Warner v. Gross
2015 U.S. App. LEXIS 551
| 10th Cir. | 2015Background
- Four Oklahoma death-row inmates (Warner, Glossip, Grant, Cole) sued under 42 U.S.C. § 1983 challenging Oklahoma’s revised lethal-injection protocol that uses 500 mg midazolam as the first drug; they sought a preliminary injunction to halt scheduled executions.
- Oklahoma replaced unavailable barbiturates with midazolam after the problematic April 2014 execution of Clayton Lockett, which involved IV failures and apparent consciousness during the procedure; Oklahoma then adopted a revised protocol with detailed IV procedures and four drug alternatives, selecting a midazolam/vecuronium/potassium chloride option for these executions.
- Plaintiffs’ Count 2 alleged the inherent properties of midazolam (ceiling effect, risk of paradoxical reactions) and risk of negligent administration create a substantial risk of severe pain in violation of the Eighth Amendment; they asserted sodium thiopental was a feasible, less-risky alternative.
- Count 7 alleged the revised protocol amounted to unconstitutional human experimentation because it used untried drugs/procedures with no sound expectation of avoiding severe pain.
- After a three-day evidentiary hearing the district court denied the preliminary injunction, finding plaintiffs failed to show a likelihood of success on Counts 2 and 7; the Tenth Circuit affirmed, reviewing legal issues de novo and factual findings for clear error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eighth Amendment challenge to midazolam (Count 2) | Midazolam’s ceiling effect and paradoxical reactions, plus risk of negligent administration, create a substantial risk of severe pain; sodium thiopental is a feasible alternative | 500 mg midazolam is many times a therapeutic dose, will render unconscious/insensate if properly administered; revised protocol protections minimize negligent-administration risk; thiopental/pentobarbital unavailable | Plaintiffs failed to show likelihood of success; district court’s factual findings (on midazolam effects and protocol safeguards) not clearly erroneous; injunction denied |
| Human-experimentation claim (Count 7) | Use of new drug/procedures on captive subjects with uncertain outcomes constitutes unconstitutional experimentation | Midazolam use in multi-drug protocols had been done before; revised protocol not experimental and does not create demonstrated substantial risk of severe pain | Count 7 fails; plaintiffs did not show demonstrated substantial risk or that the protocol is experimental in the constitutional sense |
| Applicability of Baze and requirement to identify an alternative | Baze’s ‘‘known and available alternative’’ requirement should not apply to challenges to a drug’s inherent properties | Baze applies; plaintiffs must show a demonstrated risk of severe pain and compare it to known/available alternatives; Pavatt controls | Baze’s framework applies to these challenges; even assuming applicability, plaintiffs failed at the first step (showing a demonstrated substantial risk) so alternative requirement was not dispositive |
| Admissibility and weight of defense expert (Dr. Evans) testimony | Plaintiffs attacked qualifications, methodology, and specific errors in Dr. Evans’ testimony; court should have excluded or discounted it | Dr. Evans is highly qualified; district court properly performed Daubert/Kumho gatekeeping and reasonably credited his reliable opinions on 500 mg midazolam effects | District court did not abuse discretion admitting/crediting Dr. Evans; its factual findings based on his testimony are not clearly erroneous |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (2008) (stay of execution requires showing the protocol creates a demonstrated risk of severe pain and the risk is substantial compared to known alternatives)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (preliminary-injunction standards: likelihood of success, irreparable harm, balance of equities, public interest)
- Hill v. McDonough, 547 U.S. 573 (2006) (procedural posture for Eighth Amendment method-of-execution claims; significant possibility of success required for relief)
- Farmer v. Brennan, 511 U.S. 825 (1994) (Eighth Amendment requires showing an objectively substantial risk of serious harm and officials’ deliberate indifference)
- Helling v. McKinney, 509 U.S. 25 (1993) (exposure to future harm can violate Eighth Amendment if risk is sure or very likely to cause serious illness and suffering)
- Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010) (applying Baze framework to a challenge to a replacement execution drug; requirement to compare risk to known and available alternatives)
- Munaf v. Geren, 553 U.S. 674 (2008) (characterizing preliminary injunction as extraordinary relief)