Petition for Writ of Certiorari — Kenneth Eugene Smith, Petitioner v. John Q. Hamm, Commissioner, Alabama Department of Corrections, et al.
Supreme Court briefJan 25, 2024
Ask Donna
What actually matters in this document.
Text
No.
KENNETH EUGENE SMITH,
Petitioner,
v.
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, et al.,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
PETITIONER’S APPENDIX—VOLUME II (APP’X F-J)
Andrew B. Johnson
BRADLEY ARANT BOULT CUMMINGS LLP
1819 Fifth Avenue North
Birmingham, Alabama 35203
(205) 521-8000
ajohnson@bradley.com
Robert M. Grass
Counsel of Record
Jeffrey H. Horowitz
David Kerschner
ARNOLD & PORTER KAYE SCHOLER LLP
250 West 55th Street
New York, New York 10019
(212) 836-8000
robert.grass@arnoldporter.com
jeffrey.horowitz@arnoldporter.com
david.kerschner@arnoldporter.com
Counsel for Petitioner
TABLE OF CONTENTS
APPENDIX
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
Appendix G
Appendix H
DOCUMENT
Opinion of the United States Court of
Appeals for the Eleventh Circuit
Kenneth Eugene Smith v. Comm’r,
Ala. Dep’t of Corr., No. 24-10095, Doc.
58-1 (11th Cir. Jan. 24, 2024)
Memorandum Opinion and Order of
the District Court for the Middle
District of Alabama
Smith v. Hamm, No. 2:23-cv-00656,
DE 69 (M.D. Ala. Jan. 10, 2024)
Order of the United States Court of
Appeals for the Eleventh Circuit
Kenneth Eugene Smith v. Comm’r,
Ala. Dep’t of Corr., No. 24-10095, Doc.
44-2 (11th Cir. Jan. 20, 2024)
Order of the District Court for the
Middle District of Alabama
Smith v. Hamm, No. 2:23-cv-00656,
DE 88 (M.D. Ala. Jan. 24, 2024)
Plaintiff Kenneth Eugene Smith’s
Renewed Emergency Motion to
Supplement the Record (with exhibits)
Smith v. Hamm, No. 2:23-cv-00656,
DE 87 (M.D. Ala. Jan. 23, 2024)
Second Amended Complaint
Smith v. Hamm, No. 2:23-cv-00656,
DE 31 (M.D. Ala. Nov. 28, 2023)
Declaration of Dr. Robert Jason Yong,
MD, MBA, dated Nov. 17, 2023
Smith v. Hamm, No. 2:23-cv-00656,
DE 19-1 (M.D. Ala. Nov. 20, 2023)
Supplemental Declaration of Dr.
Robert Jason Yong, MD, MBA, dated
Dec. 18, 2023
ii
PAGE
1a
36a
84a
86a
90a
147a
184a
236a
Appendix I
Appendix J
Appendix K
Smith v. Hamm, No. 2:23-cv-00656,
DE 62-58 (M.D. Ala. Dec. 22, 2023)
Declaration of Dr. Katherine
Porterfield, Ph.D., dated Nov. 18, 2023
Smith v. Hamm, No. 2:23-cv-00656,
DE 19-3 (M.D. Ala. Nov. 20, 2023)
Supplemental Declaration of Dr.
Katherine Porterfield, Ph.D., dated
Dec. 15, 2023
Smith v. Hamm, No. 2:23-cv-00656,
DE 62-113 (M.D. Ala. Dec. 22, 2023)
Declaration of Dr. Jonathan I. Groner,
MD, dated Nov. 13, 2023
Smith v. Hamm, No. 2:23-cv-00656,
DE 19-1 (M.D. Ala. Nov. 20, 2023)
iii
238a
310a
374a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 1 of 37
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
KENNETH EUGENE SMITH,
)
)
Plaintiff,
)
)
v.
)
)
JOHN Q. HAMM, in his official capacity )
as Commissioner, Alabama Department of )
Corrections, and
)
)
TERRY RAYBON, in his official capacity )
as Warden, Holman Correctional Facility, )
)
Defendants.
)
Case No. 2:23-cv-00656-RAH
CAPITAL CASE
EXECUTION SCHEDULED FOR
JANUARY 25, 2024
SECOND AMENDED COMPLAINT
Plaintiff Kenneth Eugene Smith alleges as follows:
INTRODUCTION
1.
Plaintiff Kenneth Eugene Smith is in the custody of the Alabama Department of
Corrections (“ADOC”) at William C. Holman Correctional Facility (“Holman”) under a death
sentence imposed by the State of Alabama despite the jury’s recommendation by a vote of 11 to 1
that he be sentenced to life imprisonment without the possibility of parole. As the Eleventh Circuit
has recognized, “if Smith’s trial had occurred today, he would not be eligible for execution
because, in 2017, Alabama amended its capital sentencing scheme” to repeal the authority of
elected circuit court judges to override a jury’s sentencing determination. See Smith v. Comm’r,
850 F. App’x 726, 726 n.1 (11th Cir. 2021). Because the amendment applied only prospectively,
Mr. Smith has been denied relief from his death sentence, even though that same sentence could
not be imposed today given his jury’s sentencing vote.
1
147a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 2 of 37
2.
Mr. Smith brings this action under 42 U.S.C. § 1983 to enjoin an imminent
deprivation of his rights and privileges secured by the Constitution and laws of the United States.
3.
The State already has tried to execute Mr. Smith once. On November 17, 2022,
Mr. Smith survived ADOC’s attempt to execute him by lethal injection when ADOC personnel
were unable to place intravenous (“IV”) lines to administer lethal drugs to him. Mr. Smith’s was
the third consecutive execution that ADOC botched and/or failed for the same reason—its inability
to place IV lines in the condemned person. ADOC’s failed attempt to execute Mr. Smith caused
him severe and ongoing physical and psychological pain, including severe post-traumatic stress
disorder (“PTSD”). ADOC remained willfully blind to the risk of that outcome by failing to
investigate what happened and why during its immediate two previous botched and/or failed
executions to prevent a recurrence before it attempted to execute Mr. Smith.
4.
Now ADOC seeks to execute Mr. Smith by nitrogen hypoxia—an execution
method that has “never been used to carry out an execution and ha[s] no track record of successful
use.” Bucklew v. Precythe, 139 S. Ct. 1112, 1130 (2019) (internal quotation marks and citation
omitted).
5.
For years, and as recently as just a few months ago, ADOC had taken the position
that nitrogen hypoxia was not a feasible, alternative method of execution. Then, on the eve of
being required to disclose information regarding its failed attempt to execute Mr. Smith by lethal
injection, ADOC suddenly changed course, now claiming it is prepared to carry out executions
using nitrogen hypoxia.
6.
Mr. Smith’s execution by nitrogen hypoxia would violate his constitutional rights.
ADOC selected Mr. Smith for the first ever attempted execution by nitrogen hypoxia even though
he has an appeal pending in the Alabama Court of Criminal Appeals from the dismissal of a non2
148a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 3 of 37
frivolous state postconviction petition that addresses the constitutional problem with attempting to
execute Mr. Smith for a second time, and even though other condemned people in Alabama who
elected to be executed by nitrogen hypoxia when that option was made available to them in 2018
have exhausted their appeals.
7.
ADOC’s selection of Mr. Smith as the test subject for this novel and experimental
method is arbitrary and capricious and inconsistent with its own stated “‘custom [to] wait[] to
move for an inmate’s execution until he has exhausted his conventional appeals: direct appeal,
state postconviction, and federal habeas.” Woods v. Comm’r, Ala. Dep’t of Corrs., 951 F.3d 1288,
1292 (11th Cir. 2020) (citation omitted in original). As such, moving Mr. Smith to the front of the
line for execution by nitrogen hypoxia violates his rights to due process and equal protection under
the Fourteenth Amendment to the U.S. Constitution.
8.
Moreover, the protocol by which ADOC intends to execute Mr. Smith is
constitutionally deficient. ADOC proposes to carry out Mr. Smith’s execution by nitrogen hypoxia
by following its recently released Execution Procedures as of August 2023 (the “Protocol”). Ex.
1.1
9.
When Mr. Smith challenged his execution by lethal injection in 2022 and proposed
nitrogen hypoxia as a feasible and available alternative, he did not agree to be executed without
knowing the protocol, much less by ADOC using a protocol that he had never seen and that was
hastily introduced as a means to moot Mr. Smith’s pending litigation about ADOC’s previous
failed attempt to execute him by lethal injection and forestall discovery into it.
1
Mr. Smith has filed a copy of the Protocol under seal. Mr. Smith has filed a copy of the “public
version,” which includes redactions, on the public docket.
3
149a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 4 of 37
10.
It is clear that the consequences of attempting an execution by nitrogen hypoxia
using ADOC’s deficient Protocol will be dire. If not performed correctly, execution by nitrogen
hypoxia can result in another botched execution that risks leaving Mr. Smith with permanent
injuries. For example, hypoxemia (low levels of oxygen in the blood), which can lead to hypoxia
(low levels of oxygen in organs), can cause severe and permanent injuries short of death, including
a persistent vegetative state, stroke, or the painful sensation of suffocation. Therefore, it is critical
that the procedures ADOC employs are designed to reduce those risks to the lowest possible levels.
11.
The Protocol, if used to attempt to execute Mr. Smith by nitrogen hypoxia, exposes
him to a severe risk of superadded pain during the execution process, including but not limited to
hypoxemia and hypoxia short of death, in violation of his right to be free from cruel and unusual
punishment under the Eighth and Fourteenth Amendments to the U.S. Constitution. There are
several specific problems with the Protocol, which will exacerbate—rather than reduce—the risk
of the dire consequences that can result from nitrogen hypoxia for at least the following reasons.
12.
First, it appears that ADOC intends to deliver pure nitrogen to the condemned
person from a cannister through tubing that flows into a “one size fits all” mask that a member of
the Execution Team will place over the condemned person’s face and adjust. See Protocol
§ X.A.v.; Appendix C, § 2 ¶¶ 26–29. But the Protocol does not provide any information on the
type of mask that will be used, or how the mask will be secured so that it remains sealed and in
proper position over the condemned person’s face throughout the process. Indeed, the Protocol
contemplates that the condemned person will be permitted to make a statement after the mask is
placed over his face. The protocol therefore assumes the mask will be secured in such a way that
the inmate will be able to speak after it is in place, which can dislodge the mask and break the seal.
Id. § X.A.ix. If the mask is not sealed throughout the process, oxygen can leak inside the mask
4
150a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 5 of 37
and the condemned person can inhale it. If the condemned person can inhale oxygen, that likely
would prolong the time to reach unconsciousness and could lead to a persistent vegetative state,
stroke, or the painful sensation of suffocation.
13.
Second, the Protocol does not contemplate any mechanism to remove the carbon
dioxide under the mask as the condemned person exhales so that carbon dioxide does not build to
dangerous levels in the condemned person. If the condemned person inhales carbon dioxide after
the mask is placed on his face, he will experience the painful sensation of suffocating and other
dire consequences. This is particularly a problem given the provision in the Protocol that
contemplates that the condemned person will be permitted to make a statement after the mask is
placed over his face. Id.
14.
Third, the Protocol does not specify the purity of the nitrogen that will be used or
how the tanks will be stored when not in use, which is critical to prevent contamination. If ADOC
uses less than 100% pure nitrogen to execute a condemned person, that likely would prolong the
time to reach unconsciousness and could lead to the same dire consequences.
15.
Fourth, the Protocol does not contain any provisions both during the days leading
up to the execution and during the execution to address the unique situation of Mr. Smith who
survived a prior execution attempt and is experiencing PTSD as a result. People with PTSD, like
Mr. Smith, can experience nausea when they are re-exposed to the traumatizing event. A second
attempt to execute Mr. Smith undoubtedly is such an event. And the Protocol does not provide for
any procedures if a condemned person vomits into the mask in which case the condemned person
could choke on his own vomit. Nor does the Protocol make any accommodation for condemned
people with PTSD as a result of a previous attempted execution who may experience symptoms
5
151a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 6 of 37
such as intense psychological distress, extreme panic, or sleep disruption leading up to another
attempt.
16.
Fifth the Protocol unconstitutionally burdens Mr. Smith’s First Amendment rights
and violates his rights under the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc, et seq. and the Alabama Religious Freedom Amendment
(“ARFA”), Ala. Const. art. I, § 3.01(V). The Protocol provides that a mask will be placed over
the condemned person’s face before he is permitted to make a statement. In addition to the risk of
dislodging the mask, those provisions of the Protocol will interfere with Mr. Smith’s right to speak
audibly and to pray audibly with or without a spiritual advisor.
There is no compelling
governmental interest that justifies that burden on Mr. Smith’s rights and, in any event, there are
less restrictive alternatives to accomplish any purported compelling governmental interest.
17.
There are feasible and available alternatives, including amendments to the Protocol
to address its inadequacies. Absent such amendments, executing Mr. Smith by nitrogen hypoxia
according to the Protocol would violate his Eighth and First Amendment rights.
JURISDICTION AND VENUE
18.
This is an action for a declaratory judgment, injunctive relief, and any other relief
available from the Court.
19.
The Court has subject matter jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C.
§§ 1331, 1343(a)(3), 1367(a), and 2201(a).
20.
Venue is proper in the Middle District of Alabama under 28 U.S.C. § 1391(b).
6
152a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 7 of 37
PARTIES
21.
Plaintiff Kenneth Eugene Smith, a citizen of the United States and of the State of
Alabama, is an inmate at Holman under Defendants’ supervision and subject to execution under a
state court judgment of conviction for capital murder.
22.
Defendant John Q. Hamm is sued in his official capacity as the Commissioner of
ADOC. ADOC is an administrative department of the State responsible for administering and
exercising the direct and effective control over penal and corrections institutions within the State.
At all relevant times, Defendant Hamm has been acting under color of state law and as the agent
and official representative of ADOC, pursuant to ADOC’s official policies and procedures.
23.
Defendant Hamm is responsible for procedures governing the execution of
condemned people in Alabama, including developing and implementing the Protocol, and
approving changes or amendments to it. See Protocol § I.A (“Approval authority for changes or
amendments to this protocol is the Commissioner of the Alabama Department of Corrections”).
Additionally, he is statutorily charged with providing the materials necessary to execute
condemned people in Alabama. See Ala. Code § 15-18-82 (“It shall be the duty of the Department
of Corrections of this State to provide the necessary facilities, instruments, and accommodations
to carry out the execution.”).
24.
Defendant Hamm also is responsible for ensuring that all prisoners committed to
ADOC’s custody are treated in accordance with the U.S. and Alabama Constitutions.
25.
Defendant Terry Raybon is sued in his official capacity as the Warden of Holman.
At all relevant times, Defendant Raybon has been acting under color of state law and as the agent
and official representative of Holman and ADOC, pursuant to ADOC’s official policies and
procedures.
7
153a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 8 of 37
26.
Defendant Raybon is the statutory executioner of all condemned people in
Alabama. See Ala. Code § 15-18-82 (“The warden of the William C. Holman unit . . . shall be the
executioner.”). In that capacity, Defendant Raybon plays a direct role in each execution that takes
place at Holman. Defendant Raybon organizes the execution team. See Protocol § V. He is
responsible for implementing ADOC policies and procedures governing executions, managing the
preparations for an execution, and supervising the execution site during the execution. Defendant
Raybon has specific responsibilities to inventory, inspect, and activate the equipment used in
executions by nitrogen hypoxia and to ensure that the equipment is available and functioning
properly. See id. §§ V.D.ii, V.D.iv, V.D.v, IX.E.ii, IX.I.v, IX.I.vi, X.A.i, X.A.xii, X.A.xiv,
XI.A.iii, XI.A.v.
27.
Defendant Raybon also is responsible for ensuring that all prisoners incarcerated at
Holman are treated in accordance with the U.S. and Alabama Constitutions.
CASE OR CONTROVERSY
28.
There is a real and justiciable case or controversy between the parties. Defendants
intend to execute Mr. Smith by nitrogen hypoxia within a time frame set by the Governor.
Defendants intend to use the Protocol to attempt to accomplish that result, which will subject
Mr. Smith to an objectively intolerable risk of superadded pain.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
29.
Mr. Smith has no available administrative remedies because State law exempts
“[t]he policies and procedures of the Department of Corrections for executions of persons
sentenced to death . . . from the Alabama Administrative Procedure Act, Chapter 22 of Title 41.”
Ala. Code § 15-18-82.1(g).
8
154a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 9 of 37
FACTUAL ALLEGATIONS
A.
Mr. Smith Has PTSD Caused by ADOC’s Failed Attempt to Execute Him by
Lethal Injection with Deliberate Indifference to His Constitutional Rights
30.
In November 2022, ADOC tried and failed to execute Mr. Smith because it was
unable to place IV lines to deliver lethal drugs into his bloodstream. ADOC did so despite
experiencing the same problem in its two immediately preceding attempts to execute condemned
people and without doing any investigation about what happened and why to prevent a recurrence
before it attempted to execute Mr. Smith. Given that, ADOC’s attempts to establish intravenous
access went “‘so far beyond what [is] needed to carry out a death sentence that [it] could only be
explained as reflecting pain for pain’s sake.’” Smith v. Hamm, No. 2:22-cv-497, 2022 WL
4353143, at *7 (M.D. Ala. Jul. 5, 2023) (citation omitted). Among other things, ADOC’s actions
left Mr. Smith with PTSD. About one year later, ADOC seeks to make Mr. Smith the test case for
its novel and largely secret nitrogen hypoxia Protocol.
31.
On July 28, 2022, ADOC botched the execution of Joe Nathan James when it
strapped him to a gurney and poked, prodded, and cut him, attempting multiple times over three
hours to access a vein for IV injection of the lethal drugs. On September 22, 2022, ADOC
unsuccessfully attempted to execute Alan Eugene Miller because ADOC personnel were unable
to set IV lines to administer the lethal drugs after they “painfully punctured [him] with needles
over various parts of his body for approximately 90 minutes,” which caused “extreme physical
pain as well as psychological pain . . . .” Miller v. Hamm, 640 F. Supp.3d 1220, 1241 (M.D. Ala.
2022). After the botched execution of Mr. James and the failed attempt to execute Mr. Miller,
ADOC did nothing to investigate its lethal injection procedures to determine what happened and
why in an effort to prevent a recurrence.
9
155a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 10 of 37
32.
In August 2022, three weeks after Mr. James’s botched execution, Mr. Smith
commenced an action in this District against Defendant Hamm, alleging that his execution by
lethal injection would violate his right to be free from cruel and unusual punishment under the
Eighth Amendment and seeking declaratory and injunctive relief to prohibit ADOC from
executing him by lethal injection. See Smith v. Hamm, No. 2:22-cv-497, Complaint (DE 1) (M.D.
Ala.) (“Lethal Injection Action”)
33.
After the botched execution of Mr. James and the failed attempt to execute
Mr. Miller, ADOC remained willfully blind to the insufficiency of its lethal injection procedures
and forged ahead with Mr. Smith’s execution, which was scheduled for November 17 at 6 p.m.2
34.
Before it attempted to execute Mr. Smith, Defendants and ADOC knew or should
have known based on the difficulties that occurred during Mr. James’s execution and Mr. Miller’s
attempted execution that the IV Team would have great difficulty establishing intravenous access,
resulting in severe physical and psychological pain to Mr. Smith.
35.
They further knew or should have known that what they allegedly had done to
Mr. Miller—as described in a pleading that he filed in this District—stated a plausible claim for
violation of the Eighth Amendment right to be free from cruel and unusual punishment. See Miller
v. Hamm, No. 2:22-cv-506, 2022 WL 16721093, at *13–15 (M.D. Ala. Nov. 4, 2022).
36.
Despite all that, Defendants and ADOC recklessly and knowingly charged ahead
with deliberate indifference to Mr. Smith’s Eighth Amendment right to be free from cruel and
unusual punishment.
37.
As Mr. Smith foresaw, and as happened in the previous two executions, ADOC was
unable to place IV lines for delivery of the lethal drugs to him and its repeated, unsuccessful
2
All times referenced in this Complaint are Central Time.
10
156a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 11 of 37
attempts to do so caused Mr. Smith severe and ongoing physical and psychological pain. See
Barber v. Gov. of Ala., 73 F.4th 1306, 1324 (11th Cir. 2023) (J. Pryor, J., dissenting) (“Mr. Smith’s
horrifying experience was not a singular event; it was just the latest incident in an uninterrupted
pattern of executions by Alabama’s Department of Corrections (‘ADOC’) that involved protracted,
severely painful, and grisly efforts to establish the intravenous lines necessary to carry the lethal
drugs into his body.”).
38.
A little before 8:00 p.m. on November 17, corrections officers handcuffed and put
leg irons on Mr. Smith, removed him from the holding cell where he was located, escorted him to
the execution chamber, and strapped him to a gurney with restraints around his arms, legs, and
feet. Mr. Smith remained strapped to the gurney unable to move for nearly four hours even though
a stay of the execution issued by the United States Court of Appeals for the Eleventh Circuit was
in place until it was vacated by the U.S. Supreme Court at approximately 10:20 p.m. See Smith v.
Comm’r Ala. Dep’t of Corrs., No. 22-13846-P, 2022 WL 19831029 (11th Cir. Nov. 17, 2022),
vacated sub nom., Hamm v. Smith, 143 S. Ct. 440 (2022).
39.
Mr. Smith was not told that the Eleventh Circuit had stayed his execution. Nor was
Mr. Smith released from the gurney restraints and removed from the execution chamber while the
stay was in place. He believed that when he was taken into the execution chamber, all of his
appeals had been exhausted, and that he would be killed imminently.
40.
As a man of faith, Mr. Smith sought to maintain his dialogue with God. He thanked
God for the week he had just had with his family and quietly sang to himself the contemporary
hymn, “I’m not alone.”
41.
As time passed with no apparent steps to accomplish the execution and no
information from the three corrections officers who remained in the execution chamber with him,
11
157a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 12 of 37
Mr. Smith became increasingly distressed due to the lack of circulation caused by the restraints
and because his witnesses, including his wife, son, and daughter-in-law, had not arrived and he
feared he would be killed without the ability to address them and the victim’s family as he had
planned.
42.
At around 10:00 pm, three men wearing medical scrubs (the “IV Team”) who were
not identified to Mr. Smith, and have not been identified to him since, entered the execution
chamber. At the same time, two men and one woman dressed formally, one holding an accordion
folder and two holding a notepad and pen, also entered the execution chamber. Those people also
were not identified to Mr. Smith and have not been identified since. Nor has ADOC disclosed the
roles they served in the execution process or otherwise explained their presence in the execution
chamber, which was particularly distressing because some of them appeared to be taking pictures
or video with their cell phones.
43.
On information and belief, others, including Defendants, observed activities in the
execution chamber from an adjacent room.
44.
ADOC’s then-governing protocol for executing condemned people by lethal
injection authorized only two methods for establishing IV access: the “standard procedure” or, if
that was unavailable, “a central line procedure.”
45.
It should be a straightforward process to establish IV access by those procedures or
to determine that neither is achievable. According to the Emergency Nurses Association Clinical
Practice Guideline for Difficult Intravenous Access, “[t]he average time requirement for peripheral
IV cannulation is reported at 2.5 to 16 minutes, with difficult IV access requiring as much as 30
minutes.” ENA Clinical Practice Guideline: Difficult Intravenous Access (Revised Oct. 2015).
And “[p]atients experience increased and potentially significant pain in association with multiple
12
158a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 13 of 37
IV attempts.” J. Fields, et al., Association between multiple IV attempts and perceived pain levels
in the emergency department, 15 J. Vasc. Access 514, 518 (2014); A. Bahl, et al., Defining difficult
intravenous access (DIVA): A systematic review, J. Vasc. Access 1, 1 (Nov. 2021) (“multiple
venipuncture attempts sometimes required for successful [IV] insertion . . . can cause pain and
anxiety for the patient”).
46.
But, as it had with Messrs. James and Miller, ADOC took well in excess of 30
minutes attempting unsuccessfully to obtain IV access to administer the lethal drugs to Mr. Smith.
47.
In an unsuccessful attempt to establish two IV lines by the standard procedure, the
IV Team jabbed Mr. Smith repeatedly, sliding the catheter needle continuously in and out of his
arms and hands, while ignoring Mr. Smith’s complaints that they were penetrating his muscles and
causing severe pain.
48.
Having failed to establish IV access by the standard procedure, the IV Team next
tried to do so using a central line procedure. Toward that end, at the request of the IV Team, the
corrections officers tilted the gurney backwards so that Mr. Smith lay in a reverse crucifixion
position with his head below his feet. Neither the IV Team nor anyone else in the execution
chamber explained why they requested that or informed Mr. Smith about the procedure they were
about to attempt.
49.
After placing a blue surgical drape with a clear plastic shield in the face area over
Mr. Smith, one of the members of the IV Team, who was wearing a surgical gown, face mask, and
clear plastic shield over his face, made five or six needle jabs with a clear syringe in Mr. Smith’s
collarbone area, causing him severe pain. Then, the same IV Team member inserted a large gauge
needle into Mr. Smith’s collarbone area and made multiple jabs, which caused Mr. Smith so much
pain that he contorted against the restraints on the gurney injuring his right shoulder and had
13
159a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 14 of 37
difficulty breathing. After what seemed like an eternity to Mr. Smith, the needle jabs stopped. All
the while the IV Team, the corrections officers, and the three other people in the execution chamber
ignored Mr. Smith’s complaints about the severe pain he was experiencing and his pleas to contact
the court presiding over the Lethal Injection Action and/or his counsel.
50.
ADOC and the IV Team abandoned their efforts to obtain IV access shortly before
midnight, long after it should have been apparent that they would not succeed. Mr. Smith was
unable to stand, walk, or dress and undress himself without assistance when his ordeal concluded
and the corrections officers released him from the gurney restraints.
51.
Mr. Smith experienced and continues to experience a great deal of physical and
psychological pain from ADOC’s attempt to execute him. After the execution, he experienced
lingering pain in his arm from repeated needle jabs and in his collarbone from ADOC’s attempted
central line procedure. He also experienced back spasms from being restrained on the gurney for
nearly four hours.
52.
Mr. Smith also has had chronically severe psychological consequences, including
severe PTSD. In addition to difficulty sleeping, Mr. Smith’s symptoms include nightmares,
hypervigilance, hyperarousal, and disassociation (a defense mechanism to suppress threatening
thoughts).
B.
ADOC’s Decision to Make a Renewed Attempt to Execute Mr. Smith by
Nitrogen Hypoxia and to Put Him in the Front of the Line
53.
Even after its failed attempt to execute Mr. Smith by lethal injection in November
2022, ADOC insisted that it would attempt to do so again by that method. In late August 2023,
ADOC suddenly switched its position, on the eve of discovery deadlines in the Lethal Injection
Action, and announced that due to Mr. Smith’s unique circumstances lethal injection is not an
available method to execute him and that it would execute him instead by nitrogen hypoxia.
14
160a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 15 of 37
ADOC chose Mr. Smith as the first condemned person to be subject to execution by that novel and
untested method of execution even though he has an appeal pending in the Alabama Court of
Criminal Appeals from denial of a state postconviction petition and there are other condemned
people who chose to be elected by nitrogen hypoxia five years ago and whose appeals have
exhausted. In addition, ADOC’s actions had the effect of rendering the Lethal Injection Action
moot before ADOC was required to engage in discovery and disclose what happened during its
botched execution of Mr. James and its failed attempts to execute Mr. Miller and Mr. Smith.
1.
54.
ADOC Selected Mr. Smith for the First Ever Nitrogen Hypoxia
Execution Contrary to Its Custom of Waiting Until Condemned People
Have Exhausted Their Appeals to Execute Them
In May 2023, Mr. Smith timely filed a petition in the Circuit Court of Jefferson
County seeking an injunction preventing the State from attempting to execute him again by any
method (the “State Court Petition”).
55.
The State Court Petition arises from ADOC’s failed attempt to execute Mr. Smith
in November 2022. Mr. Smith contends that another attempt to execute him is constitutionally
prohibited because it would follow “a series of abortive attempts,” including ADOC’s “single,
cruelly willful attempt” to execute Mr. Smith, La. ex rel. Francis v. Resweber, 329 U.S. 459, 471
(1947) (Frankfurter, J., concurring), which “demonstrate[s] an ‘objectively intolerable risk of
harm’ that officials may not ignore.” Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality op.) (quoting
Farmer v. Brennan, 511 U.S. 825, 846 & n.9 (1994)).
56.
As the claim that Mr. Smith asserts in the State Court Petition did not arise until
ADOC’s failed attempt to execute him in November 2022, it could not have been asserted in any
previous state or federal postconviction proceeding.
15
161a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 16 of 37
57.
On August 11, the circuit court dismissed the State Court Petition. Mr. Smith’s
appeal from that dismissal is pending in the Alabama Court of Criminal Appeals.
58.
Defendants seek to execute Mr. Smith by nitrogen hypoxia despite Mr. Smith’s
pending appeal from the dismissal of the State Court Petition in the Alabama Court of Criminal
Appeals and contrary to ADOC’s own stated “‘custom [to] wait[] to move for an inmate’s
execution until he has exhausted his conventional appeals: direct appeal, state postconviction, and
federal habeas.” Woods v. Comm’r, Ala. Dep’t of Corrs., 951 F.3d 1288, 1292 (11th Cir. 2020)
(citation omitted in original).
59.
There are other condemned people in Alabama whose appeals have exhausted and
who elected to be executed by nitrogen hypoxia.
60.
In 2018, the State authorized nitrogen hypoxia as a method of execution and
permitted condemned people whose capital convictions were then final to elect to be executed by
that method instead of lethal injection. See Ala. Code § 15-18-82.1(b)(2). The authorizing
legislation served to moot litigation brought by condemned people in Alabama challenging the
constitutionality of execution by lethal injection. See In re: Alabama Execution Protocol Litig.,
No. 1:12-cv-316, Joint Motion to Dismiss (Doc. 427) (M.D. Ala.).
61.
Mr. Smith was not a party to that litigation and did not elect to be executed by
nitrogen hypoxia in 2018. But “[n]early 50 . . . death sentenced inmates in Alabama elected
nitrogen hypoxia during the election period,” including death-sentenced inmates “who have
exhausted their conventional appeals.” Woods, 951 F.3d at 1291–92. Those inmates have yet to
be executed because ADOC only recently finalized a protocol for doing so. See id.
62.
In addition, on information and belief, ADOC gave at least one condemned person
who it intends to execute by nitrogen hypoxia a grace period so that the condemned inmate and
16
162a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 17 of 37
his counsel could review the Protocol before the State moved for authority to execute him under
its procedures.
63.
ADOC did not provide Mr. Smith with any comparable grace period; the State
moved for authority to execute him by nitrogen hypoxia on the same day it released a heavily
redacted version of the Protocol.
64.
Even though Mr. Smith has an appeal pending in the Alabama Court of Criminal
Appeals and other condemned people who elected to be executed by nitrogen hypoxia five years
ago have exhausted their appeals, the State chose Mr. Smith to be the first condemned person to
be subject to execution pursuant to its experimental nitrogen hypoxia Protocol.
2.
65.
ADOC’S Selection of Mr. Smith for the First-Ever Nitrogen Hypoxia
Execution Served to Moot the Lethal Injection Action
Shortly after ADOC’s failed execution attempt, Mr. Smith amended his complaint
in the Lethal Injection Action to add allegations about that attempt and to add defendants who
participated in it. In his second amended complaint, Mr. Smith sought declaratory and injunctive
relief to prohibit ADOC from making another attempt to execute him by lethal injection. He also
served discovery requests on the defendants, seeking, among other things, the identities of the
people who participated in and observed ADOC’s attempt to execute him and documents
concerning ADOC’s attempt to execute him.
66.
For ten months after ADOC’s failed attempt to execute Mr. Smith by lethal
injection, ADOC threatened Mr. Smith with another attempt by the same method. It consistently
represented that it would do so and that nitrogen hypoxia was not a feasible, alternative method of
execution. For example:
In December 2022, Defendant Hamm filed a petition for a writ of certiorari in the
U.S. Supreme Court challenging the Eleventh Circuit’s holding in the Lethal
17
163a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 18 of 37
Injection Action that Mr. Smith had plausibly alleged “that nitrogen hypoxia is an
available alternative method” of execution and “that nitrogen hypoxia will
significantly reduce his pain.” Smith v. Comm’r, Ala. Dep’t of Corrs., No. 2213781, 2022 WL 17069492, at *5 (11th Cir. Nov. 17, 2022).
In February 2023, the defendants in the Lethal Injection Action moved to dismiss
Mr. Smith’s Second Amended Complaint on the ground, among others, that
nitrogen hypoxia supposedly was not an available method of execution, as
Mr. Smith had alleged, despite the Eleventh Circuit’s prior contrary determination.
See Smith v. Hamm, No. 2:22-cv-497, Defendants’ Motion to Dismiss (Doc. 78) at
24–25 (M.D. Ala.).
On July 28, 2023, the State relied on supposed changes in its lethal injection
procedures as a basis to seek dismissal of the State Court Petition. See Smith v.
State, No. CC-89-1149.61, State of Alabama’s Motion to Dismiss Smith’s
Successive Rule 32 Petition (Doc. 53) at 10–12 (Ala. Cir. Ct. Jefferson Cnty.)
67.
In May 2023, the U.S. Supreme Court denied Defendant Hamm’s petition for a writ
of certiorari. See Hamm v. Smith, 143 S. Ct. 1188 (2023). In July 2023, the district court denied
the defendants’ motion to dismiss Mr. Smith’s Eighth Amendment claim for declaratory and
injunctive relief in the Lethal Injection Action. See Smith v. Hamm, No. 2:22-cv-497, 2023 WL
4353143 (M.D. Ala. July 5, 2023). Thus, by July 2023, there were no more obstacles to discovery
after defendants had delayed it for nearly one year trying unsuccessfully in the District Court,
Court of Appeals, and U.S. Supreme Court to have Mr. Smith’s claims dismissed.
68.
Under the District Court’s scheduling order in the Lethal Injection Action, the
parties’ initial disclosures required by Federal Rule of Civil Procedure 26(a)(1) were due on
18
164a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 19 of 37
August 29. And, by operation of Rule 26(d)(2)(B), the defendants’ responses to Mr. Smith’s then
nearly nine-month-old discovery requests were due by September 7.
69.
On August 25—the eve of its discovery obligations ripening in the Lethal Injection
Action—the State moved in the Alabama Supreme Court for an order authorizing ADOC to
execute Mr. Smith by nitrogen hypoxia.
70.
At the same time the State filed its motion, defendants reversed position and moved
to dismiss the Lethal Injection Action on the ground that “Defendant Hamm has determined that
nitrogen hypoxia is an available means of execution and will be used in the execution of”
Mr. Smith and “Defendant Hamm has determined that lethal injection is not available as to
Plaintiff and will not be used in any future execution attempt of” Mr. Smith. Smith v. Hamm, No.
2:22-cv-497, Defendants’ Motion to Dismiss Pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure (Doc. 104) at ¶ 3 (M.D. Ala.). And, on August 29, the defendants moved to stay
discovery in the Lethal Injection Action.3
71.
Defendants’ efforts to avoid discovery in the Lethal Injection Action are consistent
with the historical lack of transparency into ADOC’s execution procedures. The State exercises
no greater power than when it executes condemned people. Consequently, the process by which
the State does so demands maximum transparency to ensure that it is consistent with the
Constitution and the values of the State’s citizens. ADOC’s execution processes, however, are
anything but transparent.
72.
ADOC conceals the identity of the participants in executions, what they do, and
what “pre-execution” procedures it performs on condemned people. The only witnesses to those
3
On September 20, the District Court entered a judgment enjoining Defendants “from executing
Kenneth Eugene Smith by lethal injection” and dismissed the Lethal Injection Action. Smith v.
Hamm, No. 2:22-cv-497, Final Judgment and Order (Doc. 112) at 3 (M.D. Ala.).
19
165a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 20 of 37
“pre-execution” procedures are ADOC personnel and the condemned person (who with the rare
exception of Mr. Miller and Mr. Smith) ordinarily do not live to describe it. And, as ADOC’s
statements after the botched execution of Mr. James and the failed attempts to execute Mr. Miller
and Mr. Smith indicate, ADOC cannot be relied on for a forthcoming and accurate explanation
about those events.
73.
On November 1, a slim majority of six justices of the Alabama Supreme Court
granted the motion for an order authorizing ADOC to execute Mr. Smith by nitrogen hypoxia, with
two justices dissenting. On November 8, the Governor scheduled Mr. Smith’s execution by
nitrogen hypoxia during “a thirty-hour time-frame . . . beginning at 12:00 a.m. on Thursday,
January 25, 2024, and expiring at 6:00 a.m. on Friday, January 26, 2024.
C.
ADOC’s Nitrogen Hypoxia Protocol Poses an Intolerable Risk of Superadded
Pain to Mr. Smith
74.
ADOC has never attempted to execute a condemned person by nitrogen hypoxia.
Nor has any other state or the federal government.
75.
When it moved for authorization to execute Mr. Smith by that method, ADOC
released a heavily redacted copy of the Protocol, which includes procedures for executing
condemned people by nitrogen hypoxia. Despite his requests through counsel, neither Mr. Smith
nor his counsel were provided with an unredacted copy of the Protocol or any other information
about the process by which ADOC intends to execute Mr. Smith until November 22, 2023 after
this Court ordered Defendants to produce an unredacted copy of the Protocol. See Ex. 2.
76.
As one commentator has described it, ADOC’s nitrogen hypoxia Protocol is “‘a
vague, sloppy, dangerous and unjustifiably deficient protocol . . . .’” Ed Pilkington, ‘Astonishingly
cruel’: Alabama seeks to test execution method on death row ‘guinea pig’ (The Guardian Sept. 2,
20
166a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 21 of 37
2023),
https://www.theguardian.com/world/2023/sep/02/alabama-execution-nitrogen-kenneth-
smith.
77.
Despite its vagueness, it is apparent that the Protocol is wholly inadequate to protect
Mr. Smith from violation of his Eighth Amendment right to be free from cruel and unusual
punishment.
78.
There is sparse research on how long a human must be exposed to 100% pure
nitrogen to cause death, what happens if a human is exposed to less than 100% pure nitrogen for a
prolonged period of time, or on the pain or sensations that a human exposed to nitrogen might
experience. The American Veterinary Medical Association has advised that nitrogen hypoxia is
an acceptable method of euthanasia for pigs but “is unacceptable for other mammals” because
nitrogen “create[s] an anoxic environment that is distressing for some species.”4
79.
If it does not cause death, nitrogen hypoxemia can cause dire consequences,
including a persistent vegetative state, a stroke, or the painful sensation of suffocation.
80.
A persistent vegetative state is characterized by a profound and long-lasting loss of
consciousness and cognitive function, including awareness, reasoning, and memory, and is often
considered a long-term or permanent condition.
81.
A stroke is a serious medical condition involving brain damage that can cause
failure of speech, paralysis of limbs, and other serious effects.
82.
The Protocol fails to account for and instead exacerbates the risks of those dire
consequences.
4
American Veterinary Medical Association, AVMA Guidelines for the Euthanasia of Animals:
2020 Edition.
21
167a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 22 of 37
83.
It appears that the Protocol provides for nitrogen gas to be delivered through tubing
into a mask placed and adjusted over the condemned person’s face by a member of the execution
team:
The mask will be placed and adjusted on the condemned inmate’s face. One
Execution Team member will monitor the pulse oximeter while the Execution
Team Captain verifies that the mask has been properly placed. The Execution
Team Members responsible for secondary posts will be dismissed from the
execution chamber after the mask has been properly placed.
Protocol § X.A.v; see also id. Appendix C, § 2 ¶¶ 26–29.
84.
The Protocol does not contain any guidance on the type of mask that will be used,
how it will be placed and adjusted and by whom, what training the person(s) placing and adjusting
the mask will receive on how to do that and who will provide the training, how and under what
criteria it will be determined whether the mask has been “properly placed,” or what will happen if
the mask becomes displaced during the procedure.
85.
It is critical that the mask be properly secured and sealed throughout the process.
An acknowledgement form that ADOC intends to require spiritual advisors who serve condemned
people being executed by nitrogen hypoxia expressly warns of the possibility that nitrogen can
leak outside the mask. If nitrogen can escape outside the mask, it follows that oxygen can infiltrate
inside the mask. In that event, the time to unconsciousness will increase, posing a severe risk of
dire consequences to the condemned inmate, including being left in a persistent vegetative state,
experiencing a stroke, or experiencing the painful sensation of suffocating.
86.
Many variables affect proper placement and securing of a mask. Variations in nose
structure, facial hair, obesity, and other anatomic characteristics can increase the difficulty of mask
ventilation. The Protocol does not account for those variations among condemned people to ensure
22
168a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 23 of 37
that a mask is fitted securely to each condemned person that ADOC intends to execute by nitrogen
hypoxia.
87.
In addition, movement of the face or head can dislodge a mask and break the seal,
which is more likely in an execution setting than, for example, in a medical setting. The protocol
exacerbates that possibility because it affords the condemned person an opportunity to speak after
the mask is placed over his face:
[After mask is placed,] [t]he Warden will enter the execution chamber [redacted –
filed under seal] and read the execution warrant. The condemned inmate will be
given the opportunity to make a final statement (no more than two minutes).
Id. § X.A.ix.
88.
Speaking or attempting to speak may dislodge or otherwise alter the placement of
the mask, which may result in an imperfect seal and leaking. Although the Protocol contemplates
that, after the condemned person speaks, “[t]he team members inside the execution chamber will
make a final inspection of the mask,” id. § X.A.xiii, there is nothing in the Protocol to explain how
that inspection will be completed and what it will entail to ensure that the mask remains sealed
after the condemned person speaks and, if not, adjusting the mask appropriately. Nor are there
any procedures for what happens if the mask is dislodged thereafter.
89.
The Protocol is constitutionally deficient because it does not specify any criteria for
inspecting the mask. There are no provisions identifying how the “team members” will determine
if the mask is secure and will prevent oxygen from leaking inside the mask. Furthermore, there
are no provisions detailing the training the “team members” will receive, their level of experience
with the masks being used, or the metrics that will be used to ensure that the mask is “properly
placed” and passes the “final inspection.”
23
169a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 24 of 37
90.
Moreover, while it is important to ensure that oxygen is not present under the mask
for the condemned person to inhale, it is equally important to ensure that the carbon dioxide that
the condemned person exhales does not remain under the mask for the condemned person to inhale.
91.
The theory underlying the novel method of execution by nitrogen hypoxia is that
because nitrogen is odorless and colorless, a human inhaling it will continue to breathe normally
and continue to exhale carbon dioxide. In theory, that would avoid a buildup of excess carbon
dioxide, which is what causes the sensation and pain of suffocation when a human is deprived of
oxygen by other means.
92.
If carbon dioxide that the condemned person exhales is trapped under the mask for
the condemned person to inhale, carbon dioxide will build up in the condemned person’s body,
causing him to experience the sensation and pain of suffocation. The Protocol contemplates that
“breathing air” will be supplied to the condemned person after the mask is placed and before
nitrogen is pumped into the mask. Id. §§ X.A.ii, X.A.iv. That means that carbon dioxide can be
trapped under the mask even before nitrogen flows into the mask. There is nothing in the Protocol
to indicate that there is any mechanism to remove the carbon dioxide that the condemned person
exhales that otherwise will be trapped under the mask and can cause suffocation and other dire
consequences. Absent such a mechanism, the theory on which execution by nitrogen hypoxia is
based collapses.
93.
The Protocol also is constitutionally deficient because it does not specify the purity
of the nitrogen gas that will be used or any procedures to test or otherwise determine whether it
has been contaminated. If ADOC uses less than 100% pure nitrogen for a prolonged period of
time, that entails a severe risk of the dire consequences from nitrogen hypoxia. Moreover, even if
ADOC has obtained 100% pure nitrogen for use in executions, the Protocol lacks any information
24
170a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 25 of 37
about testing to ensure the purity, the source of the nitrogen, how it is transported or stored.
Without that information, it is impossible to assess whether there is a risk that the nitrogen has
been contaminated in the process of manufacture, transportation, or storage.
94.
The Protocol also provides that when the condemned person is escorted to the
execution chamber and placed on a gurney a “pulse oximeter will be placed and secured on the
condemned inmate.” Id. § X.A.iii. A pulse oximeter measures the level of oxygen in the blood.
Under the Protocol, an execution team member is responsible for monitoring the pulse oximeter
while the mask is placed and adjusted on the condemned person’s face and for two minutes
thereafter. Id. §§ X.A.v, vi. There are no procedures for monitoring the pulse oximeter after pure
nitrogen is introduced, which could reveal that the execution should be halted because oxygen is
infiltrating the mask and raising the risk of dire consequences short of death.
95.
The Protocol is constitutionally deficient in other respects. It fails to provide
procedures for the unique circumstance of Mr. Smith who survived an attempted execution, has
PTSD, and may experience nausea if he is re-exposed to the traumatizing experience. The Protocol
fails to provide procedures for a condemned person who vomits inside the mask, which might
cause the condemned person to choke.
96.
In addition, the Protocol provides for procedures in the lead up to an execution,
including for notifying the condemned person, providing the condemned person a schedule for the
week of the execution, the “Death Watch observation period,” the placement of the condemned
person in a holding/observation cell, and visitation during the execution week. Id. §§ IV–VIII.
But the Protocol fails to provide procedures and basic safeguards for condemned people like
Mr. Smith who have survived an attempted execution, have PTSD, and may experience
exacerbating symptoms—such as intense psychological distress, extreme panic, or sleep
25
171a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 26 of 37
disruption—as they are forced to re-experience the days and weeks leading up to another execution
attempt.
97.
Instead, ADOC’s procedures exacerbate Mr. Smith’s PTSD. Since November 8,
when the Governor scheduled his planned execution, Mr. Smith has been on “single walk” status,
which means that he cannot share the same space with other Holman inmates—some of whom he
has developed familial relationships with over decades. Ex. 3. Although nothing in the Protocol
addresses “single walk” status, Defendants intend to maintain Mr. Smith isolated from his brothers
on that status for 78 days through his planned execution.
98.
“Single walk” status deprives Mr. Smith of the fellowship of his brother inmates
when he needs their friendship most. It also deprives him of the companionship of his family
during this critical period. Holman has a common visiting space. While Mr. Smith is on “single
walk” status, Mr. Smith’s family cannot schedule a visit with him when any other Holman inmate
has a scheduled visit. Mr. Smith’s “single walk” status also interferes with his relationship with
his counsel when he needs their advice most because their visits are constrained for the same
reason. And while Defendants recently permitted Mr. Smith to select one religious service that he
will be permitted to attend each week accompanied by two corrections officers, his “single walk”
status also burdens the exercise of his religion. Ex. 4.
99.
Finally, the Protocol burdens Mr. Smith’s rights to free speech and to free exercise
of his religion under the First Amendment and violates his rights under RLUIPA. Under the
Protocol, Mr. Smith will be masked as soon as he enters the execution chamber and remain masked
thereafter. Id. § X.A.v. In addition to the other deficiencies associated with the mask, it will
prevent or substantially interfere with Mr. Smith’s ability to make a statement as permitted by the
Protocol, id. § X.A.ix, and to pray audibly as to which “there is a rich history . . . at the time of a
26
172a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 27 of 37
prisoner’s execution, dating back well before the founding of our Nation.” Ramirez v. Collier, 595
U.S. 411, 427 (2022). Any such statement or prayer may not be audible and may risk consequences
associated with dislodging the mask and/or building the level of carbon dioxide under the mask.
100.
Significantly, there may be other problems with the Protocol that are shielded
beneath redactions. But based only on what is disclosed, execution by nitrogen hypoxia using the
procedures in the Protocol poses a severe risk of superadded pain to Mr. Smith.
D
There are Feasible and Available Alternatives to the Protocol
101.
Feasible and available alternative methods of execution exist that would reduce the
risk to Mr. Smith from the Protocol.
102.
ADOC can amend the Protocol to cure its deficiencies by including provisions to:
Measure each condemned person subject to execution by nitrogen hypoxia for a
custom fit mask to reduce the risk that oxygen leaks under the mask or,
alternatively, use a closed space or a hood;
Provide a condemned person an opportunity to speak and to audibly pray without
being masked.
Disclose the training “team members” will receive in placing and adjusting the
mask over the condemned person’s face, their level of experience with the masks
being used, and the metrics that will be used to ensure the mask is “properly placed”
and passes the “final inspection.”
Add a mechanism to remove carbon dioxide that the condemned person exhales
from under the mask.
Disclose the source of the nitrogen to be used, and information about its
transportation and storage to avoid contamination.
27
173a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 28 of 37
Require testing of the nitrogen gas before use to ensure purity of the nitrogen gas.
Add procedures to monitor the pulse oximeter throughout the process.
Add procedures to halt the execution if the condemned person vomits into the mask;
Add procedures for attempting to execute condemned people who have survived a
previous attempt and are experiencing PTSD as a result.
Employ a third-party licensed medical provider who will be permitted (1) to
observe the execution process from the time the condemned person is taken into
the execution chamber until completed, and (2) has the authority to call off or
postpone the execution if, in his or her judgment, the condemned person is at risk
of serious injury short of death.
103.
Alternatively, if Defendants are unwilling or unable to amend the Protocol so that
it complies with constitutional requirements, the firing squad is an available and feasible
alternative that will substantially reduce the risk to Mr. Smith of superadded pain posed by the
Protocol. Utah has a protocol for using a firing squad to carry out executions, which “is
‘sufficiently detailed to permit a finding that the State could carry it out relatively easily and
reasonably quickly.’” Nance v. Comm’r, Ga. Dep’t of Corrs., 59 F.4th 1149, 1155 (11th Cir. 2023)
(quoting Bucklew v. Precythe, 139 S. Ct. 1112, 1129 (2019)); see also Deborah W. Denno, The
Firing Squad as “A Known and Available Alternative Method of Execution” Post-Glossip, 49 U.
Mich. J.L. Reform 749, 778–92 (2016).
28
174a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 29 of 37
CLAIMS FOR RELIEF
First Claim for Relief
Violation of Mr. Smith’s Right to Due Process and to Equal Protection Under the Laws
Under the Fourteenth Amendment to the U.S. Constitution
104.
Mr. Smith incorporates paragraphs 1 through 101.
105.
At all relevant times, Defendants have been acting under color of state law.
106.
The Fourteenth Amendment to the U.S. Constitution provides, in relevant part, that
“No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1.
107.
It is Defendants’ “‘custom [to] wait[] to move for an inmate’s execution until he
has exhausted his conventional appeals: direct appeal, state postconviction, and federal habeas.”
Woods, 951 F.3d at 1292 (citation omitted in original).
108.
Mr. Smith has not exhausted his appeals.
109.
The State Court Petition is a state postconviction proceeding.
110.
Mr. Smith’s appeal from the dismissal of the State Court Petition is pending in the
Alabama Court of Criminal Appeals.
111.
Other condemned people in Alabama who elected to be executed by nitrogen
hypoxia five years ago have exhausted their appeals. See id. at 1291–92.
112.
Defendants sought and obtained authority to execute Mr. Smith by nitrogen
hypoxia even though he has not exhausted his appeals and even though other condemned people
who elected to be executed by nitrogen hypoxia have exhausted their appeals.
113.
Defendants’ actions toward Mr. Smith are arbitrary and capricious and violate its
own stated custom regarding selecting condemned people for execution.
29
175a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 30 of 37
114.
Defendants’ disparate treatment of Mr. Smith is not rationally related to a legitimate
government interest.
115.
Mr. Smith has the right to be treated the same as all other condemned people in
Alabama.
116.
Mr. Smith will suffer irreparable harm in the absence of an injunction.
Second Claim for Relief
Violation of Mr. Smith’s Right to be Free from Cruel and Unusual Punishment Under the
Eighth and Fourteenth Amendments to the U.S. Constitution
117.
Mr. Smith incorporates paragraphs 1 through 101.
118.
At all relevant times, Defendants have been acting under color of state law.
119.
The Eighth Amendment to the U.S. Constitution, as applicable to the State through
incorporation into the due process clause of the Fourteenth Amendment, prohibits “cruel and
unusual punishments.” U.S. Const. amend. VIII.
120.
A method of execution violates the Eighth Amendment if “the risk of pain
associated with the State’s method is substantial when compared to a known and available
alternative.” Bucklew, 139 S. Ct. at 1125 (citations and internal quotation marks omitted).
121.
The U.S. Supreme Court has described punishments as unconstitutionally cruel
“when they involve torture or a lingering death,” In re Kemmler, 136 U.S. 436, 447 (1890), or
when they “involve the unnecessary and wanton infliction of pain, Rhodes v. Chapman, 452 U.S.
337, 346 (1981). The Eighth Amendment forbids “forms of punishment that intensified the
sentence of death with a (cruel) superadd[ition] of terror, pain, or disgrace.” Bucklew, 139 S. Ct.
at 1124 (citation and internal quotation marks omitted, alterations in original).
30
176a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 31 of 37
122.
Defendants intend to execute Mr. Smith by nitrogen hypoxia using the Protocol,
which would expose Mr. Smith to a severe risk of a persistent vegetative state, a stroke, or the
painful sensation of suffocation, i.e., superadded pain.
123.
There are feasible and available alternatives that would reduce the risk to Mr. Smith
from executing him by nitrogen hypoxia using the Protocol, including amending the Protocol as
indicated in paragraph 100 and execution by firing squad.
124.
Mr. Smith will suffer irreparable harm in the absence of an injunction.
Third Claim for Relief
Violation of Mr. Smith’s Right to Freedom of Speech and Free Exercise of His
Religion Under the First Amendment to the U.S. Constitution
125.
Mr. Smith incorporates paragraphs 1 through 101.
126.
At all relevant times, Defendants have been acting under color of state law.
127.
The First Amendment to the U.S. Constitution, as applicable to the State through
incorporation into the due process clause of the Fourteenth Amendment, provides, in relevant part,
“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech.”
128.
Defendants’ Protocol provides for Mr. Smith to be masked when he enters the
execution chamber and to remain masked throughout the procedure.
129.
Masking will interfere with Mr. Smith’s right to make an audible statement and to
pray audibly. Any statement or prayer may not be audible and may risk consequences associated
with dislodging the mask and/or building the level of carbon dioxide under the mask.
130.
Mr. Smith will suffer irreparable harm in the absence of an injunction.
31
177a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 32 of 37
Fourth Claim for Relief
Violation of Mr. Smith’s Rights Under RLUIPA
131.
Mr. Smith incorporates paragraphs 1 through 101.
132.
At all relevant times, Defendants have been acting under color of state law.
133.
RLUIPA provides: “No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an institution . . . even if the burden results
from a general applicability, unless the government demonstrates that imposition of the burden on
that person—(1) is in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a).
134.
“In RLUIPA, in an obvious effort to effect a complete separation from the First
Amendment case law, Congress deleted reference to the First Amendment and defined the
‘exercise of religion’ to include ‘any exercise of religion, whether or not compelled by, or central
to, a system of religious belief.’” Burwell v. Hobby Lobby Stores, 573 U.S. 682, 696 (2014)
(quoting 42 U.S.C. § 2000cc-5(7)(A)). RLUIPA thus provides more “expansive protection” for
religious liberty than the United States Supreme Court case law. Holt v. Hobbs, 574 U.S. 352, 358
(2015).
135.
The Protocol that Defendants intend to use to execute Mr. Smith substantially
burdens Mr. Smith’s religious exercise to pray audibly because he will be masked as soon as he
enters the execution chamber which may prevent Mr. Smith’s prayers from being audible.
136.
The Protocol further substantially burdens Mr. Smith’s religious exercise to pray
audibly by forcing Mr. Smith to choose between abstaining from his religious practice of audible
prayer at the end of his life or face the dangerous consequences of dislodging the mask while
32
178a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 33 of 37
praying. See id. at 361 (policy that forced inmate to comply with policy in violation of his religious
beliefs or face disciplinary action substantially burdened inmate’s religious exercise).
137.
Defendants cannot establish that the burden on Mr. Smith’s religious exercise is
justified by a compelling governmental interest and, even if they could, cannot establish that the
burden on Mr. Smith’s religious exercise is the least restrictive means to further any purported
compelling governmental interest. See id. at 362.
138.
Mr. Smith will suffer irreparable harm in the absence of an injunction.
Fifth Claim for Relief
Violation of Mr. Smith’s Rights Under ARFA
139.
Mr. Smith incorporates paragraphs 1 through 101.
140.
At all relevant times, Defendants have been acting under color.
141.
ARFA provides: “Government shall not burden a person’s freedom of religion even
if the burden results from a general rule of applicability, except . . . if it demonstrates that
application of the burden to the person (1) Is in furtherance of a compelling governmental interest;
and (2) Is the least restrictive means of furthering that compelling governmental interest.” Ala.
Const. art. I, § 3.01(V).
142.
The Protocol that Defendants intend to use to execute Mr. Smith burdens
Mr. Smith’s religious exercise to pray audibly because he will be masked as soon as he enters the
execution chamber which may prevent Mr. Smith’s prayers from being audible.
143.
The Protocol further burdens Mr. Smith’s religious exercise to pray audibly by
forcing Mr. Smith to choose between abstaining from his religious practice of audible prayer at
the end of his life or face the dangerous consequences of dislodging the mask while praying. See
33
179a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 34 of 37
id. at 361 (policy that forced inmate to comply with policy in violation of his religious beliefs or
face disciplinary action substantially burdened inmate’s religious exercise).
144.
Defendants cannot establish that the burden on Mr. Smith’s religious exercise is
justified by a compelling governmental interest and, even if they could, cannot establish that the
burden on Mr. Smith’s religious exercise is the least restrictive means to further any purported
compelling governmental interest. See id. at 362.
145.
Mr. Smith will suffer irreparable harm in the absence of an injunction.
PRAYER FOR RELIEF
WHEREFORE, Mr. Smith respectfully requests that this Court grant the following relief:
1. With respect to the First Claim for Relief,
a. A declaration that attempting to execute Mr. Smith by nitrogen hypoxia before
he has exhausted his pending appeals would violate his right to equal protection
under the laws under the Fourteenth Amendment to the U.S. Constitution.
b. A preliminary and permanent injunction prohibiting Defendants from executing
Mr. Smith by nitrogen hypoxia until he has exhausted his pending appeals or,
alternatively, a stay of execution pending completion of Mr. Smith’s appeals.
2.
With respect to the Second Claim for Relief,
a. A declaration that attempting to execute Mr. Smith by nitrogen hypoxia using
the procedures outlined in the Protocol would violate his right to be free from
cruel and unusual punishment under the Eighth and Fourteenth Amendments to
the U.S. Constitution.
b. A preliminary and permanent injunction prohibiting Defendants from executing
Mr. Smith by nitrogen hypoxia using the procedures outlined in the Protocol.
34
180a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 35 of 37
3. With respect to the Third Claim for Relief,
a. A declaration that attempting to execute Mr. Smith by nitrogen hypoxia using
the Protocol would violate his right to freedom of speech and free exercise of
his religion under the First Amendment to the U.S. Constitution.
b. A preliminary and permanent injunction prohibiting Defendants from
attempting to execute Mr. Smith by nitrogen hypoxia using the Protocol.
4. With respect to the Fourth Claim for Relief,
a. A declaration that attempting to execute Mr. Smith by nitrogen hypoxia under
the current Protocol would substantially burden his right to religious exercise
under RLUIPA.
b. A preliminary and permanent injunction prohibiting Defendants from
attempting to execute Mr. Smith by nitrogen hypoxia using the Protocol.
5. With respect to the Fifth Claim for Relief,
a. A declaration that attempting to execute Mr. Smith by nitrogen hypoxia under
the current Protocol would burden his right to religious exercise under ARFA.
b. A preliminary and permanent injunction prohibiting Defendants from
attempting to execute Mr. Smith by nitrogen hypoxia using the Protocol.
6. Such other relief as this Court deems just and proper.
Respectfully submitted, this 20th day of November, 2023.
__/s/ Andrew B. Johnson_______________
Andrew B. Johnson
BRADLEY ARANT BOULT
CUMMINGS LLP
1819 Fifth Avenue North
Birmingham, Alabama 35203
35
181a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 36 of 37
(205) 521-8000
ajohnson@bradley.com
Jeffrey H. Horowitz*
David A. Kerschner*
Robert M. Grass*
ARNOLD & PORTER KAYE
SCHOLER LLP
250 West 55th Street
New York, New York 10019-9710
(212) 836-8000
jeffrey.horowitz@arnoldporter.com
david.kerschner@arnoldporter.com
robert.grass@arnoldporter.com
Ashley Burkett*
Angelique Ciliberti (ASB: 1504-T44C)
ARNOLD & PORTER KAYE
SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001-3743
(202) 942-5000
ashley.burkett@arnoldporter.com
angelique.ciliberti@arnoldporter.com
Attorneys for Plaintiff Kenneth Eugene Smith
*admitted pro hac vice
36
182a
Case 2:23-cv-00656-RAH Document 31 Filed 11/28/23 Page 37 of 37
CERTIFICATE OF SERVICE
I certify that on November 28, 2023, I electronically filed the foregoing with the Clerk of
the Court using the Pacer system, which will send notification to the following:
Richard D. Anderson
Assistant Attorney General
Office of the Attorney General
Capital Litigation Division
501 Washington Avenue
Montgomery, AL 36130
Richard.Anderson@AlabamaAG.gov
Attorney for Defendants
__/s/ Andrew B. Johnson_______________
Of Counsel
37
183a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 1 of 52
EXHIBIT A
184a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 2 of 52
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
KENNETH EUGENE SMITH
)
)
Plaintiff,
)
)
v.
)
)
JOHN Q. HAMM, Commissioner, Alabama )
Department of Corrections, and
)
)
TERRY RAYBON, in his official
)
Capacity as Warden, Holman
)
Correctional Facility,
)
)
Case No. 2:23-cv-00656-RAH
CAPITAL CASE
EXECUTION SCHEDULED FOR
JANUARY 25, 2024
DECLARATION OF ROBERT JASON YONG, M.D. IN SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION
I, Robert Jason Yong, declare under penalty of perjury as follows:
I have been asked by Arnold & Porter to provide an expert review on nitrogen hypoxia.
Specifically, in preparing this report, I have referenced textbooks, journal articles, guidelines, and
the Alabama Department of Corrections’ Execution Protocol for Nitrogen Hypoxia dated August
2023 (the Protocol).
I also rely on my medical training and clinical experience as an
anesthesiologist. My expert opinions on the subject are set forth below. All the opinions stated in
this medical report are stated to a reasonable degree of medical certainty.
I.
Qualifications
I am the Chief of Pain Medicine and serve as the Medical Director of the Pain Management
Center at Brigham and Women’s Hospital in Boston, Massachusetts, which is affiliated with
Harvard Medical School. I am on the faculty of Harvard Medical School, where I am an Assistant
Professor in Anesthesia. In 2014, 2015, 2016, 2018, 2020, 2021, and 2023, I was awarded the
Pain Attending of the Year Award for the Department of Anesthesiology at Brigham and Women’s
1
185a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 3 of 52
Hospital. Prior to this, I was an Assistant Professor at Johns Hopkins Hospital in Baltimore,
Maryland, where I was awarded Outstanding Teacher of the Year, Department of Anesthesiology
in 2013.
I obtained my Medical Degree from Baylor College of Medicine. I completed my
residency in anesthesiology, perioperative medicine, and pain medicine at Brigham and Women’s
Hospital, Harvard Medical School. As a resident at Brigham and Women’s Hospital, I received
recognition as the Distinguished Resident of the Year and was selected as a Foundation for
Anesthesia Education and Research (FAER) Practice Management Scholar. During my last year
of residency, I was elected as a Chief Resident of the Anesthesiology Department. Following
residency, I completed a fellowship in Pain Medicine at Brigham and Women’s Hospital, Harvard
Medical School. I am licensed to practice medicine in Massachusetts and double-board certified
in Anesthesiology and Pain Management.
I have significant expertise with the subject matter of this case. I have substantial
knowledge, training, and experience in the physiology and pathophysiology of the respiratory
system and ventilation. I have over 10 years of experience managing the airways of patients while
monitoring and managing their ventilation. As an anesthesiologist managing adequate oxygen
levels around the time of surgery is paramount, and I have developed substantial experience
monitoring and maintaining oxygen levels. I have a deep understanding of physiology and
pharmacology with board certification in Anesthesiology.
Attached as Exhibit 1 is a list of references considered in preparing my report. My CV is
attached hereto as Exhibit 2.
I reserve the right to supplement or amend my opinions based upon any new information
or medical literature that subsequently becomes available to me. I further reserve the right to
2
186a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 4 of 52
comment on any opinions offered by defendants’ experts submitted in briefing, or at deposition or
hearings.
In addition, I reserve the right to discuss general concepts within the field of
Anesthesiology to provide context for any of the opinions discussed in this report. Finally, I
reserve the right to use graphics or demonstratives at hearings to illustrate the concepts discussed
in my report.
I submit this Declaration in support of Kenneth Eugene Smith’s Motion for Preliminary
Injunction.
II.
Background
A.
Anatomy and Physiology
The human circulatory system or cardiovascular system allows the flow of blood
throughout the body. The blood transports nutrients and oxygen to the tissues and carries carbon
dioxide and waste products away to be metabolized or excreted. The heart serves as the main
pump moving blood to the vital organs, including the heart, lungs, kidneys, liver, and brain 1.
The human respiratory system allows the exchange of vital gasses via the lungs into the
bloodstream2. The gasses enter the respiratory system via the nose or mouth and pass through the
trachea before branching into the bronchi then bronchioles and finally the alveoli. The blood from
the right side of the heart pumps into the lungs and back to the left side of the heart before
circulating through the rest of the body. As blood flows from the heart to the lungs, the blood
vessels branch into smaller and smaller vessels ending as capillaries that surround the alveoli. It
is at the level of the alveoli that gasses are exchanged from the air to the blood stream.
1
InformedHealth.org [Internet]. Cologne, Germany: Institute for Quality and Efficiency in Health Care (IQWiG);
2006-. How does the blood circulatory system work? 2010 Mar 12 [Updated 2019 Jan 31]. Available from:
https://www.ncbi.nlm.nih.gov/books/NBK279250/
2
Patwa A, Shah A. Anatomy and physiology of respiratory system relevant to anaesthesia. Indian J Anaesth. 2015
Sep;59(9):533-41. doi: 10.4103/0019-5049.165849. PMID: 26556911; PMCID: PMC4613399.
3
187a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 5 of 52
Inspired room air is comprised of nitrogen (~78%), oxygen (~21%), argon (~0.9%), carbon
dioxide (0.035%), and other gasses. The gradient of particular gasses in the alveoli compared to
the bloodstream allows for gasses to be exchanged from the air to the blood. In normal states,
oxygen is delivered to the blood and carbon dioxide is taken out of the blood.
The cells in humans require the oxygen for normal physiologic functioning 3. Hypoxemia
describes a condition in which there is a lower-than-normal level of oxygen in the blood. It occurs
when the oxygen saturation in the bloodstream is below the expected or necessary levels for the
body to function correctly. Hypoxia describes a state in which the cells have insufficient oxygen
to maintain normal functioning, while hypoxemia refers specifically to low oxygen levels in the
blood. An individual experiencing hypoxemia or hypoxia is still capable of exhaling carbon
dioxide. By contrast, asphyxia describes the inability to inhale oxygen and the inability to exhale
carbon dioxide. Being unable to exhale excess carbon dioxide leads to a higher-than-normal level
of carbon dioxide in the blood, a state known as hypercarbia. Asphyxia, and resulting hypercarbia,
can lead to the distressing physical sensation of suffocation.
B.
Nitrogen hypoxemia
Nitrogen hypoxemia is a condition that can occur when a person is exposed to very highor very low-pressure environments, such as deep-sea diving or high-altitude locations. Nitrogen
hypoxemia occurs when the increased pressure causes the body to take in more nitrogen than usual,
which can dilute the amount of oxygen available for the body's tissues and cells. This can lead to
a decrease in the body's oxygen levels, resulting in symptoms like dizziness, confusion, shortness
of breath, and, in severe cases, even loss of consciousness.
3
Ortiz-Prado E, Dunn JF, Vasconez J, Castillo D, Viscor G. Partial pressure of oxygen in the human body: a general
review. Am J Blood Res. 2019 Feb 15;9(1):1-14. PMID: 30899601; PMCID: PMC6420699.
4
188a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 6 of 52
Insufficient blood oxygen (hypoxemia) leads to tissue damage and catastrophic damage to
vital organs4. There are many causes of hypoxemia including anemia, acute respiratory distress
syndrome, heart failure, etc. The brain has substantial energy demands, making it particularly
susceptible to the effects of low oxygen in its cells (hypoxia). Despite its small size relative to the
entire body, the brain consumes a significant portion of the oxygen supply (approximately 20%).
Normally, when the brain requires more oxygen, the body responds by increasing blood flow to
meet this demand. However, both hypoxemia and reduced blood supply (ischemia) can result in
damage to the brain. The longer the brain is deprived of adequate oxygen or blood flow, the more
extensive and widespread the resulting damage becomes. Specific regions of the brain, including
the brainstem, hippocampus, and cerebral cortex, are particularly vulnerable to this type of injury.
This damage can become permanent unless oxygen levels are promptly restored. When oxygen
levels are insufficient, brain cells can undergo cell death, primarily through a process called
necrosis, and delayed cell death known as apoptosis may also occur 5. Environments deficient in
oxygen can result in nausea, vomiting, dizziness, confusion, and impaired judgement 6.
Breathing in 100% nitrogen gas would result in hypoxemia, eventual end-organ damage,
and ultimately death. However, there is a lack of data regarding exactly how long a person must
be exposed to 100% nitrogen to lead to death, or what happens at exposures to slightly less than
100% nitrogen for prolonged periods of time. As noted below, if a person is exposed to less than
100% nitrogen, there is a risk that the person could transition to a persistent vegetative state, have
a stroke, or experience the painful sensation of suffocation instead of dying.
4
Michiels C. Physiological and pathological responses to hypoxia. Am J Pathol. 2004 Jun;164(6):1875-82. doi:
10.1016/S0002-9440(10)63747-9. PMID: 15161623; PMCID: PMC1615763.
5
Michiels C. Physiological and pathological responses to hypoxia. Am J Pathol. 2004 Jun;164(6):1875-82. doi:
10.1016/S0002-9440(10)63747-9. PMID: 15161623; PMCID: PMC1615763.
6
Harding BE, Wolf BC. Case report of suicide by inhalation of nitrogen gas. Am J Forensic Med Pathol. 2008
Sep;29(3):235-7. doi: 10.1097/PAF.0b013e318183240c. PMID: 18725778.
5
189a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 7 of 52
C.
Challenges with nitrogen hypoxemia
a.
Challenges With Using Masks To Administer Gas
During administration of anesthetics in the operating room, the anesthesiologist's job is to
reduce the risk that a patient experiences hypoxemia before the anesthesia becomes fully effective.
In a clinical setting, patients are typically "pre-oxygenated" before receiving anesthesia: The mask
is filled with 100% oxygen to flood the body's cells with oxygen. After pre-oxygenation, the
patient can be delivered anesthesia via the mask or intravenously. Once the patient is no longer
able to breathe independently, the anesthesiologist mask-ventilates the patient for the duration of
the anesthesia.
When pre-oxygenating a patient, the priority is on ensuring the mask has a tight fit to make
sure there is no leakage and that the maximum amount of oxygen is delivered to the patient. Masks
generally come in a few sizes. Oftentimes, mask ventilation can be difficult if the mask does not
appropriately fit7. Variations in nose structure, facial hair, obesity, and other anatomic variability
can increase the difficulty of mask ventilation.
While mask ventilating a patient during anesthesia, the most common set-up places the
anesthesiologist’s left hand on the mask securing it to the patient’s face and the right hand on the
ventilation bag. The left hand is positioned such that the thumb is on the upper portion of the mask
placing downward pressure on the nasal bridge, the pointer and middle fingers are placed on the
lower portion of the mask placing downward pressure on the chin, and the ring finger and pinky
are positioned on the patient’s jaw or mentum applying upward pressure against the mask to create
a tight seal. In a clinical setting, the anesthesiologist is close to the patient, holding the mask in
7
Kapoor MC, Rana S, Singh AK, Vishal V, Sikdar I. Nasal mask ventilation is better than face mask ventilation in
edentulous patients. J Anaesthesiol Clin Pharmacol. 2016 Jul-Sep;32(3):314-8. doi: 10.4103/0970-9185.168262.
PMID: 27625477; PMCID: PMC5009835.
6
190a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 8 of 52
position and, at times, manually squeezing the ventilation bag. If there is a poor mask seal, the
anesthesiologist would be in a position to feel air leaking out around the mask.
An alternative set-up utilizes straps around the back of the patient’s head that attach to the
mask and secure it to the patient’s face without the anesthesiologist needing to hold the mask in
place manually. Straps can be used if the patient is cooperative and has normal anatomy.
However, if a patient resists or turns their head the mask can be dislodged or the seal broken.
Because of these limitations with straps, the preferred practice is to have the anesthesiologist hold
the mask.
In addition to pre-oxygenating a patient, masks are sometimes used in clinical practice to
apply anesthesia directly. The mask is fitted to a person while they are conscious (whether by
straps or otherwise), and then the person loses consciousness, which causes changes to the face as
the facial muscles relax. These facial changes can cause the mask to dislodge or the seal to be
broken. In a clinical setting, an anesthesiologist will be able to adjust their hand position or adjust
the mask as the patient loses consciousness to ensure the seal is not broken. Additionally, when
administering anesthesia, a broken seal that allows for the incursion of some oxygen entering the
patient’s mask is acceptable because the goal is not to completely limit the patient’s oxygen levels.
Anesthesiology breathing circuits that have inspiratory and expiratory elements contain a
“scrubber,” an apparatus to eliminate carbon dioxide from the mask when the patient exhales (see
Figure 1 below). Regardless of what mix of gasses a person inhales through a breathing circuit,
normal physiological processes mean that a person will always continue to exhale carbon dioxide.
Scrubbing carbon dioxide from the patient’s air is essential to avoid re-breathing exhaled carbon
dioxide, which could cause asphyxiation, hypercarbia, and the sensation of suffocation. The
scrubber removes carbon dioxide from the mask by absorbing and storing it; a common carbon
7
191a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 9 of 52
dioxide-specific absorber is soda lime, a combination of sodium hydroxide and calcium hydroxide.
Without a mechanism to remove carbon dioxide, a person may experience asphyxiation and the
sensation of suffocation.
Figure 1: Example of carbon dioxide “scrubber” in a mechanical ventilation system with
inspiratory and expiratory elements8.
If a patient vomits into a mask during the administration of anesthesia, anesthesiologists
use suction to remove any vomit from inside the mask. Often this requires removing the mask in
order to properly suction out all material, to ensure the patient does not inhale and choke on their
own vomit. The mask would then be cleaned or exchanged for a new mask.
b.
Alabama Department of Corrections’ Execution Protocol for
Nitrogen Hypoxia
I have reviewed a redacted copy of the Protocol and the accompanying spiritual advisor
waiver form. While the Protocol is heavily redacted, making it difficult to assess the complete
8
George Mychaskiw II, Scott C. Carriker, Richard G. Cipolli, Measurement of Expiratory Limb Circuit Pressure: A
Potential Anesthesia Machine Safety Issue, 25 Anesthesia Patient Safety Foundation Newsletter 2 (Summer 2010),
https://www.apsf.org/article/measurement-of-expiratory-limb-circuit-pressure-a-potential-anesthesia-machinesafety-issue/.
8
192a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 10 of 52
process, based on the information provided I have identified several areas of concern. Each
concern could result in the condemned person being transitioned to a persistent vegetative state,
having a stroke, experiencing the painful sensation of suffocation, choking on aspirated vomit, or
other complications if not properly rectified.
First, the Protocol does not provide adequate detail on the mechanism of delivery of the
nitrogen or how a mask would be maintained in position throughout the process. If protocols are
designed based on normal, standard operating procedures for the delivery of gasses, then there is
likely an assumption of patient compliance and minimal movement. Without patient compliance
and minimal movement, it is difficult to ensure that a mask will remain sealed and in the correct
position.
Delivery of nitrogen gas would require a closed chamber or a tightly sealed mask. The
Protocol provides little information on what is being done to secure the mask and confirm a tight
seal. The Protocol notes that a mask will be placed and adjusted on the condemned person’s face
and that there will be a final inspection of the mask, but there is no information on how this will
be done, the training of the persons(s) performing the inspection, what the inspection is looking
for, and what (if anything) will be done if the team determines there is not a closed seal. The
movement of the condemned person while speaking or otherwise moving their head, including
small mouth movements such as quiet but audible prayer, along with changes to the facial muscles
when they lose consciousness, may result in an imperfect seal resulting in leaking. The Protocol
calls for the condemned person to give his final statement after the mask has been placed on him.
Following the final statement, the Protocol indicates that team members will conduct a final
inspection of the mask to verify proper placement. However, there is no information about how
the team will monitor the seal of the mask once the nitrogen hypoxia system is activated.
9
193a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 11 of 52
If a mask does not fit or the chamber is not completely closed, entrainment of room air can
occur allowing for some oxygen to be inspired. A mandatory waiver for spiritual providers
remaining in the room highlights the possibility that nitrogen could leak into the room during the
execution. If nitrogen can leak out of the mask, that would inversely mean that room air containing
oxygen could be entrained into the mask. In the hospital setting, small amount of oxygen entering
the patient’s mask is acceptable because the patient is receiving breathable air. In contrast, in an
execution by nitrogen hypoxia setting, breathing oxygen would likely prolong the time to reach
unconsciousness which could lead to a persistent vegetative state or other complications.
In addition to a tight seal, a mask system must include a scrubber to remove carbon dioxide
from the air the condemned person exhales. The Protocol does not specify whether the mask
includes a carbon dioxide scrubber or any other mechanism to remove excess carbon dioxide. If
the mask does not include a scrubber, the condemned person could re-breathe carbon dioxide and
experience hypercarbia, asphyxiation, and the painful sensation of suffocation.
Second, the Protocol does not take into account what will happen if the condemned person
vomits into the mask or has a seizure. As noted above, environments deficient in oxygen can result
in nausea and vomiting. If vomit is not cleared from the mask, the condemned person could inhale
the vomit and asphyxiate, resulting in painful physical sensations of choking and suffocation. The
Protocol provides no instructions for clearing vomit out of the mask.
The Protocol also does not specify what should be done in the event of a seizure, either to
ensure the mask remains secured to the condemned person’s face despite the rapid movements
associated with seizures or to identify criteria to stop the process of nitrogen administration if there
is a risk the condemned person will not die but rather enter a persistent vegetative state or other
damage short of death. Given the lack of data on nitrogen hypoxemia, the risk of vomiting or
10
194a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 12 of 52
seizure is unknown. However, the fact that the Protocol does not account for any risk of vomiting
or seizure further indicates that the current Protocol is insufficient for humane administration of
nitrogen hypoxia.
Third, the Protocol does not specify the purity of the nitrogen gas to be used. To the extent,
the Protocol calls for anything less than 100% nitrogen gas then the condemned may transition to
a persistent vegetative state, have a stroke, experience the painful sensation of suffocation or suffer
other complications. Likewise, there is no discussion on what testing is performed to ensure purity
of the gas being used, nor is there any information on where the nitrogen is sourced and how it is
transported or stored. In a clinical setting, when we provide oxygen or any other type of gas to a
patient, there are procedures in place to confirm the quality of the product and make sure it is
transported and stored in an appropriate manner to avoid problems such as possible contamination.
Fourth, the Protocol does not provide for continued monitoring of blood oxygen levels or
the condemned person’s heart rate as the nitrogen is being administered, in order to assess whether
the blood oxygen levels are reducing as planned. The Protocol states that a pulse oximeter, which
reads blood oxygen levels, will be affixed to the condemned person before administration of
nitrogen and will be monitored for two minutes. However, the Protocol provides no information
on how blood oxygen levels or the condemned person’s heart rate will be monitored after
administration of nitrogen begins. Nor does the Protocol establish criteria for shutting down the
nitrogen hypoxia system if the condemned person’s blood oxygen or pulse gets low but not low
enough to cause death. Given the lack of scientific data about blood oxygen levels necessary to
cause death, the Protocol’s failure to monitor blood oxygen levels and heart rate after nitrogen
administration puts the condemned person at risk of entering a permanent vegetative state or
experiencing other physiological damage short of death.
11
195a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 13 of 52
Lastly, there is a dearth of research regarding pain or sensations felt during nitrogen
hypoxemia, and major questions remain for how long to administer 100% nitrogen before death
occurs. The American Veterinary Medical Association (AVMA) has determined nitrogen hypoxia
is acceptable for euthanasia of pigs but “is unacceptable for other mammals.” 9 According to the
AVMA euthanasia guidelines, nitrogen “create[s] an anoxic environment that is distressing for
some species.”10 If incomplete or unsuccessful, one potential outcome is a transition to a persistent
vegetative state.
D.
Sensation of Suffocation
Suffocation refers to the state or process of dying as a result of being asphyxiated, which
occurs when a person can neither inhale oxygen nor exhale carbon dioxide. An inability to rid the
body of excess carbon dioxide leads to an accumulation of carbon dioxide in the blood
(hypercarbia). When blood carbon dioxide levels rise too high, the blood pH levels become more
acidic in a process called respiratory acidosis. The physical sensations associated with respiratory
acidosis include anxiety, confusion, headache, drowsiness, and stupor 11.
E.
Persistent Vegetative State
A persistent vegetative state (PVS) is a medical condition characterized by a profound and
long-lasting loss of consciousness and cognitive function 12. In PVS, individuals appear to be awake
but lack awareness of themselves or their surroundings. They may have cycles of sleep and
9
American Veterinary Medical Association, AVMA Guidelines for the Euthanasia of Animals: 2020 Edition, at 28.
American Veterinary Medical Association, AVMA Guidelines for the Euthanasia of Animals: 2020 Edition, at 28.
11
James L. Lewis III. Respiratory Acidosis. Merck Manual: Professional Version (Jul. 2023),
https://www.merckmanuals.com/professional/endocrine-and-metabolic-disorders/acid-base-regulation-anddisorders/respiratory-acidosis.
12
Zeman A. Persistent vegetative state. Lancet. 1997 Sep 13;350(9080):795-9. doi: 10.1016/S0140-6736(97)064477. PMID: 9298013.
10
12
196a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 14 of 52
wakefulness but do not exhibit purposeful responses to their environment or communicate in
meaningful ways.
People in a persistent vegetative state experience significant damage to the cerebral cortex,
the part of the brain responsible for conscious thought, perception, and decision-making. This
damage results in the loss of cognitive functions like awareness, reasoning, and memory. Despite
the loss of higher brain functions, individuals in a PVS may retain some basic bodily functions
such as breathing, digestion, and reflexes. They may appear to move, make noises, or even open
their eyes, but these actions are typically involuntary and not indicative of consciousness. The
prognosis for individuals in a persistent vegetative state is generally poor. While some may
recover partially or regain minimal awareness, many do not show significant improvement over
time. PVS is often considered a long-term or permanent condition. The care of patients in PVS
requires feeding, bathing, housing, and the personnel required to carry out those tasks. Costs of
caring for individuals in a persistent vegetative state are estimated to be >$90,000 per year 13.
F.
Stroke
If the patient does not develop PVS, an alternative scenario would be the development of
a stroke where part of the brain is damaged. Depending on the area damaged, the residual effect
could be failure of speech, movement of limbs, alterations of any of the senses, and much more.
On average, the lifetime cost of stroke per person is estimated to be >$100,000 14.
13
Fields AI, Coble DH, Pollack MM, Cuerdon TT, Kaufman J. Outcomes of children in a persistent vegetative state.
Crit Care Med. 1993 Dec;21(12):1890-4. doi: 10.1097/00003246-199312000-00016. PMID: 8252894.
14
Taylor TN, Davis PH, Torner JC, Holmes J, Meyer JW, Jacobson MF. Lifetime cost of stroke in the United States.
Stroke. 1996;27:1459–1466. https://doi.org/10.1161/01.STR.27.9.1459. See also Johnson BH, Bonafede MM,
Watson C. Short- and longer-term health-care resource utilization and costs associated with acute ischemic stroke.
Clinicoecon Outcomes Res. 2016; 8:53-61. doi: 10.2147/CEOR.S95662. PMCID: PMC4770080. PMID: 26966382.
(estimating $140,048 lifetime cost for ischemic strokes).
13
197a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 15 of 52
My engagement is ongoing, and should any additional material information become
available to me, I reserve the right to modify or supplement my conclusions and opinions. The
opinions expressed in this Declaration are my own and are made to a reasonable degree of medical
certainty. I declare under penalty of perjury that the foregoing is true and correct under 28 U.S.C.
§ 1746.
Executed on this 17th day of November 2023,
R. Jason Yong, MD MBA
14
198a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 16 of 52
EXHIBIT 1
US 175044333v1
199a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 17 of 52
Exhibit 1: Materials Considered List
Alabama Department of Corrections, Execution Protocol for Nitrogen Hypoxia (Aug. 2023).
American Veterinary Medical Association, AVMA Guidelines for the Euthanasia of Animals: 2020
Edition, at 28.
Committee on Standards and Practice Parameters, Standards for Basic Anesthetic Monitoring,
American Society of Anesthesiologists (Dec. 13, 2020), https://www.asahq.org/standards-andpractice-parameters/standards-for-basic-anesthetic-monitoring.
Fields AI, Coble DH, Pollack MM, Cuerdon TT, Kaufman J. Outcomes of children in a persistent
vegetative state. Crit Care Med. 1993 Dec;21(12):1890-4. doi: 10.1097/00003246-19931200000016. PMID: 8252894.
George Mychaskiw II, Scott C. Carriker, Richard G. Cipolli, Measurement of Expiratory Limb
Circuit Pressure: A Potential Anesthesia Machine Safety Issue, 25 Anesthesia Patient Safety
Foundation Newsletter 2 (Summer 2010), https://www.apsf.org/article/measurement-of-expiratorylimb-circuit-pressure-a-potential-anesthesia-machine-safety-issue/.
Harding BE, Wolf BC. Case report of suicide by inhalation of nitrogen gas. Am J Forensic Med
Pathol. 2008 Sep;29(3):235-7. doi: 10.1097/PAF.0b013e318183240c. PMID: 18725778.
InformedHealth.org [Internet]. Cologne, Germany: Institute for Quality and Efficiency in Health
Care (IQWiG); 2006-. How does the blood circulatory system work? 2010 Mar 12 [Updated 2019
Jan 31]. Available from: https://www.ncbi.nlm.nih.gov/books/NBK279250/
James L. Lewis III, Respiratory Acidosis, Merck Manual: Professional Version (Jul. 2023),
https://www.merckmanuals.com/professional/endocrine-and-metabolic-disorders/acid-baseregulation-and-disorders/respiratory-acidosis.
Johnson BH, Bonafede MM, Watson C. Short- and longer-term health-care resource utilization and
costs associated with acute ischemic stroke. Clinicoecon Outcomes Res. 2016; 8:53-61. doi:
10.2147/CEOR.S95662. PMCID: PMC4770080. PMID: 26966382. (estimating $140,048 lifetime
cost for ischemic strokes).
Kapoor MC, Rana S, Singh AK, Vishal V, Sikdar I. Nasal mask ventilation is better than face mask
ventilation in edentulous patients. J Anaesthesiol Clin Pharmacol. 2016 Jul-Sep;32(3):314-8. doi:
10.4103/0970-9185.168262. PMID: 27625477; PMCID: PMC5009835.
Michiels C. Physiological and pathological responses to hypoxia. Am J Pathol. 2004
Jun;164(6):1875-82. doi: 10.1016/S0002-9440(10)63747-9. PMID: 15161623; PMCID:
PMC1615763.
Morgan & Mikhail's Clinical Anesthesiology (John F. Butterworth IV, et al., eds., 7th ed. 2022).
15
200a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 18 of 52
Ortiz-Prado E, Dunn JF, Vasconez J, Castillo D, Viscor G. Partial pressure of oxygen in the human
body: a general review. Am J Blood Res. 2019 Feb 15;9(1):1-14. PMID: 30899601; PMCID:
PMC6420699.
Patwa A, Shah A. Anatomy and physiology of respiratory system relevant to anaesthesia. Indian J
Anaesth. 2015 Sep;59(9):533-41. doi: 10.4103/0019-5049.165849. PMID: 26556911; PMCID:
PMC4613399.
Stoelting's Anesthesia and Co-Existing Disease (Roberta L. Hines & Stephanie B. Jones, eds., 8th
ed. 2022).
Taylor TN, Davis PH, Torner JC, Holmes J, Meyer JW, Jacobson MF. Lifetime cost of stroke in the
United States. Stroke. 1996;27:1459–1466. https://doi.org/10.1161/01.STR.27.9.1459.
Zeman A. Persistent vegetative state. Lancet. 1997 Sep 13;350(9080):795-9. doi: 10.1016/S01406736(97)06447-7. PMID: 9298013.
16
201a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 19 of 52
EXHIBIT 2
US 175044333v1
202a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 20 of 52
203a
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 21 of 52
2012-2013
Assistant Professor
Anesthesia
Johns Hopkins Medical
School, Baltimore, MD
2013-2019
Instructor
Anaesthesia
Harvard Medical School,
Boston, MA
2019-
Assistant Professor
Anaesthesia
Harvard Medical School,
Boston, MA
Appointments at Hospitals/Affiliated Institutions:
2012-2013
Attending
Anesthesia
Johns Hopkins Hospital
2013-
Attending
Anesthesia
Brigham & Women's
Hospital
Other Professional Positions:
2016-2020
Scientific Advisory
Board
axialHealthcare
12 days per year
2016-
Consultant
Medtronic
2 days per year
2017-
Consultant
Nevro
2 days per year
2019-2021
Consultant
Endo Pharmaceuticals
12 days per year
2019-
Consultant
Abbott
2 days per year
Major Administrative Leadership Positions:
Local
2013-2017
Founding Medical Director of Pain
Management
Brigham and Women’s Faulkner
Hospital
2013-
Founding Co-Director, Spine Center
Brigham and Women’s Faulkner
Hospital
2014-2021
Associate Program Director of Pain
Management
Brigham and Women’s Hospital
2014-
Co-founder and Facilitator: Fellow
Lecture Series
Brigham and Women’s Faulkner
204a
2
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 22 of 52
2017-
Medical Director of Pain Management
Center
Brigham and Women’s Hospital
2020-2021
Associate Chief of Pain Medicine
Division
Brigham and Women’s Hospital
2021-2023
Chief of Pain Medicine Division
Brigham and Women’s Hospital
2023-
Associate Chief of Pain Medicine
Division
Brigham and Women's Hospital
Committee Service:
Local
2010-2011
Residency Admissions Interview
Committee
Department Anesthesiology, Brigham
and Women’s Hospital
2012-2013
Residency Admissions Interview
Committee
Department Anesthesiology, Johns
Hopkins Hospital
2013-2015
Medical Executive Committee
Brigham and Women’s Faulkner
2013-
Fellowship Admissions Interview
Committee
Brigham and Women’s Hospital
2014-
Ambulatory Advisory Council
Brigham and Women’s Faulkner
2014-
Pain Fellowship Clinical Competency
Committee
Brigham and Women’s Hospital
2014-
Program Evaluation Committee
Brigham and Women’s Hospital
2015-2018
Opioid Management Subcommittee
Brigham and Women’s Faulkner
2015-2019
Opiate Ad Hoc Committee
Harvard Medical School
2016-2020
Office for Multicultural Careers Advisory
Committee
Brigham and Women’s Hospital
2016-
B CORE Standards Committee
Brigham and Women’s Faulkner
2017-
Residency Admissions Committee
Brigham and Women’s Hospital
205a
3
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 23 of 52
2017-
Residency Clinical Competency
Committee
Brigham and Women’s Hospital
2019-
Faculty Board, Department of
Anesthesiology
Brigham and Women’s Hospital
2014-
Program Director Committee,
Representing BWH Pain Medicine
Fellowship
American Board of Anesthesiology
2016-
MOCA Minute: Pain Medicine
Subcommittee
American Board of Anesthesiology
2022-2022
Program and Evaluation Committee,
Summer 2022 Meeting
Eastern Pain Association
2023-2023
Program and Evaluation Committee
Chair, Annual Meeting
Eastern Pain Association
National
Professional Societies:
2007-2012
American Medical Association
2007-
American Society of Anesthesiologists
2007-
Massachusetts Medical Association
2007-
Massachusetts Society of
Anesthesiologists
2011-2019
American Pain Society
2014-2016
International Spine Intervention Society
2014-
American Academy of Pain Medicine
2014-
American Society of Interventional Pain
Physicians
2016
American Society of Regional
Anesthesia
206a
4
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 24 of 52
2016-
North American Neuromodulation
Society
2018-
Boston Pain Society
2018-
Board of Directors
2023-2025
Co-Director of Fundraising and Industry
Relations
Eastern Pain Association
2021-
Editorial Activities:
Ad hoc Reviewer
Headache Journal
The Journal of Delivery Science and Innovation
Pain Practice
Spine Journal
Other Editorial Roles
2017
Editor in Chief
2020
Pain Medicine: An Essential Review, 1st
Ed. Springer International
Editor
Honors and Prizes:
1998
Texas Valedictorian
Scholarship, Texas
Interventional Management of Chronic
Visceral Pain Syndromes, 1st Ed.
Elsevier, 2020
University of Texas, Austin,
TX
2002
Baylor College of
Medicine Community
Service Scholarship
Baylor College of Medicine,
Houston, Texas
2005
Rice University’s
Jones Graduate
School of
Rice University, Jones
Graduate School of
Management,, Houston, TX
207a
5
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 25 of 52
Management
Academic Scholarship
2011
Distinguished
Resident of the Year
Anesthesia Department,
Brigham & Women’s
Hospital, Boston, MA
2011
Foundation for
Anesthesia Education
and Research (FAER)
Practice Management
Resident Scholar Program,
Pittsburgh, Pennsylvania
2011
Grant Finalist, Center
for Integration of
Medicine and
Innovative
Technology (CIMIT)
Research
CIMIT, Boston, MA
2011
National Collegiate
Inventors and
Innovators Alliance
Award for
participation in the
Ventures Lab
Venture Lab, Cambridge, MA
2011
Young Innovator
Award
Harvard School of
Engineering & Applied
Science, Boston, MA
2013
Distinguished
Intraoperative
Teaching and Clinical
Mentorship
Department of
Anesthesiology, Johns
Hopkins Hospital, Baltimore,
MD
2013
Outstanding Teacher
of the Year
Department of
Anesthesiology, Johns
Hopkins Hospital, Baltimore,
MD
2014, 2015,
2016, 2020,
2021
Pain Attending of the
Year Award
Department of
Anesthesiology, Brigham and
208a
6
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 26 of 52
Women’s Hospital, Boston,
MA
2014, 2018
Partners in Excellence
Award for Leadership
and Innovation
Brigham and Women’s
Hospital, Boston, MA
2018
Outstanding
Mentoring Award
Department of
Anesthesiology, Brigham and
Women’s Hospital, Boston,
MA
2018
Pain Attending of the
Year Award,
Department of
Anesthesiology, Brigham and
Women’s Hospital, Boston,
MA
2023
Pain Attending of the
Year Award
Anesthesia Department,
Brigham & Women's Hospital,
Boston, MA
Report of Funded and Unfunded Projects
Past
2015-2019
Prediction of
Persistent PostMastectomy Pain
Prediction of Persistent Post-Mastectomy Pain
NIH (NIGMS); K23 GM110540
Co-Investigator (PI: K. Schreiber)
This project investigates the ability of preoperatively assessed variables
including psychosocial evaluation and QST to predict risk of chronic pain
after surgery, and allow development of a study enrichment tool to
investigate existing and novel perioperative preventive therapies
2016-2018
ReActiv8-B trial
Mainstay Medical Limited
Co-Investigator (PI: Christopher Gilligan)
An international, multi-center, prospective randomized sham-controlled IDE
trial at up to 40 clinical trial sites and for 128 randomized subjects to be
implanted with an innovative implantable neurostimulation system
(Reactiv8). Device is intended to reduce the pain and disability of Chronic
Lower Back Pain (CLBP) by helping to restore control to the muscles that
dynamically stabilize the lumbar spine
209a
7
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 27 of 52
2018-2019
Algovita Post-Market Clinical Study: Spinal Cord Stimulation to Treat
Chronic Pain
Nuvectra Medical
PI
Multi-center, prospective post market study following patients implanted
with Nuvectra’s Algovita spinal cord stimulator ($1800 per patient with 10
estimated patients)
2018-2019
Pilot Study to Examine the Feasibility of the DISCSS (Dynamic
Interferential Spinal Cord Stimulation System)
Meagan Medical Inc
PI
Multi-center, prospective pilot study following patients using a spinal cord
stimulator trial with a novel dynamic interferential system and measuring
outcomes compared to traditional stimulation ($4490 per patient with 10
estimated patients).
2018-2019
Algovita Ultra High Pulse Width Clinical Study: Spinal Cord Stimulation to
Treat Chronic Pain
Nuvectra Medical
PI
Multi-center, prospective study following patients implanted with Nuvectra’s
Algovita spinal cord stimulator utilizing ultra high pulse width settings
($1800 per patient with 10 estimated patients).
2019-2020
Clonidine Micropellet Clinical Study for Radiculopathy
Sollis Therapeutics, Inc.
PI
Prospective, multi-center, randomized, double-blinded, sham-controlled
study to evaluate the efficacy and safety of clonidine micropellets for the
treatment of pain associated with lumbosacral radiculopathy in adults ($9,633
per patient with 20 estimated patients).
2019-2022
PROLONG Neuromodulation Study for Post Laminectomy Syndrome
Abbott
PI
prospective, multi-center, open-label, post-market study following patients
who have failed stimulation previously and are now using BurstDR
waveforms or Dorsal Root Ganglion stimulation with restored efficacy ($ per
patient with 10 estimated patients).
2021
RELIEF
Boston Scientific
210a
8
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 28 of 52
PI ($25,941)
The primary objective of this study is to compile characteristics of real-world
clinical outcomes for Boston Scientific commercially approved
neurostimulation systems for pain in routine clinical practice, when used
according to the applicable Directions for Use. The secondary objective of
this study is to evaluate the economic value and technical performance of
Boston Scientific commercially approved neurostimulation systems for pain
in routine clinical practice
Current
2020-
A Phase 3, Randomized, Double Blinded, Active Controlled, Multicenter
Study to Evaluate the Efficacy, Safety and Pharmacokinetics of EXPAREL
admixed with Bupivacaine vs Bupivacaine only administered as Combined
Sciatic (in popliteal fossa) and Adductor Canal Nerve Block for Postsurgical
Analgesia in Subjects Undergoing Lower Extremity Surgeries
Co-Investigator (PI: Srdjan Nedeljkovic)
This study will evaluate the efficacy of liposomal bupivacaine when given as
a Sciatic (in popliteal fossa) and Adductor Canal nerve block following foot
and ankle surgery compared to plain bupivacaine
2020-
SCOPE Superion Study for Neurogenic Claudication
Boston Scientific
PI ($40,159.00)
Multi-center, propective, observational, single-arm, post-approval study to
evaluate the Superion interspinous process spacer outcomes in patients with
lumbar spinal stenosis resulting in neurogenic claudication
2020-
SKOAP Sequenced strategy for improving outcomes in people with knee
osteoarthritis pain
Co-Investigator (PI: Christopher Gilligan)
There is an urgent public health need to reduce our reliance on opioids for
effective long-term pain management, particularly in knee osteoarthritis
(KOA). This effectiveness trial will compare recommended treatments to
reduce pain and functional limitations in KOA and identify clinical and
patient-level factors associated with treatment response. These results will
lead to improved patient selection for treatment and inform evidence-based
guidelines by offering well-tested, effective, non-opioid alternatives.
2020-
Dorsal spInal cord STImulatioN vs mediCal management for the Treatment
of low back pain (DISTINCT)
Abbott BioResearch
211a
9
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 29 of 52
Co-Investigator (PI: Christopher Gilligan)
The objective of this study is to evaluate the efficacy of BurstDRTM spinal
cord stimulation, compared with conventional medical management, in
improving pain and back pain-related physical function in patients suffering
with chronic, refractory axial low back pain, who have not had lumbar spine
surgery and for whom surgery is not an option.
2022-
From Nerve to Brain: Toward a Mechanistic Understanding of Spinal Cord
Stimulation in Human Subjects
NIH - HEAL; NCT05661903; RM1ActNS128741
Co-Investigator (PI: Brian Wainger)
This is a multicenter prospective study of patients who currently have stably
implanted spinal cord simulators. The fundamental hypothesis for this study
is that spinal cord stimulators modulate the excitability of primary afferent
neurons to reduce pain, and that these changes can be detected by
measurement of axonal excitability. This study will use robust, reproducible
techniques to define the peripheral, central, and systemic effects of spinal
cord stimulators.
2022-
A Phase 3, multi-center, randomized, double-blind, placebo-controlled study,
to evaluate the safety and efficacy of SB-01 for injection for the treatment of
lumbar degenerative disc disease
Spine BioPharma
PI ($35,180)
Confirm the safety and effectiveness of SB-01 For Injection in adult patients
with chronic low back pain and related disability due to Lumbar
Degenerative Disc Disease.
2022-
A Phase 3, Prospective, Multicenter, Randomized, Double-blind, Shamcontrolled Study on the Efficacy and Safety of STX-015 in the Treatment of
Pain Associated with Lumbosacral Radiculopathy
Sollis Therapeutics, Inc.
Co-Investigator (PI: Srdjan Nedeljkovic)
To compare the efficacy of STX-015 in treating pain at the location
associated with the worst lumbar and lumbosacral radiculopathy at Week 12
(3 months) after a single injection of STX-015 into the targeted lumbar or
lumbosacral epidural space, compared to that from a blinded, control group
of subjects who will undergo a sham injection designed to mimic the actual
epidural injection of STX-015.
2023-
Delivery for Pulmonary Arterial Hypertension (PAH)
Medronic Inc.
212a
10
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 30 of 52
Co-Investigator (PI: Aaron Waxman)
The purpose of this clinical trial is to evaluate the safety profile of the
Medronic Model 10642 and Model 8201 Implantable Intravascular Catheter,
a component of the PAH Implantable Vasodilator Therapy (PIVoT) system.
Unfunded Current Projects
2019-
IRB pending Case Series Evaluating the Compliance and Efficacy of Smart
Pill-bottles
PI
Single-center, prospective cohort evaluating patient compliance of Bluetooth
enabled smart pill dispensers for opioid medication and efficacy of reducing
opioid misuse and abuse
2020-
IRB pending Utilizing a Cadaver-Training Simulator to Teach Interventional
Spine Procedures
PI
Single-center, analyzing an innovative approach to educating fellows and
residents on interventional spine procedures measuring accuracy, comfort,
radiation exposure, and time
2022-
Prospective Analysis of Health State Utility After Chronic Migraines by
Patients Who Experienced This Diagnosis
PI
The primary aim of this study is to quantify the health utility states of people
who experienced chronic migraines. Assessing patients’ perception of
chronic migraine pain will allow us to compare directly with layperson
assessment of chronic migraine pain.
2023-
Prospective Analysis of Health State Utility After Chronic Lower Back Pain
by Patients Who Experienced This Diagnosis
PI
The primary aim of this study is to quantify the health utility states of people
who experienced chronic low back pain. Assessing patients’ perception of
chronic low back pain will allow us to improve the understanding of the
significance of the diagnosis and provide a quantitative significance to better
inform the medical community of the value that should be assigned to
efficacious treatments
Report of Local Teaching and Training
Teaching of Students in Courses:
213a
11
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 31 of 52
2011
BUS 2107 Commercializing Science
Class
Clinical advisor to graduate students
Harvard Business School, Cambridge,
MA
1 hour / year
2011
ES227 Medical Device Design Class
graduate students
Harvard Graduate School of
Engineering, Cambridge, MA
1 hour / year
2011
Introduction to Anesthesia: What does a
career in anesthesia look like?
medical students
Harvard Medical School
1 hour / week
Formal Teaching of Residents, Clinical Fellows and Research Fellows (post-docs):
2010
Interpretation of an Arterial Blood Gas
Critical Care residents, fellows and staff
SICU Lecture Series, BWH Dept.
Anesthesia, Perioperative and Pain
Medicine
1 hour / year
2010
Malignant Hyperthermia.
Residents/fellows
Sunrise Lecture Series, BWH Dept.
Anesthesia, Perioperative and Pain
Medicine
1 hour / year
2011
Hypertension in Pregnancy,
OB anesthesia residents
OB Lecture Series, BWH Dept.
Anesthesia, Perioperative and Pain
Medicine
1 hour / week
2011-2012
High Yield Board Topics
Anesthesia residents
Sunrise Lecture Series, BWH Dept.
Anesthesia, Perioperative and Pain
Medicine
1 hour / year 30 minute lecture annually
2012
Complex Regional Pain Syndrome
Anesthesia residents, fellows
Sunrise Lecture Series, BWH Dept.
Anesthesia, Perioperative and Pain
Medicine
1 hour / week
2012
Complications of Back Surgery
Anesthesia fellows
Fellow’s Curriculum Series, BWH
Dept. Anesthesia, Perioperative and
Pain Medicine
1 hour / week
214a
12
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 32 of 52
2012
Methadone
Anesthesia residents, fellows
Sunrise Lecture Series, BWH Dept.
Anesthesia, Perioperative and Pain
Medicine
1 hour / week
2012-2013
Acute Pain Management
medical students
College Day Lecture Series, Johns
Hopkins Hospital, Dept of Anesthesia
and Perioperative Medicine
1 hour / year
2012-2013
Cancer Pain
medical students
College Day Lecture Series, Johns
Hopkins Hospital, Dept of Anesthesia
and Perioperative Medicine
1 hour / year
2013
Minimally Invasive Lumbar
Decompression,
residents, fellows
Pain Management Lecture Series, BWH
Dept. Anesthesia, Perioperative and
Pain Medicine
1 hour / week
2013-
Advanced Pain Medicine
Department CA-2/3 Residents
BWH Dept. Anesthesia, Perioperative
and Pain Medicine
3 hours / year
2013-
Basics of Pain Medicine
Department CA-1 Residents
Residency Didactic Lecture Series,
BWH Dept. Anesthesia, Perioperative
and Pain Medicine
3 hours / year
2013-
Cancer Pain Medicine
Department CA-2/3 Residents (
Residency Didactic Lecture Series,
BWH Dept. Anesthesia, Perioperative
and Pain Medicine
3 hours / year
2015-
Interventional Pain Management Coding Faulkner Pain Management Center
and Billing,
Lecture Series, Brigham and Women’s
residents, fellows
Faulkner Hospital, Department of
Anesthesia
1 hour / year
Clinical Supervisory and Training Responsibilities:
215a
13
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 33 of 52
2012-2013
Supervision
Residents and CRNA's
Johns Hopkins Hospital, Department of
Anesthesiology
8 hours / week
2013-
Supervision
Residents, Fellows, Nurse Practitioners,
and Physician Assistants
BWH APPM, Division of Pain
Medicine
6 hours / week
2013-
Supervision
Residents and CRNA’s
BWH APPM, Department of
Anesthesiology
2 hours / week
Other Mentored Trainees and Faculty:
2012-2013
Liang Shen, MD / Instructor, Weill Cornell Medical College
Career stage: Resident.
Mentoring role: Clinical guidance and performance evaluation.
Accomplishments: multiple first authored scholarship; Fellowship in Critical
Care
2013-2014
Ehren Nelson, MD / Instructor, Brigham and Women’s Hospital
Career stage: Resident and Fellow.
Mentoring role: Clinical guidance, performance evaluation, and academic
mentoring.
Accomplishments: Multiple national and international invited lectures;
Fellowship in Pain Medicine
2014-2015
Isaac Tong, MD / Pain Medicine Attending, San Antonio
Career stage: Resident and fellow, Brigham and Women’s Hospital.
Mentoring role: Faculty mentor during Residency and Pain Fellowship with
guidance and performance evaluation
Established a strong reputation as a key opinion leader and expert in pain
medicine and practice development.
2014-2017
Jessica Hellums, MD / Pain Medicine Fellow, Brigham and Women’s
Hospital
Career stage: Resident.
Mentoring role: Faculty mentor during CA-1/2/3 year with guidance and
performance evaluation
Established a strong reputation as a key opinion leader and expert in pain
medicine and practice development.
216a
14
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 34 of 52
2015-2016
Jeffrey McLaren, MD / Pain Medicine Fellow, Virginia Mason
Career stage: Resident, Brigham and Women’s Hospital.
Mentoring Role: Faculty mentor during CA-3 year with guidance and
performance evaluation
Established a strong reputation as a key opinion leader and expert in pain
medicine.
2015-2016
Mona Patel, MD / Pain Medicine Attending, Irvine, California
Career stage: Fellow, Brigham and Women’s Hospital.
Mentoring role: Faculty mentor during Pain Fellowship with guidance and
performance evaluation
Established a strong reputation as a key opinion leader and expert in pain
medicine and academic publications.
2015-2018
Brandon Napstad, MD / Anesthesiology Resident, Brigham and Women’s
Hospital
Career stage: Resident.
Mentoring role: Faculty mentor during CA-1-3 year with guidance and
performance evaluation
Established a strong reputation as a clinical anesthesiologist.
2016-2017
Victor Wang, MD / Instructor, Brigham and Women’s Hospital
Career stage: Fellow.
Mentoring role: Faculty mentor during Pain Fellowship with guidance and
performance evaluation.
Accomplishments: Multiple first authored scholarship
2016-2019
Andrew Pisansky, MD / Anesthesiology Resident, Brigham and Women’s
Hospital
Career stage: Resident.
Mentoring role: Faculty mentor during CA-1-3 year with guidance and
performance evaluation
Completed a pain fellowship and is now director of acute pain at Vanderbilt
with significant academic productivity.
2016-2019
David Buric, MD / Anesthesiology Resident, Brigham and Women’s Hospital
Career stage: Resident.
Mentoring role: Faculty mentor during CA-1-3 year with guidance and
performance evaluation
Completed cardiac and ICU fellowships with significant academic
productivity.
217a
15
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 35 of 52
2017-2018
Fang Fang Xing, MD / Pain Management Fellow, Brigham and Women’s
Hospital
Career stage: Fellow.
Mentoring role: Faculty mentor during Pain Fellowship with guidance and
evaluation.
Accomplishments: multiple first authored scholarship
2017-2020
Shafiq Boyaji, MD / Anesthesiology Resident, Brigham and Women’s
Hospital
Career stage: Resident.
Mentoring role: Faculty mentor during CA-1-3 year with guidance and
performance evaluation
Established a strong reputation as a key opinion leader and expert in pain
medicine and practice development with academic productivity.
2018-2019
Michael Lubrano, MD / Pain Management Fellow, Brigham and Women’s
Hospital
Career Stage: Fellow.
Mentoring role: Faculty mentor during Pain Fellowship with guidance and
evaluation.
Accomplishments: multiple first authored scholarship
2019-2020
Bilal Dar, MD / Pain Management Fellow, Brigham and Women’s Hospital.
Career Stage: Fellow
Mentoring role: Faculty mentor during Pain Fellowship with guidance and
evaluation.
Accomplishments: case reports
2019-2022
Kunal Mandavawala, MD – Anesthesiology Resident, Brigham and Women’s
Hospital.
Career Stage: Resident.
Mentoring role: Faculty mentor during CA 1-3 year with guidance and
performance evaluation
Will be completing cardiac and ICU fellowships with significant academic
productivity.
2020-2023
Michael Fiore, MD, pharmD – Anesthesiology Resident, Brigham and
Women’s Hospital.
Career Stage: Resident.
Mentoring role: Faculty mentor during CA 1-3 year with guidance and
performance evaluation
218a
16
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 36 of 52
Will be applying for pain with significant research involving medical
education.
Formal Teaching of Peers (e.g., CME and other continuing education courses):
No presentations below were sponsored by 3rd parties/outside entities
2015
Chronic Venous Insufficiency, Comprehensive
Review of Pain Medicine, [Directed by Dr. Edgar
Ross. Recorded CME video lecture]
sponsored by Oakstone
single presentation
Boston
Local Invited Presentations:
No presentations below were sponsored by 3rd parties/outside entities
2014
Pain Treatment Modalities and Palliative Care for Cognitively Impaired
and Terminally Ill Patients / Invited Lecture
2nd Annual Pain Management Lecture, Brigham and Women’s
Hospital
2014
Spine Views for Interventional Pain Procedures / Invited Lecture
Massachusetts Society of Radiologic Technologists, Brigham and
Women’s Hospital
2016-
Pain Medicine Billing Primer / Invited Lecture
Pain Medicine Lecture Series, Brigham and Women's Hospital
2018
Post-operative Pain and the Chronic Pain Patient / Invited Lecture
PACU Lecture Series. Brigham and Women’s Faulkner Hospital
2022-2022
Peri-operative Pain Management & Chronic Opioid Therapy / Grand
Rounds
Brigham and Women's Faulkner Hospital, Department of
Anesthesiology
2023
Final Words of Wisdom / Invited Lecture
BWH Pain Fellow Lecture SEries
Report of Regional, National and International Invited Teaching and Presentations
Those presentations below sponsored by outside entities are so noted and the sponsor(s) is (are)
identified.
219a
17
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 37 of 52
Regional
2015
Advances in Chronic Pain Management / Grand Rounds
Tufts University, Anesthesiology, Boston, MA
2021
Opioid Management / Invited Speaker
New Hampshire Medical Society, Conway, NH
2023
Spine Interventions: MILD, Spacers, and Stimulation / Invited Lecture
Combined MGH, BWH, BI Ortho Spine Attending Lecture Series
National
2013
Perioperative Pain Management, Optimal Anesthesia Management / Invited
Lecture
Johns Hopkins Anesthesia Continuing Education, Baltimore, MD
2013
Pharmacology of Anesthetics / Invited Lecture
Johns Hopkins Regional Live Meeting Series, Boston
2013
Preoperative Patient Assessment / Invited Lecture
Johns Hopkins Regional Live Meeting Series, Boston
2015
Cutting Edge Chronic Pain / Grand Rounds
George Washington University, Anesthesiology, Washington, DC
2016
Innovation: Treatment and Prescribing Panelist and Moderator, Tennessee
Pain Opioids Problems Solutions Forum / Symposium
Nashville, TN
2017
Current Topics in Pain Medicine / Grand Rounds
Kaiser Permanente, Department of Anesthesiology, San Diego, CA
2017
Novel Therapies in Pain Medicine / Grand Rounds
Medical University of South Carolina, Department of Anesthesiology,
Charleston, SC
2018
On and Off Label Applications for Pain Control / Invited Lecture
NYC Neuromodulation Conference and NANS Summer Series, New York,
NY
220a
18
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 38 of 52
2019
Interpretation of Spinal Diagnostic Imaging Studies: Learning a Structured
Approach / Invited Speaker
American Society of Anesthesiology, Orlando, FL
2020
Lumbar Spinal Stenosis Novel Therapies / Invited Speaker
Multi-institution COVID-19 Lecture Series, Sponsored by University of
Washington
2020
Peripheral Nerve Stimulation / Invited Speaker
American Society of Neuro Radiologists, Las Vegas, NV
2020
Waveform Innovation in Spinal Cord Stimulation / Invited Speaker
Multi-institution COVID-19 Lecture Series, Sponsored by University of
Washington
2021
Pain Medicine: Practice Management and Billing Compliance
University of Miami
2022
Pain Management and Opioid Stewardship
OhioHealth
2022
Spinal Cord Stimulation: New Devices and Advances / Invited Lecture
Brown University, Medical School, Department of Anesthesiology
2022-2022
Keynote: CDC Opioid Prescribing Guidelines Update – Thoughts, Impacts &
Where do we go from here / Keynote Lecture
Eastern Pain Association Annual Meeting
2022-2022
Pathophysiology of Pain - A 2022 Update / Invited Lecture
Harvard Medical School, Evaluating & Treating Pain Conference
Lecture and Panel
2022-2022
Neuromodulation: From Bench to Bedside / Grand Rounds
Cedar Sinai, Department of Anesthesiology, Department Grand Rounds
2022-2022
The Digital Transformation of Medicine / Invited Lecture
New York City, New York
2023
Neuromodulation Advances / Invited Lecture
Brown University, Medical School, Department of Anesthesiology
2023
Invasive Pain Management Techniques / Invited Lecture
Medical & Life Care Consulting's 2023 INJURY INSIGHT webinar series
This four-part webinar series is designed to educate and inform adjusters,
221a
19
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 39 of 52
employers, risk managers, and industry stakeholders of the rehabilitation and
recovery process of injuries, illnesses, diagnoses, and treatments, both
common and uncommon, within workers' compensation claims.
International
2017
Difficult Airway Management / Anesthesiology Grand Rounds
Kanombe Military Hospital, Kigali, Rwanda
2017
Nerve Blocks for Facial Surgery / Anesthesiology Grand Rounds
Santa Casa Hospital, Sao Paulo, Brazil
2019
Perioperative Pain Management and Alternatives to Opioids / Invited Speaker
Korean American Spine Society Annual Meeting, Vancouver, CA
2019
State of the Art in Interventional Pain Procedures / Invited Speaker
Korean American Spine Society Annual Meeting, Vancouver, CA
2023
Prospective Survey of Health Utility State of Chronic Migraine Patients to Assess
Quality - Adjusted Life-Years / Platform Presentation
European Society of Regional Anesthesiology, Paris, France
Report of Clinical Activities and Innovations
Past and Current Licensure and Certification:
2005-
American Heart Association, Basic and Advanced Cardiac Life Support
2008-
Permanent Licensee, State of Massachusetts
2012-2014
Permanent Licensee, State of Maryland
2012-
Diplomate, American Board of Anesthesiology
2012-
Diplomate, American Board of Anesthesiology Pain Medicine
Practice Activities:
2012-2013
General and regional
anesthesia
Johns Hopkins Hospital,
Baltimore, MD
40 hours / week
2013
Pain Medicine
Physician
Brigham and Women’s
Hospital, Boston, MA
30 hours / week
222a
20
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 40 of 52
2013-
General and regional
anesthesia
Clinical Innovations:
Cofounder of
multidisciplinary
spine center / BWF
(2014)
Brigham and Women’s
Hospital, Boston, MA
10 hours / week
As founding medical director of Brigham and Women’s Faulkner Hospital’s
Pain Management Center, a high priority was increased collaboration with
the other services in the hospital. After our initial collaboration with the
Graham Headache Center proved to be successful, we decided to build a
spine center with operative and non-operative services focused on
comprehensive spine care. We used a wing of the newly built Orthopedic
center at Faulkner to carve out 6 exam rooms and a multi-use work area to
build a center where Orthopedics or Neurosurgery was collocated with
Physiatry or Pain Medicine. Serving on the governance committee since the
inception, I have actively been involved with the creation of workflows,
marketing, and management of the spine center. The multi-disciplinary
collaboration with physical therapy, pain psychology, rheumatology,
neurology, and spine surgery has allowed a focus on developing non-opioid
strategies to managing patients suffering with pain.
Implemented
changes for practice
efficiency / BWH
Pain Ctr
(2017)
Because of the significant clinical and financial growth of the Brigham and
Women’s Faulkner Hospitals Pain Management Center, I was selected to be
the Medical Director of Brigham and Women’s main Pain Management
Center. In this position, I created several processes and work flow changes
to improve efficiency. First, I changed the schedule to split out procedures
and evaluations into separate sessions. Doing this provided each attending
physician dedicated geography and resources to see more patients in less
time while reducing wasted footsteps. Next, I worked with Epic to create
several shortcuts and orders so providers could quickly enter an order for a
procedure which would then automatically enter the work queue for
managed care services to obtain prior authorization. The new orders have
helped to minimize denials while ensuring the proper time and location are
allocated for the desired procedure. I also helped create the new order
system providers use to refer patients to our multiple locations of Pain
Medicine.
Creator of new
reporting for Pain
Management Center
/ BWH pain Ctr
(2017)
Also in my role as Medical Director of Brigham and Women’s Pain
Management Center, I created two new reports the administration and staff
use monthly. The first report is a gaps analysis to determine sessions where
we have inadequate provider coverage. The second report is a productivity
report that marries our billing database with the scheduling system to
provide the physicians aggregate productivity data that can then be drilled
down into individual days. The report is now used by attending physicians
223a
21
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 41 of 52
to track their productivity and by the finance division to cross verify their
reporting measures.
Introduction of
Radiofrequency
Identification to
measure time driven
activity based
costing /
(2018)
In collaboration with MIT and Harvard Business School I am coordinating
the implementation of radiofrequency identification (RFID) tags and readers
to more accurately and robustly calculate costs of a given activity using time
driven activity based costing (TDABC). The current models utilizing
TDABC in healthcare rely on manual recordings of each step in an activity.
Utilizing RFID would minimize the measurement bias and allow for a larger
sample size.
Report of Teaching and Education Innovations
Co-founder for the
I co-created a lecture series for the Pain Medicine fellows. In the lecture
Faulkner Lecture
series, we invite lecturers from other specialties including orthopedics,
Series
radiology, psychiatry, and law to discuss practical concepts in Pain
(2014)
Management to prepare them for their early careers. The feedback from the
fellows is superb and an integral part of their education.
Creator and manager
of Faulkner Hospital
Pain rotation
(2016)
Since founding the Brigham and Women’s Faulkner Hospital’s Pain
Management Center in 2013, we have been asked to host rotation for interns,
residents, and fellows. Each year we have a growing number of residents
requesting the rotation for the CA-3’s pain medicine elective – even for
residents not specializing in Pain Medicine. Additionally, we now host
Neurology Headache fellows, Regional Anesthesia fellows, and categorical
anesthesia interns. I coordinate and evaluate all rotating trainees through the
Pain Center.
Introduction of pain
simulation
(2018-)
Simulation in anesthesiology is now a standard for resident education,
however, within Pain Medicine simulation has not gained traction. I worked
with a company called Biotras to bring a spine simulator with cadaveric
bone and ballistic gel to the Pain Management Center at Brigham and
Women’s Hospital. We organized two sessions for the 2018-2019 fellow
class to practice obtaining the correct views and directing the needle for four
of our most common procedures. The feedback was so overwhelmingly
positive from the fellows that we curated an entire curriculum based on
simulation. We have published on our findings demonstrating improvements
in fellow comfort, accuracy, radiation exposure, and time for each
procedure. Every year we have incrementally added new ad-hoc session in
the second half of each fellowship year.
224a
22
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 42 of 52
Report of Education of Patients and Service to the Community
No presentations below were sponsored by 3rd parties/outside entities
Activities
1999
Medical Mission
Medical mission to Guatemala with Sending Out Servants
2000-2002
Big Brothers Big Sisters
Over 500 hours spent as a mentor in Austin, TX
2000-2002
Habitat for Humanity
Habitat for Humanity via Texas Blazers
2010
Global Smile Foundation
Medical Mission to Cote D’Ivoire, Global Smile Foundation (Anesthesiologist)
2011
Global Smile Foundation
Medical Mission, Ecuador with the Global Smile Foundation (Anesthesiologist)
2012, 2015
Global Smile Foundation
Medical Mission, Guatemala with the Global Smile Foundation
(Anesthesiologist)
2017
Face the Future Foundation
Medical Mission, Rwanda with Face the Future (Anesthesiologist)
2017
Global Smile Foundation
Medical Mission, Brazil with Global Smile Foundation (Anesthesiologist)
2018, 2019
Face the Future Foundation
Medical Mission, Rwanda with Face the Future Foundation (Anesthesiologist)
Educational Material for Patients and the Lay Community:
Patient educational material
2015
Managing with Low
Back
BWF, Community Lecture
Series
2016
Novel Techniques for
Treating Low Back
Pain
BWF, Community Lecture
Series
225a
23
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 43 of 52
Recognition:
2010
Featured in Brigham and Women’s
Hospital Bulletin
12/13/2010 article: Driving Clinical
Innovations at BWH
2011
Featured in the Harvard Gazette
(September 20, 2011)
Surgical Precision at SEAS
9/20/2011 article: Innovation and Medical
Device Design
2016
Featured in Tennessean (April 5,
2016)
4/5/2016 article: Health care leaders urge
action on opioid abuse
2016
Highlighted in educational marketing
video for Brigham and Women’s
Hospital
5/6/2016 video: Managing Back Pain
2016
Highlighted in marketing video for
Faulkner Hospital Pain Management
Center
5/12/2016 video: Pain Management
Center at BWFH
Report of Scholarship
ORCID: 0000-0001-6960-9621
Peer-Reviewed Scholarship in print or other media:
Research Investigations
1.
Brattain LJ, Floryan C, Hauser OP, Nguyen M, Yong RJ, Kesner SB, Corn SB, Walsh
CJ. Simple and effective ultrasound needle guidance system. Annu Int Conf IEEE Eng
Med Biol Soc. 2011;2011:8090-8093. PMID: 22256219,
https://doi.org/10.1109/IEMBS.2011.6091995
2.
Yong RJ, Nelson ER, Urman RD, Kaye AD. A primer for billing in interventional pain
management. J Med Pract Manage. 2015;30(6 Spec No):51-54. PMID: 26062319
3.
Imran TF, Malapero R, Qavi AH, Hasan Z, de la Torre B, Patel YR, Yong RJ, Djousse
L, Gaziano JM, Gerhard-Herman MD. Efficacy of spinal cord stimulation as an adjunct
therapy for chronic refractory angina pectoris. Int J Cardiol. 2017 Jan 15;227:535-542.
PMID: 27836302, https://doi.org/10.1016/j.ijcard.2016.10.105
4.
Kim AJ, Yong RJ, Urman RD. The Role of Transversus Abdominis Plane Blocks in
Enhanced Recovery After Surgery Pathways for Open and Laparoscopic Colorectal
Surgery. J Laparoendosc Adv Surg Tech A. 2017 Sep;27(9):909-914. PMID: 28742435,
https://doi.org/10.1089/lap.2017.0337
226a
24
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 44 of 52
5.
Pak DJ, Yong RJ, Kaye AD, Urman RD. Chronification of Pain: Mechanisms, Current
Understanding, and Clinical Implications. Curr Pain Headache Rep. 2018 Feb 5;22(2):9.
PMID: 29404791, https://doi.org/10.1007/s11916-018-0666-8
6.
Xing F, Yong RJ, Kaye AD, Urman RD. Intrathecal Drug Delivery and Spinal Cord
Stimulation for the Treatment of Cancer Pain. Curr Pain Headache Rep. 2018 Feb
5;22(2):11. PMID: 29404792, https://doi.org/10.1007/s11916-018-0662-z
7.
Aman, M.M., Jason Yong, R., Kaye, A.D.et al.Evidence-Based Non-Pharmacological
Therapies for Fibromyalgia.Curr Pain Headache Rep22, 33 (2018).
https://doi.org/10.1007/s11916-018-0688-2
8.
Simopoulos T, Yong RJ, Gill JS. Treatment of Chronic Refractory Neuropathic Pelvic
Pain with High-Frequency 10-kilohertz Spinal Cord Stimulation. Pain Pract. 2018
Jul;18(6):805-809. PMID: 29106051, https://doi.org/10.1111/papr.12656
9.
Wang VC, Preston MA, Kibel AS, Xu X, Gosnell J, Yong RJ, Urman RD. A
Prospective, Randomized, Double-Blind, Placebo-Controlled Trial to Evaluate
Intravenous Acetaminophen Versus Placebo in Patients Undergoing Robotic-Assisted
Laparoscopic Prostatectomy. J Pain Palliat Care Pharmacother. 2018;32(2-3):82-89.
PMID: 30645153, https://doi.org/10.1080/15360288.2018.1513436
10.
Novak CJ, Khimani N, Kaye AD, Jason Yong R, Urman RD. Current Therapeutic
Interventions in Lower Extremity Venous Insufficiency: a Comprehensive Review. Curr
Pain Headache Rep. 2019 Mar 4;23(3):16. doi: 10.1007/s11916-019-0759-z. PMID:
30830460
11.
Valimahomed AK, Haffey PR, Urman RD, Kaye AD, Yong RJ. Regenerative
Techniques for Neuraxial Back Pain: a Systematic Review. Curr Pain Headache Rep.
2019 Mar 11;23(3):20. PMID: 30854599, https://doi.org/10.1007/s11916-019-0758-0
12.
Morales A, Yong RJ, Kaye AD, Urman RD. Spinal Cord Stimulation: Comparing
Traditional Low-frequency Tonic Waveforms to Novel High Frequency and Burst
Stimulation for the Treatment of Chronic Low Back Pain. Curr Pain Headache Rep.
2019 Mar 14;23(4):25. PMID: 30868285, https://doi.org/10.1007/s11916-019-0763-3
13.
Atkinson TJ, Pisansky AJB, Miller KL, Yong RJ. Common elements in opioid use
disorder guidelines for buprenorphine prescribing. Am J Manag Care. 2019 Mar
1;25(3):e88-e97. PMID: 30875177
14.
Boyaji S, Merkow J, Elman RNM, Kaye AD, Yong RJ, Urman RD. The Role of
Cannabidiol (CBD) in Chronic Pain Management: An Assessment of Current Evidence.
227a
25
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 45 of 52
Curr Pain Headache Rep. 2020 Jan 24;24(2):4. PMID: 31980957,
https://doi.org/10.1007/s11916-020-0835-4
15.
Coppes OJM, Yong RJ, Kaye AD, Urman RD. Patient and Surgery-Related Predictors
of Acute Postoperative Pain. Curr Pain Headache Rep. 2020 Feb 18;24(4):12. PMID:
32072315, https://doi.org/10.1007/s11916-020-0844-3
16.
Costelloe C, Burns S, Yong RJ, Kaye AD, Urman RD. An Analysis of Predictors of
Persistent Postoperative Pain in Spine Surgery. Curr Pain Headache Rep. 2020 Feb
18;24(4):11. PMID: 32072357, https://doi.org/10.1007/s11916-020-0842-5
17.
Merkow J, Varhabhatla N, Manchikanti L, Kaye AD, Urman RD, Yong RJ. Minimally
Invasive Lumbar Decompression and Interspinous Process Device for the Management
of Symptomatic Lumbar Spinal Stenosis: a Literature Review. Curr Pain Headache Rep.
2020 Feb 18;24(4):13. PMID: 32072362, https://doi.org/10.1007/s11916-020-0845-2
18.
Blevins Peratikos M, Weeks HL, Pisansky AJB, Yong RJ, Stringer EA. Effect of
Preoperative Opioid Use on Adverse Outcomes, Medical Spending, and Persistent
Opioid Use Following Elective Total Joint Arthroplasty in the United States: A Large
Retrospective Cohort Study of Administrative Claims Data. Pain Med. 2020 Mar
1;21(3):521-531. PMID: 31120529, PMCID: PMC7060398,
https://doi.org/10.1093/pm/pnz083
19.
Li L, Yong RJ, Kaye AD, Urman RD. Perioperative Point of Care Ultrasound (POCUS)
for Anesthesiologists: an Overview. Curr Pain Headache Rep. 2020 Mar 21;24(5):20.
PMID: 32200432, https://doi.org/10.1007/s11916-020-0847-0
20.
Morales ME, Yong RJ. Racial and Ethnic Disparities in the Treatment of Chronic Pain.
Pain Med. 2021 Feb 4;22(1):75-90. PMID: 33367911,
https://doi.org/10.1093/pm/pnaa427
Cited 63 time as of 5/2023
21.
Henson JV, Varhabhatla NC, Bebic Z, Kaye AD, Yong RJ, Urman RD, Merkow JS.
Spinal Cord Stimulation for Painful Diabetic Peripheral Neuropathy: A Systematic
Review. Pain Ther. 2021 Dec;10(2):895-908. PMID: 34244979, PMCID: PMC8586096,
https://doi.org/10.1007/s40122-021-00282-9
22.
Yong RJ, Mullins PM, Bhattacharyya N. Prevalence of chronic pain among adults in the
United States. Pain. 2022 Feb 1;163(2):e328-e332. PMID: 33990113,
https://doi.org/10.1097/j.pain.0000000000002291
Cited 162 times as of 5/2023
228a
26
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 46 of 52
23.
Mullins, Peter M.; Yong, Robert J.; Bhattacharyya, Neil.Impact of demographic factors
on chronic pain among adults in the United States. PAIN Reports 7(4):p e1009,
July/August 2022. | DOI: 10.1097/PR9.0000000000001009
24.
Sarno D, Yong RJ, Fields KG, Lim SM, Gilligan CJ, Khan L, Nelson, E. "A Novel
Interventional Pain Simulation-Based Education Curriculum: Implementation to
Enhance Procedural Training" Interventional Pain Medicine Volume 1, Issue 4, Dec
2022
25.
Mullins PM, Yong RJ, Bhattacharyya N. Associations between chronic pain, anxiety,
and depression among adults in the United States. Pain Pract. 2023 Mar 7. doi:
10.1111/papr.13220. PMID: 36881021.
26.
Gilligan C, Burnside D, Grant L, Yong RJ, Mullins PM, Schwab F, Mekhail N.
ReActiv8 Stimulation Therapy vs. Optimal Medical Management: A Randomized
Controlled Trial for the Treatment of Intractable Mechanical Chronic Low Back Pain
(RESTORE Trial Protocol). Pain Ther. 2023 Apr;12(2):607-620. PMID: 36787013,
PMCID: PMC10036695, https://doi.org/10.1007/s40122-023-00475-4
27.
"Fluoroscopic MBBs and RFA for Facet-Mediated Low Back Pain" New England
Journal of Medicine In Press.
Other peer-reviewed scholarship
1.
Rohan Jotwani, Michael Fiore, Robert Jason Yong, David Hao;
Virtual reality for procedural education: Lumbar medial branch radiofrequency
neurotomy,
Interventional Pain Medicine,
Volume 1, Issue 1,
2022,
100088,
ISSN 2772-5944,
https://doi.org/10.1016/j.inpm.2022.100088.
(https://www.sciencedirect.com/science/article/pii/S2772594422000796)
Non-peer reviewed scholarship in print or other media:
Reviews, chapters, and editorials
1. Yong RJ, Nedeljkovic S. Assessment of pain: Patient evaluation. In: Pocket Pain
Medicine, Urman RD, Vadivelu N (eds), Philadelphia: Lippincott
229a
27
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 47 of 52
2.
Tong I,Yong RJ. Pain Emergencies: Averting catastrophe through diagnosis and
treatment. In: Fundamentals of Pain Care. Oxford University Press, 2015
3.
Smith J, Yong RJ, Nedeljkovic S. “Minimally Invasive Treatments for Spinal Stenosis:
Percutaneous Lumbar Decompression.” Surgical Pain Management. Oxford University
Press, 2016
4.
Yazdi C, Yong RJ, Nguyen, M. “Endovenous Ablation.” Surgical Pain Management.
Oxford University Press, 2016
5.
Lockhart B, Yong RJ. Pharmacology of Pain Transmission and Modulation. In: Pain
Medicine: An Essential Review, RJ Yong, Nguyen M, Nelson E, Urman RD (eds), 1st
Ed. Switzerland: Springer International Publishing, 2017; p.147-148.
6.
Patel M, Yong RJ. Corticosteroids. In: Pain Medicine: An Essential Review, RJ Yong,
Nguyen M, Nelson E, Urman RD (eds), 1st Ed. Switzerland: Springer International
Publishing, 2017; p.181-184
7.
Tong I, Yong RJ. “Sacroiliac Joint Pain.L5 Dorsal Ramus and S1-S3 Lateral Branch
Radiofrequency Ablation. In: Pain Medicine: An Essential Review, RJ Yong, Nguyen
M, Nelson E, Urman RD (eds), 1st Ed. Switzerland: Springer International Publishing,
2017; p.245-248
8.
Tong YCI, Yong RJ. Cervical Facet Injections/Medial Branch Block. In: Pain
Medicine: An Essential Review, RJ Yong, Nguyen M, Nelson E, Urman RD (eds), 1st
Ed. Switzerland: Springer International Publishing, 2017; p.227-230
9.
Tong YCI, Yong RJ. Lumbar Medial Branch Radiofrequency Lesioning. In: Pain
Medicine: An Essential Review, RJ Yong, Nguyen M, Nelson E, Urman RD (eds), 1st
Ed. Switzerland: Springer International Publishing, 2017; p.237-240
10.
Tong YCI, Yong RJ. Lumbar Transforaminal Epidural Steroid Injection. In: Pain
Medicine: An Essential Review, RJ Yong, Nguyen M, Nelson E, Urman RD (eds), 1st
Ed. Switzerland: Springer International Publishing, 2017; p.223-226
11.
Tong YCI, Yong RJ. Sacroiliac Joint Injection. In: Pain Medicine: An Essential Review,
RJ Yong, Nguyen M, Nelson E, Urman RD (eds), 1st Ed. Switzerland: Springer
International Publishing, 2017; p.241-244
12.
Yong RJ, Nelson E. “Interlaminar Epidural Steroid Injection: Cervical and Lumbar. In:
Pain Medicine: An Essential Review, RJ Yong, Nguyen M, Nelson E, Urman RD (eds),
1st Ed. Switzerland: Springer International Publishing, 2017; p.219-222
230a
28
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 48 of 52
13.
Yong RJ. Issa M. Thoracic facet pain/medial branch blocks.. In: Pain Medicine: An
Essential Review, RJ Yong, Nguyen M, Nelson E, Urman RD (eds), 1st Ed. Switzerland:
Springer International Publishing, 2017; p.231-232
14.
Yong RJ. Issa M. Tricyclic antidepressants. In: Pain Medicine: An Essential Review, RJ
Yong, Nguyen M, Nelson E, Urman RD (eds), 1st Ed. Switzerland: Springer
International Publishing, 2017; p.165-166
15.
Saba R, Yong RJ, Gilligan C, Rathmell J. Emergencies in the Pain Clinic. In: Bonica’s
Management of Pain, Ballantyne JC, Fishman SM, Rathmell JP (eds), 5th Ed.
Philadelphia: Lippincott, Williams & Wilkins, 2018
16.
Tong YC, Yong RJ, Hogans BB, Booker SQ, Herr KA. Pain in Older Patients. Pain
Care Essentials. Oxford University Press. 11/01/2019; DOI:
10.1093/med/9780199768912.003.0020
17.
Lubrano M, Costelloe C, Yong RJ. Local Anesthetics and Scalp Blocks. In: Hair
Transplant Surgery and Platelet Rich Plasma: Evidence-based Essentials, Lee LN (ed),
1st Ed. Switzerland: Springer International Publishing, 2020, chap 8
18.
Tong I, Yong RJ, Hogans BB. Pain Emergencies and Life-threatening Complications of
Pain Treatments. In: Pain Care Essentials, 1st Ed. Oxford University Press, 2020, chap
13
19.
Lubrano, M.C., Costelloe, C.C., Yong, R.J. (2020). Local Anesthesia and Scalp Blocks.
In: Lee, L.N. (eds) Hair Transplant Surgery and Platelet Rich Plasma. Springer, Cham.
https://doi.org/10.1007/978-3-030-54648-9_8
20.
Boyaji, S., Gilligan, C.J., Hirsch, J.A., Yong, R.J. (2020). Evidentiary Basis of
Percutaneous Discectomy. In: Manfrè, L., Van Goethem, J. (eds) The Disc and
Degenerative Disc Disease. New Procedures in Spinal Interventional Neuroradiology.
Springer, Cham. https://doi.org/10.1007/978-3-030-03715-4_8
21.
Brook, A.L., Boyaji, S., Gilligan, C.J., Hirsch, J.A., Yong, R.J. (2020). Epidural Steroid
Injections: Are They Still Useful?. In: Manfrè, L., Van Goethem, J. (eds) The Disc and
Degenerative Disc Disease. New Procedures in Spinal Interventional Neuroradiology.
Springer, Cham. https://doi.org/10.1007/978-3-030-03715-4_7
22.
He C, Yong RJ. Chronic Postsurgical Pain. Interventional Management of Chronic
Visceral Pain Syndromes, Pak DJ, Yong RJ, Shah KB (eds), Elsevier, 2021.
23.
Mehta AD, Yong RJ. Chronic Pancreatitis. Interventional Management of Chronic
Visceral Pain Syndromes, Pak DJ, Yong RJ, Shah KB (eds), Elsevier, 2021.
231a
29
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 49 of 52
24.
Zerriny S, Yong RJ. Chronic Mesenteric Ischemia. Interventional Management of
Chronic Visceral Pain Syndromes, Pak DJ, Yong RJ, Shah KB (eds), Elsevier, 2021.
Books/textbooks for the medical or scientific community
1. RJ Yong, Nguyen M, Nelson E, Urman RD. Pain Medicine: An Essential Review, 1st
Ed. Switzerland: Springer International Publishing, 2017
2.
Pak D, Yong J, Shah K. Interventional management of chronic visceral pain syndromes.
1st edition, Missouri: Elsevier, 2021
Professional educational materials or reports, in print or other media:
1.
Yong R. Brigham and Women’s Anesthesia Residency Wiki. BWHAnesthesia.org,
2011
2.
Yong R. Brigham and Women’s Pain Fellow’s Wiki. BWHAnesthesia.org, 2011
3.
Yong, RJ www.TheAnswerPage.Com, A web-based daily educational resource for
medical professionals. A web-based daily educational resource for medical
professionals. Eleventh Annual Medical Education Day, Harvard Medical School,
Boston, MA, 2012
4.
Yong, RJ. TheAnswerPage.com. Pain, Palliative Care, Opioid Prescribing and Risk
Management: The Answer Page, Inc; 2012
5.
Yong RJ. Cancer Pain: in Pain, Palliative Care, Opioid Prescribing & Risk
Management: The Answer Page, Inc. 2015.
6.
Yong RJ. Cannabidiol Therapy in Cancer Pain and Management: Florida Physicians
Low -THC Cannabis Course: Florida Medical Association, Inc 2015
Abstracts, Poster Presentations, and Exhibits Presented at Professional Meetings:
1.
Yong RJ, Sarno D, Velez M. Resolution of Chronic Debilitating Headaches and Lumbar
Radicular Pain Following Spinal Cord Stimulation and Interspinous Process
Decompression: A Case Report. North American Neuromodulation Society, 2020.
2.
Fiore M, Galanti G, Park B, Lim S, Yong RJ, Gilligan C, Nelson E. Virtual Reality
Augmentation to a Pain Medicine Simulation Curriculum. American Academy of Pain
Medicine, 2021.
232a
30
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 50 of 52
3.
Mukherjee V, Yong RJ, Janardhanan D, Nelson ER, Zhao E, Gilligan CJ. Interventional
Management of Thoracic Pain Secondary to Malignant Pleural Effusion: A Case Report.
American Academy of Physical Medicine and Rehabilitation 2021 Annual Assembly –
Pain and Spine Medicine. Annual Meeting; Nashville, TN
4.
Vu K, Pappy A, Berlin E, Yang A, Sarno D, Nelson E, Yong RJ. Comprehensive
Simulation Sessions for Interventional Spine Procedure: Preliminary Prospective
Results. Spine Intervention Society Annual Meeting, 2022. Poster Session
5.
Burns S, Majdak P, Yong RJ, Barreveld A. Dorsal Root Ganglion Stimulation For
Patients with Chronic Pelvic Pain: A Retrospective Case Series. American Academy of
Pain Medicine Annual Meeting, 2023.
6.
Mullins P, Regenhardt S, Yong RJ. Acute Unscheduled Care Use Among Adults with
Chronic Pain: Results from the National Health Interview Survey. American Academy
of Pain Medicine Annual Meeting, 2023.
7.
Eckley MJ, Vu K, Yih ET, Yong RJ, Nelson ER, Pappy AL, Scott B, Hunter T, Gureck
A, Reilly AC, Burns SL, Sarno DL. (poster) Simulation-based education: a novel
grading rubric to assess performance of interventional pain procedures. AAPM Annual
Meeting, Fort Lauderdale, FL, March 2023.
8.
Mallett B, Ogletree S, Yong RJ. A Stim Without a Rose: Neurologic Recovery postSCS Explant. ASIPP Annual Conference, 2023. Poster Session.
9.
Gureck A, Vu K, Eckley MJ, Hunter T, Yih ET, Yong RJ, Nelson ER, Pappy AL, Scott
B, Reilly AC, Burns SL, Lee KW, Sarno DL. Simulation-based education to improve
procedural skills in spinal cord stimulation and dorsal root ganglion stimulation. Poster
presentation at the 2023 American Society of Regional Anesthesia and Pain
MedicineMeeting in New Orleans, LA.
* Co-author, ** Mentee
Narrative Report
As an academic anesthesiologist specializing in pain medicine at Brigham and Women’s Hospital, my
efforts are focused on developing clinical expertise, innovating pain medicine through novel implantable
devices and opioid management strategies, and educating fellows and residents. My major supporting
activity involves administrative and institutional service with leadership roles and committee service.
Approximately half of my time is devoted to direct patient care within pain medicine including time
spent evaluating patients in clinic, performing office-based procedures, and surgically implanting
devices to help manage pain. I spend twenty percent of my time as an anesthesiologist supervising
233a
31
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 51 of 52
residents and nurse anesthetists with a focus on regional anesthesia and acute post-operative pain
management. The remainder of my time is divided among administrative duties including institutional
committee service and serving as the Associate Chief of Pain Medicine and Medical Director of the Pain
Management Center.
Clinically, I have developed expertise in surgically implantable technologies for the treatment of chronic
pain and opioid management strategies. Since fellowship, I have been fascinated by neuromodulation
using spinal cord and peripheral stimulators to modulate pain signals. Using this passion, I have taught
fellows and residents extensively on the technology, and introduced the Nevro high frequency stimulator
to Brigham and Women’s Hospital becoming the first implanting physician in New England. Since then
I have continued as the major pioneering physician for other minimally invasive procedures in New
England, such as Vertiflex Superion spacer implantation, Relievant Intracept, Saluda neuromodulation,
Mainstay Reactiv8, Vertos MILD. I have tried to maintain an academic focus with new technology, and I
am currently the Principal Investigator in several prospective case-series examining the efficacy of novel
neuromodulation technologies. With my focus on neuromodulation, I have been fortunate enough to
become the top implanter of spinal cord stimulators in the Northeast.
I am continuing to develop my career in research and have several active funded clinical studies
involving neuromodulation and novel therapeutics. The unfunded project involve evaluating the health
utility of different pain states, medical education utilization a novel pain simulator, and analyzing
epidemiology of pain. In response to my personal struggles and those of fellows starting their careers, I
conceptualized and was first editor for Pain Medicine: An Essential Review which focuses on relevant
clinical pearls. I have published on several different topics within pain medicine and have a current Hindex of 16 with a first authored paper titled Prevalence of chronic pain among adults in the United
States cited over 300 times since publication in 2022. On a national level, I have been invited to give 5
grand rounds and was invited to serve on the American Board of Anesthesiology MOCA Minute for Pain
Medicine question writing committee. Internationally, I participate in 1-2 medical missions per year
providing anesthesia and have been invited to give multiple international presentations.
As the founding medical director of the Pain Management Center at Brigham and Women’s Faulkner
Hospital, I helped grow the pain medicine services at the hospital focusing on the integration of high
quality pain management to all areas of the hospital. Our volume tripled to over 400 pain patients per
month in the span of 3 years. Due in part to that success, in 2017, I was selected as the Medical Director
of the Pain Management Center at Brigham and Women’s Hospital. In this role, I am focused on
operational efficiency and financial viability. With the early changes I helped manage and develop, our
productivity has increased with an improvement in patient satisfaction. The rapid turnaround then led to
the appointment as Associate Chief of the Division of Pain Medicine. I was also elected to serve on the
Faculty Board in the Department of Anesthesiology. I serve as an active member on the Faculty
Recruitment Committee and the Anesthesiology Social Committee.
In my current role and as the previous Associate Program Director for the Pain Management Center at
Brigham and Women’s Hospital, I am involved with recruitment, curriculum development, and overall
management of the 10 fellows per year. My involvement in this role extends to committee service on a
hospital and national level with the American Board of Anesthesiology. As a product of our own
234a
32
Case 2:23-cv-00656-RAH Document 19-1 Filed 11/20/23 Page 52 of 52
residency and fellowship, I am appreciative of the extensive curriculum and mentorship by the world
renown experts at our institution. I have strived to reciprocate using innovative teaching methods such as
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.