial

report.

Document 5.

MR. SPILLANE:

Then it should be document

MS. CARLSON:

Okay.

BY MR. SPILLANE:

In paragraph 5 there, Dr. Antognini talks

about rapid onset of unconsciousness.

Is it relevant to

his -- to -- to how fast unconsciousness would occur

whether or not the hemangioma itself interferes with the

normal distribution of the pentobarbital?

Ask me the question again.

Is the hemangioma itself -- is it relevant

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to how fast unconsciousness would occur, whether the

hemangioma itself, by diverting blood flow, interferes

with the normal distribution of pentobarbital that one

would expect?

MS. CARLSON:

Objection.

Form.

BY MR. SPILLANE:

You can answer it if you understand it.

I don't think it's relevant.

Did you find any evidence that the

hemangioma is the type of formation that interferes with

blood flow in the sense that it would interfere with the

normal distribution of pentobarbital?

Did I find any evidence?

Any evidence that the hemangioma itself is

-- do you know what the -- I mean, are you familiar with

the terms of a slow flow system and a fast flow system?

Yes.

All right.

And a slow flow system would be

one where the blood flow does not flow into the

hemangioma from the veins at a high rate, and therefore

would be less of an obstacle to normal circulation, and a

fast flow would be that it flows faster into the

hemangioma, and might interfere with normal circulation.

Is that a fair characterization?

That's as you characterize it.

I'm hearing

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what you're saying.

terms.

Well, you said you were familiar with the

Tell me what they mean to you.

I'm familiar from the -- from the

perspective of what is -- what Dr. Antognini -- how do

you pronounce his last name?

Antognini (pronouncing).

Antognini is saying.

So ask me the

question that you want to ask me specifically about this.

Okay.

Do you have specific evidence that

leads you to believe that the hemangioma is either a fast

flow or a slow flow system?

I don't know.

I have no evidence for it

specifically to answer the question.

So that's not part of your opinion as to

why the execution would have a substantial risk of

unnecessary pain, because you don't know?

is based on other things.

hemangioma being a fast flow system that would interfere

with normal distribution?

Your opinion

It's not based on the

Correct.

That-- that's what I was -- that's what I

was getting at.

Yes.

I didn't say it very articulately, so thank

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you for helping me.

(Off the record 2:00 p.m. - 2:24 p.m.)

BY MR. SPILLANE:

Doctor, I'm going to ask you a question

about Exhibit 1, which is the Missouri execution

protocol.

Uh-huh (affirmative).

I'm looking at the heading which is C,

intravenous line, and then paragraph 1.

that I'm looking at says:

may insert the primary IV line as a peripheral line or as

a central venous line, e.g., femoral, jugular or

subcranial, provided they have appropriate training,

education and experience for that procedure (end of

reading).

(Reading:)

And the sentence

Medical personnel

Now, as I understood your testimony

earlier, when you were training to be a board-certified

anesthesiologist, you did, I think you said, a hundred or

more central lines.

Is that accurate?

Yes.

And I also believe you said that that was

normal experience for a person who -- before they were

certified as an anesthesiologist.

Is that true?

Let me change my answer there.

that that was a high number.

I think

My own experience, because

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of my career path, which was to critical care medicine,

and I also was working in the field of cardiac

anesthesia, I focused more than the average person.

Well, let me ask a follow-up question then.

A person, in order to become a board-certified

anesthesiologist, would have to have the appropriate

training and experience to be able to insert an IV in a

-- in a -- in a central line or central vein such as the

subclavian, jugular or femoral?

In a patient.

Yes.

In the setting of an operating room.

Yes.

Not in an execution chamber.

Well, let's talk about the operating room

first.

Is the answer yes?

If -- if a person -- I'm sorry, ask me

again then.

About the operating room, is the answer to

my question yes?

And your question was?

Does a person, in order to become a

board-certified anesthesiologist, have to have the

appropriate training and education and experience to be

able to set an IV in a central line in a clinical

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situation?

Yes.

Now explain to me why an execution is

different.

Well, first of all, you said it was

different.

Tell me what you meant, because I'm not sure

I understood.

No doctor is trained to care -- to -- to

lend assistance in an execution chamber for the purpose

of execution.

obtains is suitable and can be transferrable to an

execution setting, I cannot say.

design.

So whether the training that a doctor

It's not made for that

Is there something different, physically,

about setting an IV in a central vein in an execution

setting as opposed to a clinical setting?

This protocol is silent on exactly what

would be available, what kind of conditions, what else

would be happening, for me to -- to comment.

written as a medical document, so I cannot say whether or

not it would be suitable and transferrable.

Okay.

I'll move on.

answered my question.

paragraph 6, at the top.

It's not

I -- I think you've

Okay.

You said:

Let's go to document 2, page 8,

(Reading:)

I also observed

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during my examination that Mr. Bucklew has very poor

veins in both of his arms.

suggests that establishing intravenous access in the

setting of a lethal injection will be potentially

difficult, prolonged and painful for Mr. Bucklew (end of

reading).

Poor venous visualization

Did you examine any veins except the

peripheral veins in the arms?

No.

Why not?

What veins do you mean?

The subclavian, the femoral, the jugular.

Did you look at any of those?

There is no way to look at those veins.

Is there any way to conclude, then, that it

would be difficult to set an IV in those, more so than in

the ordinary person, in Mr. Bucklew's case?

rephrase that.

Let me

That question is backwards.

Is there any way, in Mr. Bucklew's case, to

conclude that setting an IV in his subclavian, jugular or

femoral veins would be particularly difficult as it would

be particularly difficult in the peripheral veins?

I -- I can't know, because those veins are

not visible.

A certain percentage of those veins will

not be where one imags them to be anatomically.

This I

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know.

There's variations of anatomy.

I don't believe --

the way that those veins would normally be found would be

through the assistance of ultrasound.

would be the standard of care now.

That's how -- that

The execution protocol here does not

specify or contemplate the use of ultrasound as an

assistance.

establishing venous access through what's called a blind

technique.

higher failure rate than techniques with ultrasound, most

certainly.

So now, what you're now talking about, is

And blind techniques are going to have a

Let me ask you this question.

You said all

-- as I understood your answer, you believe the standard

of care now is using an ultrasound for all central lines,

including the subclavian and the femoral?

Yes.

And why do you believe that?

I --

Well, I mean, I know the jugular -- has it

always -- it's your view it has always been the standard

of care, or was there a time when the jugular required an

ultrasound, and the subclavian and the femoral, that

wasn't the standard of care?

Well, there was a time where ultrasound

wasn't available.

So at the beginning of my career,

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ultrasound was not available, and so I learned to do

these lines without ultrasound and I had a failure rate.

What was your failure rate?

It depends on the circumstance.

Sometimes,

you know -- I mean, each of those different locations

that I probably had a different failure rate, honestly.

And a complication rate too.

asking me a percentage or what are you asking me?

So I don't know if you're

Well, why don't we talk about a percentage

on the femoral, if you know?

I don't know.

It's probably now -- my

hands are mine, and so I can't speak to other people's

failure rate, how facile they may or may not be.

that in -- and I don't know, in this case, how

experienced a particular person would be, because when I

-- when you asked me before about competency or ableness

to pass a fellowship, that would be a minimum standard.

And so many of those people who go on to their careers

don't actually perform these lines except during their

training, and may also increasingly lose the ability to

do them later on in their career.

Okay.

I think

And the question I asked you was

what your failure rate was during training without using

ultrasound on the femoral vein.

Well, I probably would miss them sometimes

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a third of the time.

I would not be able to get them.

And did you get better?

I got better, yes.

What was it before ultrasound -- before you

started using ultrasound all the time, towards the end of

the period when you were still doing it without

ultrasound, what was your failure rate then?

I mean, I have to -- it's hard to recall,

honestly, but I would say that maybe, I don't know, ten

percent of the time I would fail.

ten percent of the time?

And what would you do when you missed that

Well, I might try to go to the other side.

If I failed once, I might go to the other side.

Uh-huh (affirmative).

Or I would ask a more experienced person to

I'm going to test your memory here.

try.

Did

you ever miss on both sides?

Sure.

What percentage?

I don't know.

probably.

And -- go ahead, I'm sorry.

Well, because I would -- are you asking me

A small percentage,

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as a trainee?

how about both.

right before you were board certified, and then right

before you started using ultrasound.

Well, as you are board cert -- well, just

Both before you were board certified,

Well, I think that when you're training,

really there's an obligation to defer to senior people

sooner.

it on the second or third attempt or fourth attempt, but

because you failed, it's really incumbent upon to you to

pass it off to a senior person.

So if you fail one time, you know, you may get

So it may be that because you -- and it's

kind of a -- let me be clear about failure.

So there's

ultimate failure, where no matter how many times you try,

you will not succeed.

failure, so it may take you two, three, five, ten times

to ultimately succeed.

experiences.

And then there are gradations of

So those are different kinds of

I can tell you that once ultrasound became

available, I switched to using it, because I recognized

that -- that success without ultrasound may involve many

attempts at cannulation that would be failed, but

ultimately I might be able to succeed.

subject a patient to multiple pokes, I would use

ultrasound instead.

So not wanting to

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Again, I'm going to test your memory.

During your training, when you -- if you deferred to an

experienced surgeon --

Not a surgeon.

An anesthesiologist, after

one of the one-third of the times that you initially

missed the femoral stick, did the surgeon -- did the

experienced surgeon, in your experience -- in your

recollection -- ever miss?

The experienced -MS. CARLSON:

Objection.

Form.

BY MR. SPILLANE:

In your recollection.

Anesthesiologist.

I keep saying that and I

apologize.

Did they ever miss?

After -- after you said,

hey, Doctor, you have experience, on this one, can you

get this one for me, do you ever remember them missing?

Yes.

How many times?

I can't -- not often.

Not often.

failures.

establish a central line, because you talked about

gradations and then total.

Let's talk about total

A total failure, I assume, is when you fail to

I assume by total failure,

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you mean you completely were not able to get a central

line.

In your recollection, in your entire

practice, both before and after you were certified, about

what percentage do you recall being a total failure?

In which position?

Let's talk femoral.

The problem with lumping people -- lumping

this as a percentage is that there are certain kinds of

patients that I would know would be very likely to have

more failure than other kinds.

catheters in the femoral position before, people who have

had surgery, people who have had other kinds of cohesive

conditions, people who have abnormalities in the clotting

of blood.

they would be highly likely to fail.

So people who have had

So there would be one category of people where

Then there would be other categories of

people that have a likelihood of being less so because

they've never had a catheter, because they have no other

medical problems.

something like that and, you know, and they're not obese

and they're not -- they have on vascular disease.

it's a bit -- I worry that by answering your question as

you ask it, I'll create a false impression of an overall

success or failure rate that really is more patient

Maybe they're a victim of trauma or

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specific.

Okay.

That's fair.

And I'm -- then I'm

going to go back and follow up with something I asked you

about Mr. Bucklew.

is we're unavailable to evaluate whether or not he would

have a specific problem with his central veins, because

that's just not the kind of thing you can know with the

information you have now.

characterization of your earlier answer?

As I understood your answer earlier,

Is that a fair

Yeah.

Yes, I wouldn't be able to know.

So there's no -- we don't know if there's a

specific risk factor out there like you described, like

somebody who had been in -- had gotten a central line

many times in their femoral or something like that?

Well, except again, that now we're talking

about a category of a person who is to be executed.

that's a different kind of person.

trained to start intravenouses in people who are going to

be executed, and no physician is.

All right.

And I -- I'm not

I'm going to go down to --

let's see, paragraph 10, where it says:

(Reading:)

earlier described, Mr. Bucklew's condition is

progressive.

condition -- is it present him with -- well, I'm sorry.

I'll stop reading until I get to the point.

Medical records indicate that his -- his

(Reading to

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self).

Let me back up a little bit and go back to

the veins in -- in paragraph 6, and then I'll come back

to paragraph 10.

you discussed this later in your conclusions with Mr.

Bucklew.

Paragraph E?

Right.

Is it on page 9?

Yeah, page 9 and page 10.

Okay.

I think I'll stick with the veins for a

Is there a likelihood -- and I think

I think it's paragraph E in your conclusions.

minute before I go the next thing.

In there, you

conclude that there's a likelihood that Mr. Bucklew could

have a blown vein.

patients with veins as poor as Mr. Bucklew's, it is not

uncommon for a vein to blow once the fluid begins flowing

through the needle.

I think at the end you said, and in

Uh-huh (affirmative).

When you say that, I assume you're talking

about the peripheral veins that we discussed earlier in

paragraph 6, because you don't really have any knowledge

about the other veins he had?

Yes, correct.

Okay.

Let's go to paragraph C, if we

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could.

On page 9 here?

Yes, sir.

Okay.

I'm going to your conclusions here.

Uh-huh (affirmative).

It says: (Reading:)

Mr. Bucklew's airway

is compromised such that his breathing is labored and

choking and bleeding occur regularly, even under the

least stressful circumstances, and when Mr. Bucklew is

fully alerted and capable of taking corrective measures

to prevent suffocation (end of reading).

Let's go back to his MRI.

I believe you

indicated that during his MRI, he took corrective

measures by adjusting his breathing pattern when he was

required to remain supine for an hour.

Is that accurate?

He said something to that effect.

And I assume that here, he wouldn't be able

to do that if he was supine, because he'd be unconscious.

Is that fair?

Right.

After he receives -- as I assumed it, you

said that he would be unable to take remedial measures.

(Reading:)

up and take remedial measures to alleviate the feeling of

As often happens, Mr. Bucklew is able to wake

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choking and return to normal.

When unconscious or

reduced consciousness is brought on by sedation, an

individual is incapable of becoming fully alert and,

therefore, unable to alleviate feelings of air hunger and

choking (end of reading).

So, as I understand what you're saying, the

difference is that once he is sedated, he would be -- not

be conscious in the sense that he was during the MRI, so

he won't be able to adjust his breathing, and therefore

he will have difficulty in breathing that he can't

correct like he did during the MRI.

Is that fair?

Yes.

But that's going to happen after he's

sedated and becomes unconscious or, I think you used the

word semiconscious, at some point.

Reduced consciousness is the word you used.

Is that accurate?

I'm not sure what you're asking me.

I'm asking, until he becomes unconscious

because of sedation, he could make the same adjustments

that he made when he was taking the MRI, by adjusting his

breathing to compensate for airway difficulties?

I'm -- I think that the word -- I'm going

to have to push back on the word consciousness and

unconsciousness.

Okay.

Tell me what you mean.

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So I -- I think that I'm not sure -- I

think that those terms have common meanings.

tell you that in the anesthetic world, those terms are

more vague and more uncertain discriptors.

-- at some point when there will be a, you know,

decreased brain activity, maybe, that will make it hard

for Rusty to make corrective maneuvers for breathing.

And I would also say that breathing is a very, and a

basic, deep, brain activity, and that shortness of breath

is also something that we don't have to cognitively

consider.

And I can

So if you're

So at some point, it will be that he will

stop breathing before he dies.

will be, I cannot say, but at some point that will

happen.

not dead and he's not -- where he's beginning to

experience the effects of the pentobarbital, where his

ability to control and regulate and adjust his airway

will be impaired, although there will still be the

experience capable of knowing that he cannot make the

adjustment, and will experience it as choking and being

-- being, you know, very uncomfortable.

That -- how long that

And there will be points before then where he's

All right.

And I think this is obvious,

but I'm going to ask you a follow-up.

When one takes an

MRI, one has to keep one's head still or it doesn't work

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very well, is that fair?

Or CAT scan.

One has to keep still for periods of time.

Okay.

But -- but let me say that an MRI goes on

repeatedly.

Uh-huh (affirmative).

So there can be repeated moments when the

image is obtained, and sometimes there's movement and

then they say, okay, we're doing it again.

goes on like that.

it's not recorded as to how difficult it actually was to

get the images that they got.

And so it

So I wasn't there to witness it and

All right.

Your paragraphs E, F and G, I

would characterize as dealing with the risks of a blown

vein.

Is that fair?

And, again, we're talking about a peripheral vein.

Yes.

Okay.

And when we were talking about the

execution in Oklahoma where you indicated that the

Department of Corrections there was wrong as

characterizing it as a blown vein, part of your analysis

was that the femoral vein is a big vein.

that accurate?

felt they were wrong in saying it was a blown vein?

Isn't that --

So that was one of the reasons why you

MS. CARLSON:

Objection.

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THE WITNESS:

Let me say that I did not

have the -- I was not there.

BY MR. SPILLANE:

Uh-huh (affirmative).

At the time, I did not have the autopsy

report.

I did not know what kind of a needle that they

placed.

I assumed, as it turned out, wrongly, that they

used the right kind of needle in the femoral vein, which

would have had a much longer length than they actually

used.

And so I thought if you got the -- actually

got the catheter properly in the vein, that for that vein

to blow, is unusual.

there, which is what I was suggesting, or again, you've

just -- it got pulled out somehow.

same thing as a vein blowing.

So either you never got it in

Right.

But that's not the

That's what I wanted to make clear,

is they used the wrong catheter and they said that they

had a blown vein, but you concluded that was wrong

because it was wrong?

Well, that was my impression at the time.

Yes.

You talked about -- a little bit

about there being a stage when Mr. Bucklew would not be

able to adjust his airway, but wouldn't be fully

unconscious in the sense that he would be unaware there

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was a problem.

Were you able to come up with any

calculation as to what period of time that would be?

Calculation in terms of length of time?

Yes, sir.

You know, there's a wide range of time that

that could be.

pentobarbital is injected to when there's death.

what you're asking?

You know, that period of when -- when the

No.

Is that

I'm asking, at some point he's going

to become unconscious from pentobarbital.

grams, he's going to become comatose in the sense that

he's not aware of breathing, you know, or inability to

breathe.

that occurs, there would be a period when he would be

unconscious or have reduced consciousness but be still

aware of difficulty in breathing.

you had a calculation as to how long that would be?

With five

And I understood your testimony that before

And I was wondering if

I feel like there are too many parts of it,

what you're -- what you're saying to me.

saying how long it would -- maybe just -- if you could

just break that up, maybe.

All right.

I mean, are you

Let's start it this way.

Dr.

Antognini concluded, as you -- as you know, that within

twenty to thirty seconds, he would be sufficiently

reduced in consciousness that he wouldn't be aware of

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noxious stimuli.

Do you remember reading that?

I do.

All right.

Now let's ask you about that.

Do you agree with that analysis?

not, why?

And if so, why, and if

I don't agree with that analysis.

That's

based upon a dog study from fifty years ago.

So I don't

think that's a good comparison to what might happen in

this case.

number that he's taking there, and my number would be

longer than that.

Tell me what your number would be.

Well, so it's hard to find literature here.

So I would think that that is a very small

It is, because no one does these as experiments.

And so

most of the literature is animal based.

a paper recently that was a study on euthanizing horses,

from 2015.

they placed an electroencephalogram, an EEG, on the

horse, and they also gave the horse different medications

prior to the pentobarbital.

there were other medications.

they looked for is the absence of an

electroencephalograph tracing, something called an

isoelectric EEG.

And so I located

And in that study, they -- what they did is

They used pentobarbital.

And in their paper, what

And would that be brain death?

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No.

I mean, would it be indicative -- I mean --

It's not.

Okay.

I think it's a misnomer.

They actually

call it brain death in this paper, but we understand an

isoelectric EEG is not indicative of brain death.

is indicative of at least electrical silence on the parts

of the brain that an electroencephalogram has access to,

which is generally kind of surface cortical stuff.

but in that paper, they record a range of as short as

fifty-two seconds and as long as about two hundred and

forty seconds before they see isoelectric EEG.

Well, let me stop you there.

But it

So --

Isoelectric

EEG, that is the complete cessation of the brain making a

record that the EEG can -- can -- can record, is that

right?

Of what the EEG can see, which is not a

lot.

So, yes.

And -- and -- so that number is almost

twice as long -- or more than twice as long as -- as the

number that you record, which is the short number of

twenty seconds.

Twenty to thirty --

Yeah.

-- as opposed to fifty-two to two forty?

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Yes.

Okay.

Now that was the complete cessation

of things that the EEG could measure in the horse.

there a point where the horse wouldn't be able to feel or

recognize pain before that complete cessation?

I'm not a horse

expert.

I have no way of knowing.

Well, how much pentobarbital did the horse

The dose that they gave the horse was, I

get?

think, a hundred milligrams per kilo.

And horses are

about four hundred kilogram animals.

So it would be

about forty thousand milligrams of pentobarbital.

So it would be about four milligrams of

pentobarbital given to a horse?

Yes, close.

Right.

And we're going to give five to a

human who is probably smaller than a horse.

Well, it's the same -- it's a similar

weight, actually, weight per kilo that would be used in

lethal injection.

I'm -- I'm sorry, and I probably am just

too dense to understand your answer, but how many total

grams did the horse get?

I don't think you're dense.

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Okay.

Yeah.

So forty thousand milligrams.

that would be forty grams as opposed to five grams.

Oh, you said ten thousand milligrams?

Yeah.

I thought I heard four thousand.

Yeah, forty thousand.

So around forty thousand?

Forty thousand.

Okay.

It's like on a weight

base, it's quite similar to what your -- what the

Missouri protocol --

I understand now.

Yeah.

And you've got a range of fifty-two to

forty for complete stoppage of brain activity that could

be measured by an EEG?

sorry, I misspoke.

Yeah.

And that makes no sense.

going backwards.

Yeah.

Fifty-two to two forty.

I'm

Yeah.

That would be

And I would add, too, where they had

also received two other medications prior to that.

Tell me what those were.

Ketamine.

Okay.

And that's going to keep him from

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moving, I think, right?

It should.

To a certain degree.

Not exactly.

It does

some other things too.

Uh-huh (affirmative).

And the other one was something that I

don't -- I think it was Xylitol or something, which is

not something that's used in -- in people.

was a veterinary drug that I'm not -- might be a

benzodiazapene, but I can't swear to it.

that I was familiar with.

All right.

It's like it

It's not one

I'll just take a second to look

at another one of your opinions.

9, paragraph B.

Bucklew's particular medical condition places him at

almost certain risk for excruciatingly painful choking

complications, including visible hemorrhaging, if he is

subjected to execution by means of lethal injection (end

of reading).

I'm going to go to page

And there you wrote:

(Reading:)

Mr.

What did you mean by almost certain risk?

A high likelihood.

A very, very high

likelihood.

Okay.

So I took -- when you said almost

certain risk, I didn't know if certain was my -- that

it's almost certainly that there's going to be a risk, or

it's almost certain that it's going to happen.

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Almost certain that it's going to happen.

Okay.

The risk is certain.

So it's certain that he will have a risk,

if he's executed, that he'll have choking and

hemorrhaging?

Certain that there will be a risk of that,

Okay.

yes.

That's what I wanted to be sure of.

Now earlier, both in paragraph A and when we talked about

your article, but specifically in the article, you

indicated --

Which article?

The article in the Fordham Law Review.

Uh-huh (affirmative).

Where you opined that if he is not

I'm sorry.

executed, he will be strangled by the hemangioma.

Okay.

That's certain to happen, right?

There's a certain risk of that, yes.

Well, you didn't say in the article it's a

certain risk.

going to happen, the hemangioma would eventually strangle

him.

You said if he wasn't executed, that was

Well, he may die of some other reason.

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don't know.

reason --

Yeah.

-- the hemangioma is going to strangle him

Assuming he doesn't die of some other

if we don't execute him?

Eventually.

And if we do execute him, there's a risk

that he's going to choke because of the hemangioma?

Yes.

Okay.

At number -- excuse me, paragraph H,

you talk about lying flat during the execution process

increasing the risk to Mr. Bucklew.

factor that is likely to increase the turbulence of Mr.

Bucklew's air flow is the fact that the procedure for

execution calls for Mr. Bucklew to lie flat during the

execution process (end of reading).

(Reading:)

A second

Yes.

Why do you conclude that the procedure for

execution requires him to lie flat?

is Number 1.

Protocol to execute

If -- does it say that they would be --

could be in some other position?

I don't think it addresses it, but take a

look and see if you see anything there that says he has

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to lie flat.

I -- I don't know if it does.

I'm not sure

that I've -- I don't know.

here, I don't know if that means it is or it isn't.

Okay.

Because it's not mentioned

Because --

MS. CARLSON:

don't think this is the complete protocol.

MR. SPILLANE:

No, this is the complete OPA

MS. CARLSON:

Correct.

MR. SPILLANE: -- protocol that deals with

I would just object in that I

the administration of chemicals.

BY MR. SPILLANE:

And the reason I ask that is you said the

procedure calls for Mr. Bucklew to lie flat, in paragraph

H, and I was wondering where you got that from.

Well, what I have observed in the execution

that I observed --

In Georgia?

In Georgia.

And -- and the way that I've

seen it depicted in other states, is the gurney is in a

position where the inmate is lying flat.

When you conduct a clinical procedure and

you administer anesthesiology -- anesthesia -- have you

had cases where it was advantageous to airway management

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not to have the patient supine?

Yes.

What did you do?

Well, these were people who couldn't lie

And what did you do?

Well, then I used a different technique.

What technique did you use?

I would intubate them when they were awake.

flat.

I wouldn't --

And were they supine when you intubated

No.

them?

I can -- sometimes, I've intubated

people in a semi-recumbent position.

can't receive anesthesia, not because they can.

But because they

That's what I'm asking, though.

I mean,

there's no physical reason why one can't administer an

anesthesia to someone that's not supine?

It's more difficult when they're sitting

up, generally, for induction of an anesthetic.

I should clarify between securing an airway --

But maybe

Uh-huh (affirmative).

-- and the induction of an anesthetic.

Yes.

So to secure an airway, it's much easier to

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do it when a person is supine and when you're at the head

of the bed.

medical conditions, or the constraints of space, it can't

be done in that way.

way.

But sometimes, because of co-existing

But that's certainly the preferred

Sometimes patients are so sick and unstable

that they can't lie flat because it's too uncomfortable

for them,they are short of breath.

situations, too, the general induction agents would cause

their blood pressure to dangerously fall and could even,

you know, cause other medical problems.

And so in those

So the safer thing there is to approach it

in a different fashion, which would be sometimes from the

side, sometimes sitting up, and not anesthetized in a way

that one would otherwise do when a person was well and

able to be anesthetized in a more conventional body

position.

Is there any physical reason why a person

has to be supine to receive thiopental or pentobarbital

and have it be effective?

In an execution?

In any.

Is there any particular reason why --

Wouldn't it work just as well if they were

sitting up if they were injected with pentobarbital?

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Will work in what -- what are you talking

about, work what?

What are you trying --

Suppose you had a clinical patient that it

was necessary for reasons of -- for some reason that

could not lay supine, and you were going to use, back in

the old days, sodium thiopental, or now, for some

particular reason, pentobarbital or another barbiturate

on him, would the chemical still have the same effect if

the man was sitting up?

It wouldn't -- I'm trying to answer your

question.

Okay.

I -- I recognize the problem here is that

you're now talking about -- the reason why a person can't

lie flat would be what would be important here.

that they just choose not to.

It's that they can't

because of a medical reason.

So in that case, I might

not use pentobarbital at all, or something akin to that,

because pentobarbital is no longer available, or sodium

thiopental, anyway, is no longer available.

not use, you know, the equivalent of that in that

position because it's a different -- it's a different

kind of case.

It's not

So I might

I think that's about the best answer I'm

going to get, sir, so I'm going to move on.

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Okay.

All right.

is on page 12.

In conclusion, it is my professional, medical opinion

that Mr. Bucklew, as a result of his particular medical

condition and atypical anatomy of his airway, will suffer

excruciating pain and prolonged suffocation if he is

executed by lethal injection (end of reading).

We're going to go to O, which

And your final conclusion is:

Okay.

(Reading:)

First question, in making that

conclusion, does that conclusion assume that peripheral

veins are going to be used to infuse the pentobarbital --

for setting the line that will be used for the

pentobarbital?

As opposed to?

As opposed to a femoral?

I don't think it's material.

That part of

it, anyway.

All right.

Does the fact that he is --

that -- your opinion, in paragraph H, assume that the

protocol requires him to be supine?

does that change your opinion?

If he's not supine,

No.

So as I understand it, what's left is your

opinion -- is based on he has a difficult airway, and

even if a femoral vein is used, and even if he's not

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supine, and he's injected with pentobarbital, he will

still have choking, excruciating pain and prolonged

suffocation?

Yes.

Why?

Because his airway narrowing is of a fixed

nature.

And what he tells me is that he experiences

shortness of breath at all times, worse at some times

than others.

femoral vein -- we can take this in maybe two parts.

they're going to use a femoral vein, I'm going to surmise

that that would not be their first choice.

And I think that if they are going to use a

So they are going to start, first, by

trying to start veins in his arms, and they're going to

fail.

poking several times.

arm.

period of time.

And then they're going to fail on one arm, after

Then they'll switch to the other

Then they'll fail again.

And this will go on for a

Is that what you would do if this was your

patient and you were a board-certified anesthesiologist,

fail in both arms?

This is not a patient.

I'm asking, if this was a -- if you had a

patient with peripheral veins like this, would you fail

in both arms before you went to the femoral?

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This is not a patient.

So I'm just trying

If you had a patient, hypothetical, that

to --

had peripheral veins the same as Mr. Bucklew had, would

you fail in both arms and then go to a femoral?

MS. CARLSON:

Objection.

Calls for

THE WITNESS:

I don't know how they're

speculation.

going to do it, so I can't compare what they're

going to do.

make, unless it says -- it seems to say here that

they're trying in the arms before they're trying

in the femoral.

BY MR. SPILLANE:

But I don't know what decisions they

Well, let's go back and take a look.

I'm

looking at B-1 -- oh, I'm sorry.

paper.

personnel may insert the primary IV line as a peripheral

line or as a central venous line (end of reading).

So that doesn't seem to indicate they

I'm looking at C-1.

I picked up the wrong

(Reading:)

Medical

necessarily have to do a peripheral first.

Well, it's not -- it's not specified here.

So I would be -- I would think that they would start with

the peripheral.

Why?

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It's easier.

Is that what you would do in a patient?

Yes.

And you would miss in both arms?

It depends.

It's easier.

Sometimes I have done that.

mean, I can't always know until I try.

Okay.

So that's what -- that's what I believe

that they would do.

I'm going to flip back to the Gissendaner

case -- Gissendaner case, the Henry case and the Davis

case.

look at anything.

Okay.

Where in each case you gave an opinion that

I'm just asking a question now.

You don't need to

there would be an excruciating death.

One of them

because of -- in the Henry case, because of two risk

factors for coronary disease.

because she was female, overweight, and had a high BMI.

And in the Davis case, because he would have an acute

attack of porphyria.

in any of those cases?

In the Gissendaner case,

Do you believe that you were right

MS. CARLSON:

Objection to form.

THE WITNESS:

Right in what way?

BY MR. SPILLANE:

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RUSSELL BUCKLEW v. GEORGE LOMBARDI, et al.

0099a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 99

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 100

Right in predicting that those things would

happen.

That was my opinion, yes.

Those things didn't happen, though, did

We don't know that.

Well, we know that Mr. Davis didn't

they?

convulse and vomit on he gurney, as far as anybody

reported.

We don't know what he -- well, first of

all, as we discussed earlier, the reports are very

imperfect.

I -- I can't comment on whether those things happened or

they didn't happen.

So we don't actually know what happened.

And same thing with -- with Ms.

Gissendaner.

excruciating pain when she was singing Amazing Grace.

As far as we know, she wasn't suffering

Well, I don't know when the singing

occurred with respect to when the injections began, or

any other part of it, so I don't know.

Okay.

And let's go back to Mr. Henry.

far as we know, he didn't have a coronary event, based on

his two risk factors, during the execution.

How would we know that he didn't?

Well, there's no evidence of it.

Do you

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0100a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 100

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 101

have any reason to believe that he did?

I -- he did not have an autopsy.

He did

not have electrocardiographic monitoring.

questioned during -- or there was no other way to feed

back to know whether or not he was experiencing those

things at all.

these executions refute my -- my claims or my concerns.

He was not

So I would say that I -- that none of

Let me ask you this.

Is there something

different about Mr. Bucklew than those three?

Or --

Different in what way?

In -- I mean, here, as far as I can tell,

you're -- you're saying that because he has a difficult

airway, he's going to choke and bleed, and he's going to

suffer an excruciating execution.

way this is different than those other three cases where

you predicted an excruciating execution?

MS. CARLSON:

Object.

THE WITNESS:

They're all different.

Is -- is there some

Objection.

They're all different cases with different kinds

of medical problems.

Form.

So they're all different.

MR. SPILLANE:

Okay.

MS. CARLSON:

Are you finished?

MR. SPILLANE:

Yes, ma'am.

MS. CARLSON:

I just have a few questions.

That's all I have.

Thank you.

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RUSSELL BUCKLEW v. GEORGE LOMBARDI, et al.

0101a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 101

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 102

I'll be -- I'll be relatively brief.

EXAMINATION

BY MS. CARLSON:

So -- so, Dr. Zivot, I think you testified

that -- I'm actually not sure you testified about this,

so I'll just ask you.

anesthesiologist, correct?

You were trained as an

Yes.

Did you have a secondary specialty when --

during your training?

Yes.

And what was that?

Critical care medicine.

And during your critical care medicine

training, did that give you sort of a reason to do more

central lines than you think an average board-certified

anesthesiologist might do?

Yes.

And do you have colleagues who are

board-certified anesthesiologists?

Yes.

And have any of those colleagues ever asked

you to help them with a -- to do a central line?

Yes.

And do you have any knowledge of why

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0102a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 102

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 103

they've asked you to help them?

Because they lacked the experience, or they

had done it so long ago that they didn't feel comfortable

anymore to be able to do it at the time.

And I understand from the testimony that

you've provided affidavits in other cases involving

prisoners who are sentenced to death, is that correct?

Yes.

And are these -- the three cases, I

believe, that Mr. Spillane asked you about, are these the

only three people who have reached out to you to work on

their case --

No.

-- involving lethal injection?

No.

About how many other people could you say

have reached out to you to provide an affidavit?

Oh, about maybe ten times, fifteen times.

And you've decided not -- not to provide an

affidavit in those cases?

Correct.

And any sort of basic reasoning as to why,

in those cases, you decided not to?

There was no obvious, you know, medical

concern that I could glean from, you know, review and

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0103a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 103

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 104

discussion that I thought was germane, you know, to the

case, to the -- to the type of lethal injection

contemplated.

And have you ever -- do you have any

knowledge of anybody who has been executed who had Mr.

Bucklew's condition of cavernous hemangioma?

No.

MS. CARLSON:

If you can just give us one

second, and then I might be done.

(Off the record)

MS. CARLSON:

I have no further questions.

MR. SPILLANE:

I had a follow-up in light

of the cross.

RE-EXAMINATION

BY MR. SPILLANE:

In your earlier testimony, you indicated

that all lethal injections are necessarily -- are

necessarily unnecessarily cruel.

word with a negative in front of it and a positive in

front of it.

for you ever to give testimony that a -- in a particular

case that a lethal injection wouldn't be -- would not be

unnecessarily cruel?

And I hate to use a

But in light of that, would it be possible

I understand that -- that the Court has a

different view on my view.

So, you know, the cases that

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0104a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 104

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 105

you cite, I think all those situations were germane and

the Court saw otherwise.

that lethal injection by design will be cruel because of

the inability to know the things that the State claims

that it can know.

I've said before that I think

And that's my opinion.

MR. SPILLANE:

Okay.

MS. CARLSON:

Nothing further.

THE COURT REPORTER:

signature?

Thank you, Doctor.

And what about

Is the doctor going to read and sign?

MS. CARLSON:

Yes.

THE COURT REPORTER:

Carlson:) And do I send it to you?

Okay.

(To Ms.

MS. CARLSON:

Sure.

THE COURT REPORTER:

MS. CARLSON:

THE COURT REPORTER:

just where I can record your transcript orders.

That would be quicker than filling out a form.

Yes.

MS. CARLSON:

THE COURT REPORTER:

MR. SPILLANE:

To send to the doctor.

And if you don't mind,

Sure.

Yeah, just --

Yes, I would like a

transcript.

THE COURT REPORTER:

MR. SPILLANE:

THE COURT REPORTER:

Okay.

I would like it in pdf.

Okay.

And then

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RUSSELL BUCKLEW v. GEORGE LOMBARDI, et al.

0105a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 105

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 106

it's e-mailed to you?

MR. SPILLANE:

E-mailed to me, please.

MS. CARLSON:

Yeah, same.

THE COURT REPORTER:

MS. CARLSON:

The same thing?

Yeah.

(Deposition concluded at 3:30 p.m.)

-0-

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RUSSELL BUCKLEW v. GEORGE LOMBARDI, et al.

0106a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 106

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 107

D I S C L O S U R E

STATE OF GEORGIA

COUNTY OF COBB

DEPOSITION OF:

DR. JOEL B. ZIVOT, MD, FRCP

Pursuant to Article 8.B of the Rules and Regulations of

the Board of Court Reporting of the Judicial Council of

Georgia, I make the following disclosure:

I am a Georgia Certified Court Reporter.

independent contractor for DTI Global.

I am here as an

I was contacted by the offices of DTI Global provide

court reporting services for this deposition. I will not

be taking this deposition under any contract that is

prohibited by O.C.G.A. 15-14-37 (a) and (b).

I have no contract/agreement to provide reporting

services with any party to the case, any counsel in the

case, or any reporter or reporting agency from whom a

referral might have been made to cover this deposition.

I will charge its usual and customary rates to all

parties in the case, and a financial discount will not be

given to any party to this litigation.

Paula S. Parris, CCR Number 1664

Certified Court Reporter

Date:

3/20/17

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RUSSELL BUCKLEW v. GEORGE LOMBARDI, et al.

0107a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 107

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 108

C E R T I F I C A T E

STATE OF GEORGIA

COUNTY OF COBB

I, Paula S. Parris, hereby certify that the

foregoing deposition was taken down as stated in the

caption, and the questions and the answers thereto were

reduced to typewriting by me; that the foregoing pages 6

through 106 are a true, correct, and complete transcript

of the evidence given by the witness, DR. JOEL B. ZIVOT,

MD, FRCP, who was first duly sworn by me; that I am not a

relative, employee, attorney, or counsel of any of the

parties; that I am not a relative or employee of attorney

or counsel for any of said parties; nor am I financially

interested in the action.

I further certify that no contract exists with any

law firm, or anyone involved in this matter, and myself.

Before completion of the deposition, review of the

transcript was requested.

by the witness (and provided to the reporter) during the

period allowed are appended hereto.

If requested, any changes made

This, the 20th day of March, 2017.

Paula S. Parris

Certified Court Reporter

Certificate Number B-1664

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RUSSELL BUCKLEW v. GEORGE LOMBARDI, et al.

0108a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 108

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 1

abdominal

51:18

ability

21:6 72:20 81:18

able

18:1 22:23 26:5 40:18

68:7,25 73:1 74:23

76:1 77:10 79:18,24

80:9 83:24 84:1 87:4

94:16 103:4

ableness

72:16

abnormal

34:9 56:25

abnormalities

76:14

abnormally

57:6

absence

4:7 9:23 28:4 85:22

absolutely

12:23

access

41:8,10,14 44:8 70:3

71:8 86:9

account

25:10 32:4,7

accurate

16:25 19:1,16 20:6

21:1 37:4 39:9,13

67:19 79:16 80:15

82:23

accurately

39:8

acknowledge

27:20

action

35:17 36:8 37:4,8

108:14

actively

37:11

activity

36:19 81:6,9 88:15

actual

29:25

866-351-3376

acute

51:17 52:2,10,14

53:15 58:14,19,21

59:9,11,20 99:20

add

88:21

added

38:23

additional

21:10

addresses

91:24

adjust

80:9 81:18 83:24

adjusting

79:15 80:20

adjustment

81:21

adjustments

28:16 80:19

administer

92:24 93:17

administration

3:13 92:12

advantageous

92:25

advocacy

32:13

advocate

18:25 19:2,4 37:18

affidavit

5:3,11 14:6,7 16:7,8

40:20 42:17,20 43:12

43:20 55:10,13 56:2

60:18 61:10 103:17

103:20

affidavits

3:16 7:13 103:6

affirmative

14:15 35:7 38:13 57:3

63:23 67:7 73:15

78:19 79:6 82:6 83:4

89:4 90:15 93:22

age

56:16

agency

20:22 107:12

agent

51:1,3

agents

51:4,5 94:9

ago

47:7 85:7 103:3

agree

28:20 29:21 55:5 85:4

85:6

ahead

47:23 49:22,24 73:24

air

80:4 91:15

airway

29:18 31:12 79:7

80:21 81:18 83:24

92:25 93:21,25 96:6

96:24 97:6 101:13

akin

95:18

alert

80:3

alerted

79:11

allegedly

24:16

alleviate

79:25 80:4

allowed

108:20

alodemia

51:19

alternative

38:25 39:11,12 40:10

Amazing

45:25 46:24 47:1

100:17

American

21:15,21

amount

19:19 26:6

analgesic

49:3 50:6

analgesics

51:7,8

analysis

28:20 82:21 85:4,6

anatomically

70:25

anatomy

20:16 21:11 71:1 96:6

anesthesia

22:3 68:3 92:24 93:15

93:18

anesthesias

22:9,17

anesthesiologist

21:7 23:20 24:1 25:8

67:18,23 68:6,23

75:5,14,15 97:20

102:7,17

anesthesiologists

102:20

anesthesiology

21:12,16,21 38:12,17

92:24

anesthetic

19:13 48:19 49:13

50:9,13,18,21,22,23

81:3 93:20,23

anesthetics

21:6 22:1,12,15 48:6

48:11,13,14,24 49:6

49:19,20 50:2

anesthetized

94:14,16

aneurysm

63:4

angina

60:6,7,11

animal

85:15

animals

87:12

answer

32:16 40:7,18 43:10

47:12 48:7 54:1,21

58:18 65:7 66:14

67:24 68:16,19 71:13

77:4,9 87:23 95:10

95:24

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RUSSELL BUCKLEW v. GEORGE LOMBARDI, et al.

0109a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 109

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 2

answered

48:11 69:22

answering

76:23

answers

108:6

anticipate

41:13

Antognini

3:18,19 64:19 66:5,7,8

84:23

Antognini's

7:19 8:3 64:8

anybody

46:12 100:8 104:5

anymore

103:4

anyway

95:20 96:17

aperture

44:23 59:18

apnea

41:15 42:23 43:8

44:12,18,20,24 45:1

apologize

13:3 29:1 30:14 55:19

62:24 63:13 75:16

apparent

33:10

Appeals

13:16 45:3

appear

30:19

appended

108:20

applies

21:12 40:16

apply

40:5,11

approach

94:12

appropriate

67:13 68:6,24

April

30:18

arm

866-351-3376

97:15,17

arms

70:2,8 97:14,21,25

98:5,12 99:4

art

25:17

arterial

63:24,25

arteries

58:22 59:19

artery

24:20 57:20,22,23

58:1,4,8 59:2,23 60:8

63:3

article

3:21,23 4:3,5,7,9,11

8:14 9:5,13,21 10:6

10:17,22 18:3,4 19:9

19:10,17 20:10 25:24

26:14,15,19 27:6

28:12,14,22,23 32:4

32:11,12,20 34:7

35:25 37:14 38:1

39:23 45:24 54:11,15

54:16,25 90:11,11,13

90:14,21 107:5

articles

27:7 45:13,15,16

53:24

articulately

66:25

asked

39:6 46:23 47:8,16

48:10 50:7,8 72:16

72:22 77:3 102:22

103:1,10

asking

8:2 19:18 22:6 25:21

27:6 32:19 34:17,18

40:14,15 42:2 45:4,6

46:19,22 72:8,8

73:25 80:17,18 84:8

84:9 93:16 97:23

99:12

assertion

25:4

assistance

69:8 71:3,7

assistant

2:11 38:11,16

associated

31:15 57:18

assume

6:20 7:7,14 8:8,17,25

9:8,16,25 10:21 11:5

11:13 33:11 35:19,20

39:12 54:17 75:23,25

78:20 79:18 96:10,19

assumed

79:22 83:7

assumes

59:22

Assuming

91:2

Atlanta

1:16 6:2

attached

16:7 56:8 61:22 63:12

63:18

attack

51:17 52:2,10,14,21

53:15 58:16,18 99:21

attempt

74:9,9

attempts

28:15 74:22

attention

34:12

attorney

2:11 6:14 108:11,12

atypical

96:6

AT-117942

1:17

audience

19:18

Aug

4:12

AUSTIN

2:5

author

10:22 54:17

authored

8:15 9:6 10:7

autopsy

83:5 101:2

available

21:1 69:17 71:25 72:1

74:20 95:19,20

average

22:11 68:3 102:16

awake

93:9

aware

47:2,4 84:12,16,25

1:11 3:3 6:8 89:13

107:3,10 108:9

back

16:7,9 19:5 34:7 52:22

56:3,7 61:13 62:12

77:3 78:2,2,3 79:13

80:23 95:5 98:15

99:10 100:21 101:5

backwards

70:18 88:20

bad

4:18 11:24 38:9 47:15

57:13

barbiturate

95:7

barbiturates

48:21 49:2 50:3,6

base

88:10

based

20:20 36:9 43:13,24

44:12 45:20 46:8

52:19 53:14 59:5

66:18,18 85:7,15

96:24 100:22

basic

81:9 103:22

basis

23:18 30:23 31:14

54:25 60:7

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RUSSELL BUCKLEW v. GEORGE LOMBARDI, et al.

0110a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 110

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 3

becoming

80:3

bed

94:2

began

100:19

beginning

37:19 47:25 71:25

81:16

begins

29:13 33:5 35:5 48:5

60:21 61:25 78:17

begun

33:11

BEHALF

2:2,10

belief

32:1

believe

11:3,21 13:18 15:7

29:4 33:6 45:22

52:18 53:16,19 54:12

63:24 66:11 67:21

71:1,13,17 79:13

99:8,21 101:1 103:10

benzodiazapene

89:9

benzodiazapenes

51:6,8

best

95:24

better

25:6 26:18 53:20 73:2

73:3

big

24:18 26:1,11 63:2

82:22

Bimmerle

2:5,8 61:19 62:13,20

birth

29:16

bit

18:24 21:3,4,5 25:16

33:4 76:23 78:2

83:22

bleed

866-351-3376

101:13

bleeding

79:9

blind

71:8,9

block

48:19

blood

56:12,18 58:5,22 59:3

59:16,17 63:25 65:2

65:11,19 76:15 94:10

blow

78:17 83:13

blowing

83:16

blown

24:15 25:4,10,16 26:3

78:15 82:14,21,24

83:19

BMI

41:3 44:12 99:19

board

21:15,21 22:9 23:8

35:6,9,10,18 36:6,22

37:2,9,10 74:2,3,4

107:5

boards

20:18 36:18

board-certified

23:20 67:17 68:5,23

97:20 102:16,20

body

33:13 41:3 94:16

botched

24:16

bottom

30:10,12,13,14 62:2

Box

2:12

brain

4:10 10:10 28:25 81:6

81:9 85:25 86:6,7,9

86:15 88:15

break

84:21

breath

81:9 94:8 97:8

breathe

84:13

breathing

31:13 33:14,18 34:22

79:8,15 80:9,10,21

81:7,8,13 84:12,16

brief

102:1

bring

35:17 36:8 37:4,8

broader

39:24

brought

37:20 80:2

Broward

5:11

Bucklew

1:3 30:21,24 31:8 70:1

70:5 77:4 78:6,14

79:10,24 83:23 91:13

91:16 92:15 96:5

98:4 101:9

Bucklew's

10:9 29:6,18 30:17,18

31:10,12 70:17,19

77:22 78:16 79:7

89:14 91:15 104:6

burning

51:19

B-1

98:16

B-1664

108:24

2:1 6:1 62:14,21 67:8

78:25 107:1 108:1,1

calculated

56:25

calculation

84:2,3,17

caliber

26:5

call

14:24 86:6

called

9:14 10:9,18,19 11:4

11:12,21 13:7,15,17

14:14 15:19 16:19

50:25 71:8 85:23

calls

91:16 92:15 98:6

cannulation

74:22

capable

79:11 81:20

capital

26:17 27:21,23

caption

108:6

cardiac

68:2

cardiovascular

57:17

care

68:1 69:7 71:4,14,21

71:23 102:13,14

career

68:1 71:25 72:21

careers

72:18

Carlson

2:4,7 3:5 20:7 24:5

27:5 32:14 34:14

35:24 36:11 37:13

43:15 44:3 46:3 54:7

55:14,18 59:14 64:12

64:17 65:5 75:11

82:25 92:6,10 98:6

99:23 101:17,23,25

102:3 104:8,11 105:7

105:10,12,13,15,19

106:3,5

case

1:4 5:3 7:14 10:9

13:15,17,19,20 14:1

14:3,7,14,19,25 15:7

15:19,21 16:8 18:24

21:22 36:5 40:20

46:11 51:12 53:2

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RUSSELL BUCKLEW v. GEORGE LOMBARDI, et al.

0111a

CASE NO. 4:14-CV-08000-BP

DEFENDANT'S EXHIBIT 1

PAGE 111

DR. JOEL B. ZIVOT, M.D.,

3/8/2017

Page 4

58:1 70:17,19 72:14

85:9 95:17,23 99:11

99:11,11,12,15,17,18

99:20 103:12 104:2

104:22 107:11,12,13

cases

92:25 99:22 101:15,19

103:6,9,20,23 104:25

CAT

82:1