In re Ohio Execution Protocol Litig.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0136p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: OHIO EXECUTION PROTOCOL. ┐
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ANGELO FEARS, et al., │
Plaintiffs, │ No. 17-3076
>
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GARY OTTE; RONALD PHILLIPS; RAYMOND TIBBETTS, │
│
Plaintiffs-Appellees, │
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v. │
│
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DONALD MORGAN, et al.,
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Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:11-cv-01016—Michael R. Merz, Magistrate Judge.
Argued: June 15, 2017
Decided and Filed: June 28, 2017
Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS,
ROGERS, SUTTON, McKEAGUE, GRIFFIN, KETHLEDGE,
WHITE, STRANCH, DONALD, and THAPAR, Circuit Judges.*
_________________
COUNSEL
REARGUED EN BANC: Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellants. Mark E. Haddad, SIDLEY AUSTIN LLP, Los Angeles,
California, for Appellees. ON SUPPLEMENTAL BRIEF: Eric E. Murphy, Peter T. Reed,
Hannah C. Wilson, Thomas E. Madden, Jocelyn K. Lowe, Charles L. Wille, Katherine E. Mullin,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Mark E.
*
Judge Cook recused herself from this case.
No. 17-3076 In re Ohio Execution Protocol Litig. Page 2
Haddad, Joshua E. Anderson, Alycia A. Degen, Katherine A. Roberts, Collin P. Wedel, Adam P.
Micale, SIDLEY AUSTIN LLP, Los Angeles, California, Allen L. Bohnert, Erin G. Barnhart,
Adam M. Rusnak, Nadia Wood, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, James A. King, PORTER, WRIGHT,
MORRIS & ARTHUR LLP, Columbus, Ohio, Vicki Werneke, FEDERAL PUBLIC DENDER,
Cleveland, Ohio, Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL SWEENEY,
Cleveland, Ohio, Lisa M. Lagos, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus,
Ohio, for Appellees.
KETHLEDGE, J., delivered the opinion of the court in which BATCHELDER,
GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, and THAPAR, JJ., joined, and
WHITE, J., joined in the analysis of judicial estoppel. MOORE, J. (pp. 16–40), delivered a
separate dissenting opinion in which COLE, C.J. and CLAY, STRANCH, and DONALD, JJ.,
joined, and WHITE, J., joined in all except part II.C. regarding judicial estoppel. STRANCH, J.
(pp. 41–42), delivered a separate concurrence to Judge Moore’s dissent.
_________________
OPINION
_________________
KETHLEDGE, Circuit Judge. Roughly two decades have passed since the plaintiffs in
this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so
badly that her internal organs ruptured. For two days she suffered intense abdominal pain and
vomiting, until her heart collapsed. See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995).
Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head. Two
nights later, Otte pushed his way into a woman’s home and did the same things to her. After
each murder Otte went out partying. See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996).
Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his
chair with butcher knives protruding from his chest and back. His caretaker lay on the floor in a
pool of blood with her skull cracked open and its contents scattered nearby. See State v. Tibbetts,
749 N.E.2d 226, 237-39 (Ohio 2001).
Phillips, Otte, and Tibbetts now claim that Ohio’s Execution Protocol would cause them
to suffer severe pain in violation of the Eighth Amendment. In a sense the claim is
unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for
carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v.
Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted). The State’s chosen
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procedure here is the same procedure (so far as the combination of drugs is concerned) that the
Supreme Court upheld in Glossip. Every other court of appeals to consider that procedure has
likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical
challenge in a procedural posture identical to the one here. See McGehee v. Hutchinson,
854 F.3d 488, 492 (8th Cir. 2017) (en banc) (per curiam), cert. denied, 137 S. Ct. 1275 (2017);
Glossip, 135 S. Ct. at 2739-40 (collecting cases); Brooks v. Warden, 810 F.3d 812, 818-22 (11th
Cir. 2016); cf. Jordan v. Fisher, 823 F.3d 805, 811-12 (5th Cir. 2016). Yet here the district court
thought the same procedure is likely invalid. We respectfully disagree and reverse the court’s
grant of a preliminary injunction.
I.
The litigation that produced this appeal began in 2004, when death-row inmates
challenged Ohio’s then-existing three-drug protocol under 42 U.S.C. § 1983. That protocol
called for the injection of sodium thiopental (which anesthetizes the prisoner) followed by
pancuronium bromide (which paralyzes the prisoner’s muscles) and finally potassium chloride
(which stops the prisoner’s heart). By 2008, 30 of the 36 states with the death penalty had
adopted that three-drug protocol. See Baze v. Rees, 553 U.S. 35, 42-44 (2008). Yet the Ohio
inmates argued that the protocol created an unacceptable risk that, if the sodium thiopental were
improperly administered, inmates would feel the painful effects of the second and third drugs. In
2008, the Supreme Court rejected that argument and upheld Kentucky’s nearly identical three-
drug protocol. See id. at 41.
Nevertheless, the next year, Ohio announced that it was switching to the same one-drug
protocol favored by the losing plaintiffs in Baze: a massive, lethal dose of either sodium
thiopental or another barbiturate, pentobarbital. From 2010 to 2013, Ohio executed 20 inmates
using those barbiturates. Meanwhile, opponents of the death penalty successfully pressured the
pharmaceutical companies who make the drugs to stop selling them to states. See Glossip, 135
S. Ct. at 2733-35. Ohio’s supplies soon ran out, as did other states’. See id.; R. 941 at 31942-44.
The shortage led some states with three-drug protocols to turn to midazolam, a sedative
in the same family of drugs as Valium. See Glossip, 135 S. Ct. at 2733-34. In 2014, Oklahoma
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adopted a protocol that called for the administration of 500 milligrams of midazolam—about
100 times the usual therapeutic dose—followed by a paralytic agent (pancuronium bromide,
rocuronium bromide, or vecuronium bromide) and potassium chloride. Death-row inmates filed
a § 1983 action alleging that Oklahoma’s protocol violated the Eighth Amendment. As relief,
the inmates sought a stay, which the district court denied. The Supreme Court affirmed the
denial for two “independent reasons”: that the district court “did not commit clear error when it
found that midazolam is highly likely to render a person unable to feel pain during an
execution”; and that Oklahoma was unable to acquire either pentobarbital or sodium thiopental.
Id. at 2731, 2738-39.
In October 2016, Ohio adopted a lethal-injection protocol using the same three drugs that
Oklahoma uses. Like the Oklahoma protocol, the Ohio protocol contains several procedural
safeguards to ensure that executions are carried out humanely, including guidelines for
identifying viable IV sites, detailed requirements for training execution team members, and a
“consciousness check” after the 500-milligram injection of midazolam. If the prisoner is found
to be conscious, a qualified drug administrator can inject another 500 milligrams of midazolam.
After confirming that the prisoner is unconscious, the team can then administer the second and
third drugs. See R. 667-1 at 19828-29.
Ohio planned to use this protocol to execute Phillips, Otte, and Tibbetts during the first
four months of this year. The three inmates then filed complaints and moved for a preliminary
injunction, claiming among other things that Ohio’s three-drug protocol violates the Eighth
Amendment’s ban on “cruel and unusual punishments.” The plaintiffs’ theory here is the same
one the Court rejected in Glossip: that the first drug—a massive dose of midazolam—will not
prevent them feeling severe pain after injection of the second and third drugs.
After an evidentiary hearing, the district court found that “use of midazolam as the first
drug” in Ohio’s three-drug protocol would create a “substantial risk of serious harm” under Baze
and Glossip. The court separately held that Ohio was estopped from using the paralytic and
heart-stopping drugs because of Ohio’s putative representations when it switched from its
original three-drug protocol to the one-drug protocol in 2009. Thus, the court held that the
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plaintiffs had demonstrated a likelihood of success on their claims, and stayed the plaintiffs’
executions. This appeal followed.
II.
A.
The plaintiffs first argue that Ohio’s three-drug protocol violates their Eighth
Amendment right to be free from cruel and unusual punishment. As to that claim, we begin with
two areas of common ground. First, we agree with the plaintiffs and the district court that the
protocol’s second and third drugs—the paralytic and potassium chloride, which stops the
inmate’s heart—would cause severe pain to a person who is fully conscious. (Hence the need for
the first drug—the 500-milligram dose of midazolam.) Second, we reject the State’s argument
that the Supreme Court’s holding in Glossip categorically bars the plaintiffs’ claim here.
The Court’s holding—that the district court there “did not commit clear error when it found that
midazolam is highly likely to render a person unable to feel pain during an execution[,]” 135 S.
Ct. at 2739—is couched expressly in terms of a standard of review that cuts the other way here.
But neither, as the plaintiffs suggest, is Glossip irrelevant here. Quite the contrary: the Court’s
opinion contains plenty of reasoning that was not confined to the record there—and which
therefore binds us just as much as the reasoning in any other opinion of the Supreme Court.
1.
Yet here the district court’s opinion was seriously flawed nonetheless. To begin with,
that opinion did not apply the relevant legal standard, which by now the Supreme Court and our
court have recited a total of four times. Specifically, to challenge successfully a State’s chosen
method of execution, the plaintiffs must “establish that the method presents a risk that is sure or
very likely to cause” serious pain and “needless suffering[.]” Glossip, 135 S.Ct. at 2737(emphasis in original) (internal quotations marks omitted); see also Baze, 553 U.S. at 50 (same);
Cooey v. Strickland (Cooey II), 604 F.3d 939, 944 (6th Cir. 2010) (same); Cooey v. Strickland
(Cooey I), 589 F.3d 210, 220 (6th Cir. 2009) (same). Instead, the district court addressed only
whether Ohio’s procedure presents a “substantial risk of serious harm,” Baze, 553 U.S. at 50(internal quotation marks omitted). That standard is correct so far as it goes; but it elides the
No. 17-3076 In re Ohio Execution Protocol Litig. Page 6
more rigorous showing—that the method of execution is sure or very likely to cause serious
pain—that the Supreme Court and our court have repeatedly said is necessary to satisfy the
“substantial risk” standard in the particular context present here. Accord McGehee, 854 F.3d at
492.
Nor, respectfully, did the district court offer much reasoning in support of its decision.
(To some extent that omission is understandable, given the tight timelines applicable here.)
The bulk of the court’s opinion merely summarized the expert testimony on both sides. The
relevant question, to reiterate, is whether the plaintiffs met their “heavy burden,” Baze, 553 U.S.
at 53, to show that an inmate who receives a 500-milligram dose of midazolam is “sure or very
likely” to be conscious enough to experience serious pain from the second and third drugs in the
protocol. Glossip, 135 S. Ct. at 2737. As to that question the experts offered diametrically
opposed conclusions: the plaintiffs’ experts argued that serious pain was “highly likely” or a
“virtual certainty,” while Ohio’s experts testified that the risk was “very, very low” or
“speculative.” Compare R. 923 at 30802-03 and R. 844-1 at 24944 with R. 924 at 31063-64 and
R. 852-2 at 25831-32. Yet the district court offered virtually no reason for its decision to adopt
the conclusions of the plaintiffs’ experts wholesale. The court did say, “[w]ithout knowing
precisely why,” that inmates who are “administered midazolam” (including doses as low as ten
milligrams—one fiftieth of the dosage at issue here) “take longer to die and exhibit different
bodily behaviors in the process.” R. 948 at 32227. The court also noted that “there was little
support in the record for the idea that midazolam would be used alone” (again, at doses that are a
tiny fraction of the dosage at issue here) “for surgeries other than those performed on an
outpatient basis.” Id. at 32228. The latter observation has little relevance in light of a passage
from Glossip that does bind us here: “the fact that a low dose of midazolam is not the best drug
for maintaining unconsciousness during surgery says little about whether a 500-milligram dose
of midazolam is constitutionally adequate for purposes of conducting an execution.” 135 S. Ct.
at 2742 (emphasis in original). And taken even on their own terms, neither of the district court’s
observations provides much support for the conclusion that a 500-milligram dose of midazolam
is very likely to leave an inmate conscious enough to feel serious pain.
No. 17-3076 In re Ohio Execution Protocol Litig. Page 7
The court also drew what it called “reasonable inferences” from the abandonment of
midazolam-based protocols by three states. R. 948 at 32228. First, the district court noted that,
in 2014, Ohio abandoned the midazolam-opioid protocol that it used to execute Dennis McGuire.
Id. But McGuire’s dose of midazolam was only 10 milligrams, so again his execution says little
about the effectiveness of a 500-milligram dose. Second, the district court found that Florida,
“despite having conducted many executions using midazolam, abandoned the drug while this
case was in hearing.” Id. But the court did not explain why Florida changed its protocol or why
that decision helps the plaintiffs here. And meanwhile, in Glossip, the Supreme Court observed
that Florida had used midazolam in 11 executions, apparently “without any significant
problems.” 135 S. Ct. at 2734, 2746. Third, the district court noted that Arizona had
“abandoned midazolam shortly before [the hearing below] as a result of settling litigation over its
use.” R. 948 at 32228. But Arizona’s settlement agreement says nothing about why the State
abandoned midazolam, other than that the State had run out of it. See R. 976-2 at 36214. None
of these states’ actions, therefore, provide reason to infer that 500 milligrams of midazolam is
sure or very likely to leave an inmate conscious enough to feel serious pain.
Otherwise, the district court merely observed that “there are not now and never will be
clinical studies of the effect of injecting 500 mg of midazolam into a person[,]” and that “we
certainly cannot ask the executed whether they experienced pain after the injection of
midazolam[.]” R. 948 at 32227-28. Those observations are obviously correct, but the district
court’s reliance on them effectively shifted the burden of proof to the State. Fairly or not, the
applicable legal standard requires the plaintiffs to prove their allegations to a high level of
certainty; yet the district court based its decision, at best, on uncertainty.
2.
The district court’s findings thus provide little support for its conclusion that Ohio’s
three-drug protocol creates an unconstitutional risk of pain. Since we can affirm the district
court’s decision on any ground supported by the record, however, we must consider whether the
plaintiffs met their burden for reasons the court did not articulate. The plaintiffs’ evidence as to
risk of pain fell into two main categories: testimony about midazolam’s effects, and testimony
about executions carried out with midazolam. We address each in turn.
No. 17-3076 In re Ohio Execution Protocol Litig. Page 8
Each side offered testimony from two experts as to midazolam’s effects. The plaintiffs
offered testimony from Dr. Sergio Bergese, M.D., an anesthesiologist, and Dr. Craig Stevens,
Ph.D., a pharmacologist. The State offered testimony from Dr. Joseph Antognini, M.D., an
anesthesiologist, and Dr. Daniel Buffington, Ph.D., a pharmacologist.
The experts generally agreed that midazolam ultimately has a “ceiling” above which an
increase in dosage will not have any greater anesthetic effect. (On that point Dr. Buffington was
the only dissenter.) Dr. Stevens attempted to estimate the ceiling using two different methods.
One method, based on extrapolations from petri-dish experiments, suggested that the ceiling
effect occurs at 228 milligrams. R. 923 at 30800. Another method, based on extrapolations from
clinical studies, yielded an estimate of 25 milligrams. R. 836-1 at 24827. That Dr. Stevens’s
estimates vary by a factor of nine, however, underscores that they are highly speculative.
Moreover, even Dr. Stevens’s estimates suggest that any ceiling effect arrives only at doses five
to 45 times greater than the usual therapeutic dose. And in any event the relevant question is not
whether the ceiling effect arrives at the equivalent of five doses or 45, but whether, once it
arrives, an inmate is sure or very likely to experience serious pain from the second and third
drugs. See Glossip, 135 S. Ct. at 2743.
As to that point, Dr. Stevens testified that midazolam cannot produce “general
anesthesia,” the level of unconsciousness appropriate for major surgeries. Studies indicate that
midazolam—at doses in the therapeutic range—produces “deep sedation,” a level of brain
depression just short of general anesthesia. But none of those studies involved the massive doses
at issue here. See id. at 2742 (“The effect of a small dose of midazolam has minimal probative
value about the effect of a 500-milligram dose”). Meanwhile, the experts for both sides agreed
that midazolam is sometimes used alone for intubation, a medical procedure in which a tube is
inserted into a person’s windpipe. Dr. Antognini, one of Ohio’s experts, testified that intubation
is “incredibly stimulating.” R. 924 at 31052. Dr. Bergese likewise acknowledged that intubation
is “very reactive,” meaning that “people react to [it] quite a bit.” R. 923 at 30900. True,
Dr. Bergese asserted in his expert report that the protocol’s second and third drugs are more
painful than intubation. But Dr. Bergese did not cite any medical evidence to support that
assertion. And Dr. Antognini did cite studies showing that injection of the paralytic drug has no
No. 17-3076 In re Ohio Execution Protocol Litig. Page 9
effect on a sedated person’s level of consciousness as measured by a brain scan, even when the
person appears to flinch in response. R. 924 at 31066. Dr. Antognini further testified that
midazolam would reduce or remove any sensation of suffocation (commonly referred to as “air
hunger”) caused by the paralytic. See id. at 31072, 31088-89.
Thus, even Dr. Bergese—the plaintiffs’ principal expert as to whether Ohio’s execution
protocol would cause inmates to experience severe pain—admitted that the science on this issue
“could go either way.” R. 923 at 30844, 30909. What tipped the balance for him, rather, was
“the eyewitness reports” from laymen who attended executions involving midazolam. Id. at
30909; see also id. at 30870. But that data came with a raft of problems of its own. First, the
sample size was small: in his expert report, Dr. Bergese discussed only nine midazolam-based
executions. See R. 844-1 at 24972-80. Second, most of those accounts came from witnesses
who, according to the district court, were likely to be “highly biased”—such as relatives of
executed inmates, capital-defense attorneys, and even the inmates’ own lawyers. R. 923 at
30869. And none of these witnesses had any medical training. See, e.g., R. 922 at 30644,
30713. Thus, as Dr. Bergese himself admitted, “the quality of the data is not there.” R. 923 at
30910; see also id. at 30869.
The reliability of Dr. Bergese’s opinion does not improve when one considers the
evidence of the nine executions themselves. Two of them—the execution of Clayton Lockett in
Oklahoma and the execution of Joseph Wood in Arizona—are ones that the Supreme Court has
specifically said have “little probative value” because they “did not involve the protocol at issue
here.” Glossip, 135 S. Ct. at 2746. And notwithstanding the plaintiffs’ assertion to the contrary,
we are not free to disregard that reasoning simply because the plaintiffs’ experts have to some
extent testified to the contrary here. Moreover, Lockett’s IV line was not properly connected.
See R. 948 at 32147; Glossip, 135 S. Ct. at 2734, 2746. A third execution—the McGuire
execution in Ohio—involved a dose of 10 milligrams of midazolam rather than 500. And the
district court in McGuire’s case found that McGuire had a condition that “might make him
susceptible to an airway obstruction.” R. 948 at 32191 n.26. Hence that execution too has “little
probative value[.]” Glossip, 135 S. Ct. at 2746.
No. 17-3076 In re Ohio Execution Protocol Litig. Page 10
That leaves six executions that were conducted using the same protocol at issue here. But
five of those involved reports only of eyes opening, “head movements,” and “foot movements”
after the injection of midazolam. R. 844-1 at 24974-80. And the plaintiffs concede that
“evidence of slight movements might, in a vacuum, not be compelling evidence of
consciousness.” Appellee Br. 54. Dr. Bergese likewise testified that minor movements are
possible even under general anesthesia. R. 923 at 30834, 30850. Moreover, even in executions
involving barbiturates, inmates may have “convulsions” without a paralytic. Workman v.
Bredesen, 486 F.3d 896, 909 (6th Cir. 2007). We upheld the use of a paralytic in executions for
that very reason, finding legitimate a state’s concern that “lethal injection without [the paralytic]
would typically result in involuntary movement,” which “might be misinterpreted as . . . an
indication of consciousness.” Id.That leaves only the execution of Ronald Smith in Alabama. The district court heard
testimony about that execution from Spencer Hahn, a federal defender in the Alabama Capital
Habeas Unit. According to Hahn, at some point after the injection of midazolam, Smith began
coughing, clenching and unclenching his fists, flailing his arms, and moving his lips. R. 922 at
30619. Both sides’ experts agreed, however, that people’s bodies can move at reduced levels of
consciousness. Dr. Antognini explained that surgical patients under anesthesia can respond to
noxious stimuli in complex ways, sometimes by thrashing about violently. R. 852-1 at 25792;
R. 924 at 31037, 31044, 31063-64. That is why patients’ arms are strapped down and their eyes
taped shut. R. 924 at 31044. Indeed, as the “Lazarus phenomenon” illustrates, even brain-dead
persons can move their limbs and seemingly respond to stimuli. See id. at 31036-37.
Dr. Stevens agreed that “reflexive withdrawal from a noxious stimulus is not considered a
purposeful movement.” R. 948 at 32196. Similarly, Dr. Bergese testified that “movement is . . .
in the spinal cord,” so “patients are going to move even when the consciousness is depressed.”
R. 923 at 30834. And a reporter for the Columbus Dispatch, who witnessed 19 executions using
barbiturate-based protocols, said that he had sometimes seen “clenching and unclenching of the
hands.” R. 922 at 30708.
As for coughing or gasping, neither demonstrates that the inmate is feeling air hunger.
Dr. Antognini testified that midazolam, like other anesthetics, can remove the sensation of air
No. 17-3076 In re Ohio Execution Protocol Litig. Page 11
hunger by depressing the drive to breathe. R. 924 at 31071-73, 31088-93. Even Dr. Bergese
admitted that an inmate who gasps repeatedly during an execution might not be conscious, and
that involuntary respirations associated with the process of dying are hard to distinguish from
purposeful attempts to breathe. See R. 923 at 30860-61. Dr. Antognini also testified that
patients can cough vigorously while under anesthesia for surgery, though this behavior may
signal that the patient is shifting to a lighter level of anesthesia. R. 924 at 31037, 31043, 31157,
31178.
All that said, Hahn’s description of the Smith execution is the plaintiffs’ best evidence in
support of their claim. But that evidence is far from compelling. Some people react differently
to drugs than other people do, see R. 923 at 30896; and the amount of movement reported in
Smith’s execution appears to be the exception, not the rule, for executions with the three-drug
protocol. More fundamentally, as Dr. Bergese himself explained, consciousness falls on a
“spectrum.” Id. at 30830. Yet he appeared to treat consciousness as binary when he opined that
an inmate sedated with 500 milligrams of midazolam would feel pain the same way a conscious
person would, simply because the inmate clenches his fists or coughs.
In sum, we will grant that the plaintiffs have shown some risk that Ohio’s execution
protocol may cause some degree of pain, at least in some people. But some risk of pain “is
inherent in any method of execution—no matter how humane[.]” Baze, 553 U.S. at 47. And the
Constitution does not guarantee “a pain-free execution[.]” Cooey I, 589 F.3d at 220. Different
people may have different moral intuitions as to whether—taking into account all the relevant
circumstances—the potential risk of pain here is acceptable. But the relevant legal standard, as it
comes to us, requires the plaintiffs to show that Ohio’s protocol is “sure or very likely” to cause
serious pain. Glossip, 135 S. Ct. at 2737, 2745. The district court did not meaningfully apply
that standard here. And the plaintiffs have fallen well short of meeting it.
B.
That shortcoming by itself is sufficient to defeat the plaintiffs’ claim under Glossip. But
the district court also erred in its analysis of Glossip’s second prong—which requires the
plaintiffs to prove that an alternative method of execution is “available,” “feasible,” and can be
No. 17-3076 In re Ohio Execution Protocol Litig. Page 12
“readily implemented,” among other things. Id. at 2737. The court found this requirement met
as to one of the plaintiffs’ proposed alternatives, namely a one-drug, barbiturate-only method
using either sodium thiopental or pentobarbital. The court acknowledged, however, that Ohio no
longer has any supplies of these drugs, that “Ohio’s efforts to obtain the drug from other States
and from non-State sources have not met with success[,]” and that Ohio is “not likely” to
overcome these obstacles anytime soon. R. 948 at 32229. Yet the court concluded that
barbiturates are “available” to Ohio because “there remains the possibility” that Ohio can obtain
the active ingredient of pentobarbital and have it made into injectable form by a compounding
pharmacy. Id.The district court was seriously mistaken as to what “available” and “readily
implemented” mean. (For that reason the district court’s error is legal, and thus subject to de
novo review. See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748
(2014).) To obtain pentobarbital or its active ingredient, Ohio would need to receive an import
license from the Drug Enforcement Administration. R. 948 at 32229. Ohio’s application for that
license has been pending, without apparent action by the DEA, for more than four months.
See R. 966-13 at 34506-10; R. 966-14 at 34512-17. Ohio does not know whether the DEA will
approve its application, or even when that decision might be made. R. 948 at 32229. And even
if that application is approved, Ohio might not be able to locate a willing supplier or
manufacturer, for reasons the Supreme Court explained at some length in Glossip. See 135 S. Ct.
at 2733. As the district court acknowledged, even the plaintiffs’ expert, Dr. Stevens, “was
unable to identify any manufacturers or suppliers of thiopental and/or pentobarbital who were
willing to sell those drugs, or even those drugs’ active pharmaceutical ingredients, to Ohio for
the purposes of conducting lethal injection executions.” R. 948 at 32163. The plaintiffs, for
their part, rely on Dr. Buffington’s testimony about an affidavit he filed in a prior Alabama case,
in which he stated that he believed “there are pharmacists in the United States that are able to
compound pentobarbital for use in lethal injections because other states have been reported to
have obtained compounded pentobarbital for use in executions.” R. 925 at 31440-41. But that is
quite different from saying that any given state can actually locate those pharmacies and readily
obtain the drugs. And Dr. Buffington testified that he personally contacted 15 pharmacies to that
end without success. Id. Indeed, in the very case in which Dr. Buffington submitted his
No. 17-3076 In re Ohio Execution Protocol Litig. Page 13
affidavit, the Eleventh Circuit rejected the claim that pentobarbital was available to Alabama.
Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1296 (11th Cir. 2016), cert. denied sub
nom. Arthur v. Dunn, 137 S. Ct. 725 (2017). Meanwhile, Ohio itself contacted the departments
of correction in Texas, Missouri, Georgia, Virginia, Alabama, Arizona, and Florida to ask
whether they would be willing to share their supplies of pentobarbital. All refused. See R. 905-1
at 30313-14. Granted, for the one-drug protocol to be “available” and “readily implemented,”
Ohio need not already have the drugs on hand. But for that standard to have practical meaning,
the State should be able to obtain the drugs with ordinary transactional effort. Plainly it cannot.
The reality is that the barbiturate-only method is no more available to Ohio than it was to
Oklahoma two years ago in Glossip, for precisely the same reasons.
C.
That leaves the district court’s determination that Ohio is judicially estopped from
returning to a three-drug protocol. The plaintiffs ask us to review that determination for an abuse
of discretion, citing the Supreme Court’s reference to judicial estoppel as an “equitable doctrine”
in New Hampshire v. Maine, 532 U.S. 742, 750 (2001). But we have twice rejected that
argument and “continue[d] to apply de novo review.” Mirando v. U.S. Dep’t of Treasury,
766 F.3d 540, 545 n.1 (6th Cir. 2014); Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, LLP,
546 F.3d 752, 757 (6th Cir. 2008). And here, as in a recent Second Circuit case, “the choice
between the two standards is immaterial, for under either,” the doctrine of judicial estoppel “is
inapplicable[.]” Chevron Corp. v. Donziger, 833 F.3d 74, 128 (2d Cir. 2016).
The doctrine’s purpose is to prevent a party “from abusing the judicial process through
cynical gamesmanship” by changing positions “to suit an exigency of the moment.” Mirando,
766 F.3d at 545. And when, as here, the doctrine is invoked against a state, it must be “construed
narrowly.” See United States v. Owens, 54 F.3d 271, 275 (6th Cir. 1995).
According to the plaintiffs, Ohio’s plan to use a three-drug protocol contradicts Ohio’s
statements in 2009 that it was switching to a one-drug protocol and that “going forward,
pancuronium bromide [the paralytic drug] no longer will be used as part of the lethal injection
process.” R. 718-3 at 22390. Ohio also stated in a motion for summary judgment that a then-
No. 17-3076 In re Ohio Execution Protocol Litig. Page 14
pending challenge to its prior three-drug protocol was moot—because Ohio was no longer using
it. R. 966-2. The district court never granted Ohio’s motion, but our court soon held that any
challenge to Ohio’s old three-drug protocol (using sodium thiopental) was “now moot.” Cooey
v. Strickland, 588 F.3d 921, 923 (6th Cir. 2009) (per curiam). Thus, the plaintiffs argue, Ohio
prevailed by “permanently” renouncing the paralytic and potassium chloride—a promise on
which Ohio has putatively now reneged.
The argument is meritless. As an initial matter, the plaintiffs nowhere explain how they
have been harmed in the current litigation, or how the State has been helped, by the fact that the
parties in the prior litigation did not have a trial about the sodium-thiopental three-drug protocol
in 2009. To the contrary, by all appearances, the absence of that trial has made zero difference in
this litigation. The effects of the two drugs that the old and new protocol share (namely, the
paralytic and the heart-stopping drug) are undisputed. What is disputed, rather, is the effects of
midazolam; and there is no reason to think that a trial about sodium thiopental would have
affected that issue one way or the other.
More to the point, Ohio represented in 2009 that it was switching to a one-drug protocol
in the context of a particular case involving particular named plaintiffs, which apparently do not
include the named plaintiffs here. Ohio then proceeded to execute 20 death-row inmates with the
new one-drug protocol, which should be proof enough of the State’s truthfulness in making those
representations. Ohio did argue in support of its summary-judgment motion (which the State
itself later withdrew) that “[t]here is absolutely no reason to believe that defendants will reinstate
the previous ‘three-drug protocol’ if the plaintiffs’ suits were dismissed.” R. 966-2 at 34329.
But that was before death-penalty opponents successfully prevented Ohio (along with other
states) from obtaining the drugs necessary to use the one-drug protocol. See Glossip, 135 S. Ct.
at 2733-34. Ohio then ceased executions altogether for about three years, before switching to the
three-drug protocol that the Supreme Court had recently upheld in Glossip.
A state’s change in policy in response to unforeseen circumstances like these is hardly the
kind of inconsistency that warrants estoppel. See New Hampshire, 532 U.S. at 749-50; Owens,
54 F.3d at 275. Judicial estoppel prohibits “playing fast and loose with the courts”—that is,
“abusing the judicial process through cynical gamesmanship” by changing positions “to suit an
No. 17-3076 In re Ohio Execution Protocol Litig. Page 15
exigency of the moment.” New Hampshire, 532 U.S. at 749-50; Mirando, 766 F.3d at 545.
Suffice it to say that, if any gamesmanship led us to this pass, it was not gamesmanship by the
State.
* * *
The plaintiffs have failed to demonstrate a likelihood of success on their claims. That
failure is “dispositive.” Cooey II, 604 F.3d at 946. We therefore vacate the district court’s
January 26, 2017 preliminary injunction.
No. 17-3076 In re Ohio Execution Protocol Litig. Page 16
_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. There is a narrow question
before this court: Should Gary Otte, Ronald Phillips, and Raymond Tibbetts have a trial on their
claim that Ohio’s execution protocol is a cruel and unusual punishment, or should Ohio execute
them without such a trial? The majority has concluded that there is no need for a trial on the
merits of Plaintiffs’ constitutional claim. I disagree.
There is no dispute that the second and third drugs in Ohio’s execution protocol cause
immense pain. There is significant evidence that the first drug, midazolam, cannot prevent
someone from feeling that pain. After a five-day hearing on Plaintiffs’ motion for a preliminary
injunction, the district court determined that there should be a full trial on the merits of Plaintiffs’
claim that Ohio’s use of midazolam as the first drug in a three-drug execution protocol creates a
constitutionally unacceptable risk of pain. Despite the deferential standard of review that this
court should apply, the majority casts aside the district court’s determination that Plaintiffs
should have a trial before the state executes them. The majority also determines that despite
Defendants’ unequivocal sworn testimony that they would no longer use pancuronium bromide
or potassium chloride in executions, judicial estoppel does not prevent their renewed attempt to
use those drugs. For the reasons discussed below, I would hold that Plaintiffs should have a trial
on their Eighth Amendment and judicial-estoppel claims, and I respectfully dissent.
I. BACKGROUND
Because a key issue in this case is whether the district court made the requisite findings
of fact to support a preliminary injunction, I begin by discussing the evidence presented to the
district court and the district court’s findings of fact based on that evidence. Over the course of
the five-day hearing, the district court heard testimony from four experts: Dr. Craig Stevens,
PhD., a Professor of Pharmacology at Oklahoma State University who testified as an expert
witness for Plaintiffs; Dr. Sergio Bergese, M.D., a Professor of Anesthesiology and Neurological
Surgery and practicing anesthesiologist at The Ohio State University Wexner Medical Center
No. 17-3076 In re Ohio Execution Protocol Litig. Page 17
who testified as an expert witness for Plaintiffs; Dr. Joseph Antognini, M.D., a retired
anesthesiologist and faculty member at University of California, Davis who testified as an expert
witness for Defendants; and Dr. Daniel Buffington, Pharm.D, a pharmacologist in private
practice who testified as an expert witness for Defendants. The district court also heard
testimony from: Edwin Voorhies, the Managing Director of Operations for the Ohio Department
of Rehabilitation and Correction; Gary Mohr, the Director of the Ohio Department of
Rehabilitation and Correction; and two Ohio Department of Rehabilitation and Correction
Execution Team members (who testified anonymously). A reporter, Alan Johnson, testified as
an eyewitness to the execution of Dennis McGuire by the State of Ohio. Five legal professionals
testified as eyewitnesses to out-of-state executions in which midazolam was part of a multi-drug
execution protocol.
In his 119-page Decision and Order Granting in Part and Denying in Part Plaintiffs’
Motions for Preliminary Injunction, the magistrate judge discussed this testimony and set out his
findings of fact. First, the district court discussed the testimony of three eyewitnesses to Ohio’s
execution of Dennis McGuire: ODRC Director Gary Mohr, Execution Team Member No. 10,
and reporter Alan Johnson. All three testified that after McGuire appeared to be unconscious,
McGuire’s stomach began repeatedly to knot up and then relax, and McGuire began to snort.
Decision & Order at 20–21. According to Johnson, “McGuire began coughing, gasping, choking
in a way that I had not seen before at any execution.” Id. at 21. Johnson also testified that
McGuire gasped “in a way that almost seemed to be choking,” clenched and unclenched his
hands, and “attempted to kind of lift up off the table.” Id. Johnson testified that McGuire gasped
fifteen or sixteen times, and that the gasping or choking went on for twelve to thirteen minutes.
Id. Johnson has witnessed twenty Ohio executions, and had never previously seen anything like
the intensity or duration of McGuire’s reaction. Id. Mohr has overseen eleven executions, and
testified that he had not previously seen a reaction like McGuire’s. Id. at 20.
Next, the district court discussed the testimony of five eyewitnesses to midazolam-
involved executions that took place outside of Ohio. Two of these out-of-state executions
occurred after the Supreme Court’s Glossip decision. Spencer Hahn, an Assistant Federal
Defender in the Capital Habeas Unit in the Middle District of Alabama, witnessed the December
No. 17-3076 In re Ohio Execution Protocol Litig. Page 18
8, 2016 execution of Ronald Smith by the State of Alabama. Like Ohio’s current execution
protocol, the protocol used to execute Smith called for 500 milligrams of midazolam. It also
called for a 600-milligram dose of a paralytic drug, and 240 milliequivalents of potassium
chloride. Decision & Order at 22. Hahn testified that “[t]here were two periods in which
[Smith] appeared to rest somewhat briefly” but then he began “coughing, heaving, flailing, or
attempting to flail arms, clenching and unclenching of fists, movement of lips . . . and then doing
this asthmatic cough, barking-type cough.” Id. at 22. Terry Alang, an attorney employed as an
investigator in the Capital Habeas Unit in the Middle District of Alabama, witnessed the January
20, 2016 execution of Christopher Brooks by the State of Alabama. Alabama used the same
execution protocol that it used in the Smith execution, most notably 500 milligrams of
midazolam. According to Alang’s testimony, after the execution team members administered
midazolam, Brooks’s chest began heaving. Id. at 24.
The district court also discussed testimony about three executions that occurred before
the Supreme Court’s Glossip decision. Id. at 22. First, Sonya Rudenstine, a Florida lawyer who
specializes in capital post-conviction work, witnessed the execution of Paul Howell by the State
of Florida. Like Ohio’s current execution protocol, the protocol used to execute Howell called
for 500 milligrams of midazolam in two separate injections of 250 milligrams each. Id. at 23.
The protocol then called for 200 milligrams of vecuronium bromide in two 100-milligram
injections, followed by 240 milliequivalents of potassium chloride. Id. Rudenstine observed
Howell open his eyes after the consciousness check. Id.
Second, Dale Baich, a supervisor in the Federal Defender Capital Habeas Unit in
Arizona, witnessed the execution of Joseph Wood by the State of Arizona. Id. The protocol
used to execute Wood called for injection of a mixture of 50 milligrams of midazolam and 50
milligrams of hydromorphone. Id. During Wood’s execution, the State injected this mixture
fifteen separate times. Id. “Wood continued to gasp and try to breathe until his death . . . almost
two hours after the process began.” Id. In a settlement agreement entered on December 19,
2016, Arizona agreed to “never again use midazolam, or any other benzodiazepine, as part of a
drug protocol in a lethal injection execution.” R. 976-2 (Stipulated Settlement Agreement at 2)
(Page ID #36214); see also id. at 23.
No. 17-3076 In re Ohio Execution Protocol Litig. Page 19
Third, Dean Sanderford, an Assistant Federal Defender in Colorado, witnessed the
execution of Clayton Lockett by the State of Oklahoma. Decision & Order at 24. The protocol
used to execute Lockett called for 100 milligrams of midazolam followed by a paralytic agent
and potassium chloride. Id. According to Sanderford, three or four minutes after the
administration of the paralytic, Lockett began writhing and attempted to speak. Id.
The district court then discussed, at great length, the testimony of the four expert
witnesses. Dr. Stevens discussed sedation and general anesthesia. He explained that there are
different levels of sedation: minimal sedation (i.e., the sedation that would be appropriate for a
root canal); moderate sedation; and deep sedation. General anesthesia is beyond the deepest
level of sedation, and is the state appropriate for surgery. Only at the level of general anesthesia
is someone unconscious. Dr. Stevens explained that midazolam can bring someone to the state
of deep sedation, but not to general anesthesia or unconsciousness. Decision & Order at 78.
Similarly, Dr. Bergese testified that he would never use midazolam alone as an anesthetic. He
also testified that when midazolam is used as an anesthetic, it is for relatively minor procedures,
such as colonoscopies, as opposed to more invasive surgeries. Id. at 47.
To explain why midazolam cannot render someone unconscious, Dr. Stevens explained
midazolam’s ceiling effect. Id. at 31–32. Midazolam acts on a receptor called GABAA (GABA
is short for gamma-aminobutyric acid), and can decrease neural activity only when GABAA is
present. Once there is no GABAA left for midazolam to act on, midazolam cannot decrease
neural activity anymore and the drug reaches its maximum potency, or ceiling. At this point,
administering more midazolam does not increase midazolam’s effect.
Dr. Stevens explained that midazolam’s reliance on GABAA, and consequential ceiling
effect, is a distinction between midazolam and barbiturates like thiopental sodium. Id. at 31–32.
Midazolam is a benzodiazepine, whereas thiopental sodium is a barbiturate. Although both
benzodiazepines and barbiturates work on the central nervous system and can be used as
sedatives, barbiturates can decrease neural activity without GABAA present. According to Dr.
Stevens, because barbiturates do not depend on GABAA, they do not have a ceiling effect.
Dr. Bergese agreed generally that midazolam has a maximum impact, but he emphasized that his
main concern is that midazolam is simply the wrong drug to use. Id. at 87.
No. 17-3076 In re Ohio Execution Protocol Litig. Page 20
In response to Dr. Stevens’s discussion of ceiling effects, Dr. Antognini testified that
midazolam’s ceiling effect is not germane. In his view, a 500-milligram dose of midazolam is
sufficient to render a person unconscious. Whatever ceiling effect midazolam may have beyond
the amount necessary to render someone unconscious is irrelevant. Decision & Order at 70. He
also testified that data on midazolam’s ceiling effect is unclear. Id. at 71. Taking an entirely
different tack, Dr. Buffington disputed that midazolam has a ceiling effect at all. Id. at 93.
However, he also testified that when midazolam is used alone, it is usually in situations where
general anesthesia is not required, such as resetting bones, vasectomies, or placement of tubes or
implanted devices. Id. at 92.
Dr. Antognini and Dr. Stevens disagreed strongly about whether midazolam possesses
any analgesic (painkilling) properties. Dr. Antognini testified that midazolam does possess some
analgesic properties, at least in massive doses. Dr. Stevens, by contrast, was adamant that
midazolam does not treat pain. Id. at 75. Dr. Bergese agreed with Dr. Stevens. Id. at 47.
Without addressing midazolam’s analgesic properties, Dr. Buffington said that midazolam would
sedate someone sufficiently to render them insensate to the pain caused by a paralytic and
potassium chloride. Id. at 94. Dr. Antognini testified that the risk that someone would
experience pain after receiving a 500-milligram dose of midazolam is “very, very low.” Id. at
66. Dr. Stevens, by contrast, concluded that “‘the use of midazolam as the first drug in a three-
drug protocol is highly likely to cause intolerable pain and suffering,’ stemming from the
administration of the second and third drugs.” Id. at 40. Again, Dr. Bergese agreed with Dr.
Stevens. Id. at 47. The testimony of Dr. Stevens and Dr. Bergese that midazolam does not
eliminate pain is unequivocal.
II. DISCUSSION
A. Legal Standards
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Glossip v.
Gross, 135 S. Ct. 2726, 2736 (2015). “The preliminary injunction posture of the present case
No. 17-3076 In re Ohio Execution Protocol Litig. Page 21
thus requires petitioners to establish a likelihood that they can establish both that [Ohio’s] lethal
injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when
compared to the known and available alternatives.” Id. at 2737.
An appellate court must review a district court’s decision granting or denying a
preliminary injunction for an abuse of discretion. Ashcroft v. Am. Civil Liberties Union,
542 U.S. 656, 664 (2004). “Under this standard, the court reviews the district court’s legal
conclusions de novo and its factual findings for clear error.” Babler v. Futhey, 618 F.3d 514,
520 (6th Cir. 2010); see also Glossip, 135 S. Ct. at 2739. “[A] finding is ‘clearly erroneous’
when although there is evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948)). The clearly erroneous standard “plainly does not entitle a reviewing
court to reverse the finding of the trier of fact simply because it is convinced that it would have
decided the case differently.” Id. In particular, “when a trial judge’s finding is based on his
decision to credit the testimony of one of two or more witnesses, each of whom has told a
coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if
not internally inconsistent, can virtually never be clear error.” Id. at 575.
Recently, the Supreme Court reiterated the deference owed to a district court’s findings
of fact, even when other trial courts have made different findings. “The rule that we review a
trial court’s factual findings for clear error contains no exception for findings that diverge from
those made in another court. Whatever findings are under review receive the benefit of
deference, without regard to whether a court in a separate suit has seen the matter differently.”
Cooper v. Harris, 137 S. Ct. 1455, 1468 (2017) (citing Fed. R. Civ. P. 52(a)(6); Hernandez v.
New York, 500 U.S. 352, 369 (1991) (plurality opinion)). The Supreme Court continued by
explaining that an appellate court “must ask not which court . . . had the better view of the facts,
but simply whether the court below’s view is clearly wrong.” Id. “[T]he very premise of clear
error review is that there are often ‘two permissible’—because two ‘plausible’—‘views of the
evidence.’ Even assuming [another] court’s findings capture one such view, the District Court’s
No. 17-3076 In re Ohio Execution Protocol Litig. Page 22
assessment may yet represent another. And the permissibility of the District Court’s account is
the only question before [an appellate court].” Id. (quoting Anderson, 470 U.S. at 574).
Finally, the Supreme Court has also instructed appellate courts to err on the side of
allowing trials in cases raising constitutional questions. “If the underlying constitutional
question is close,” the Supreme Court instructs, an appellate court “should uphold the injunction
and remand for trial on the merits.” Ashcroft v. Am. Civil Liberties Union, 542 U.S. at 664–65.
This last instruction is perhaps the most significant for this case. But the majority heeds
neither the instruction to review district court findings of fact deferentially, nor the instruction to
err on the side of allowing trials in cases raising constitutional questions. The majority has
decided to forego a trial on the merits of Plaintiffs’ constitutional claims and to allow the State of
Ohio to execute Plaintiffs without such a trial. More egregiously, the majority has decided to
forego a trial even though the district court, which has the better view of the evidence,
determined that Plaintiffs should have a trial because they are likely to succeed on the merits of
their constitutional claim.
B. Eighth Amendment Baze/Glossip Claim
1. Likelihood of success on the merits
I would affirm the district court’s judgment that Plaintiffs were likely to succeed on the
merits of their Eighth Amendment Baze/Glossip claim, which the district court supported with
factual findings that, first, Plaintiffs established that Ohio’s midazolam three-drug protocol
creates a substantial risk of severe pain and, second, Plaintiffs presented an available alternative
method.
a. Substantial risk of severe pain
Under Glossip, to establish that a method of execution violates the Eighth Amendment,
prisoners must first “establish that the method presents a risk that is ‘sure or very likely to cause
serious illness and needless suffering, and give rise to sufficiently imminent dangers.’ To prevail
on such a claim, ‘there must be a substantial risk of serious harm[.]’” Glossip, 135 S. Ct. at 2737(quoting Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion)) (emphasis in original).
No. 17-3076 In re Ohio Execution Protocol Litig. Page 23
The majority is certainly correct that plaintiffs must meet a “heavy burden” to make the
“rigorous showing” that a method of execution creates a substantial risk of serious harm.
Maj. Op. at 6 (quoting Baze, 553 U.S. at 53). The majority and I disagree about whether the
determination that a method of execution creates a substantial risk of serious harm is a factual
finding reviewed for clear error or a legal conclusion reviewed less deferentially. The majority
characterizes the determination as application of a “legal standard” and reviews it without
deference. Maj. Op. at 5. My view that this determination is a factual finding that must be
reviewed for clear error comes directly from the language of the Supreme Court. In Glossip, the
Supreme Court said that the Oklahoma district court “did not commit clear error when it found
that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its
execution protocol entails a substantial risk of severe pain.” Glossip, 135 S. Ct. at 2731. This
statement is explicit that a district court’s determination as to whether midazolam entails a
substantial risk of severe pain must be reviewed for clear error.
In this case, the magistrate judge—relying on his “superior[] . . . position to make
determinations of credibility” and “experience” in “the determination of fact”—evaluated
evidence from scientific experts, eyewitnesses to executions, and ODRC employees discussing
Ohio’s current execution protocol. Anderson, 470 U.S. at 574. Based on this evidence, the
district court found that Plaintiffs were likely to succeed on their claim that the use of midazolam
as the first drug in a three-drug protocol creates a substantial risk of severe pain. Decision
& Order at 104–05. The district court found “from both the expert opinions and the lay
descriptions comparing executions with a barbiturate as the first drug and midazolam as the first
drug that the drugs do not produce the same effects in those being executed . . . . [T]hose
administered midazolam . . . take longer to die and exhibit different bodily behaviors in the
process.” Id. at 104. Evaluating the evidence presented to it during the hearing, including the
eyewitness testimony and the opposing viewpoints presented by the experts, the district court
“conclude[d] that use of midazolam as the first drug in Ohio’s present three-drug protocol will
create ‘a substantial risk of serious harm.’” Id. at 105.
For several reasons, the district court’s determination was not clearly erroneous. First of
all, the district court did not base its opinion on uncertainty, as the majority asserts. Plaintiffs’
No. 17-3076 In re Ohio Execution Protocol Litig. Page 24
experts testified unequivocally that Ohio’s midazolam three-drug protocol is highly likely to
cause intolerable pain. Id. at 40, 43, 47, 55. The district court was in the position to make
credibility determinations about the competing experts’ testimony, and the district court’s
discussion of the experts’ testimony indicates that it found Plaintiffs’ experts to be more credible
than Defendants’. See Decision & Order at 103–05.
For example, the district court recognized that Defendants’ experts did not agree with
each other about whether midazolam has a ceiling effect, and Dr. Buffington did not appear to
agree with Dr. Antognini that midazolam has analgesic properties (only that it would sedate
someone sufficiently to make them insensate to pain, which is distinct from actually eliminating
pain). Id. at 71–75, 93–94. By contrast, Plaintiffs’ experts were in agreement that midazolam
does not have analgesic properties, and, although he was less adamant, Dr. Bergese generally
agreed with Dr. Stevens that midazolam has a ceiling effect. Id. 31, 87. The specific points of
disagreement between Defendants’ experts support the district court’s determination that
Plaintiffs’ experts were more convincing.
It is also noteworthy that the district court in this case evaluated evidence that was not
available to the Oklahoma district court in Glossip. The district court heard testimony from
eyewitnesses to five executions. Two of those, the execution of Christopher Brooks and the
execution of Ronald Smith, occurred after the Glossip decision. In addition to providing the
district court with information about additional midazolam-involved executions, these recent
executions also shed new light on earlier midazolam-involved executions. In Glossip, the
Supreme Court noted that neither Lockett nor Wood received the dose of midazolam at issue in
the case before it, and that there were problems with the Lockett execution that were not
attributable to the drugs used (namely, “the execution team’s inability to obtain an IV access
site”). Glossip, 135 S. Ct. at 2746. Taking into account these differences, the Supreme Court
said that “[w]hen all of the circumstances are considered, the Lockett and Wood executions have
little probative value for present purposes.” Id. This conclusion may have been reasonable
given the circumstances at the time, but new circumstances entitle a district court to come to a
different conclusion. The Brooks execution, and particularly the Smith execution, in which
Smith coughed, flailed, and heaved for several minutes, cast the problems observed in the
No. 17-3076 In re Ohio Execution Protocol Litig. Page 25
Lockett and Wood executions in a new light. Unlike Lockett and Wood, both Smith and Brooks
were executed using 500 milligrams of midazolam followed by a paralytic drug and potassium
chloride (like Ohio’s current protocol). Like Lockett and Wood, witnesses testified that Smith
and Brooks moved and heaved during their executions. Witnesses’ testimony that Brooks was
heaving and that Smith was heaving, coughing, and flailing could suggest that Lockett’s writhing
and Wood’s gasping were attributable to midazolam’s inability to prevent the pain caused by
paralytic drugs and potassium chloride, rather than to other circumstances.
The district court made the specific finding that these eyewitnesses were credible, even
though many “were from legal practices devoted to representing capital clients.” Id. at 24. The
district court noted that “their testimony was carefully confined to observations rather than
opinions,” in “contrast[] with some press characterizations of some of these executions as
‘botched,’ ‘horrendous,’ ‘barbaric,’ and so forth. These witnesses were carefully professional in
not adding advocatory characterizations to their observations.” Id. at 24–25.
The majority argues that the district court did not offer enough reasoning in support of its
decision. Maj. Op. at 6. I agree that ideally the district court would have offered more reasoning
in support of its findings. But it is clear that the district court’s specific findings were meant to
be read in conjunction with its lengthy discussion of the testimony. And I do not agree that the
district court’s 119-page opinion, which included a discussion of the testimony and specific
findings of fact, did not provide sufficient reasoning to be entitled to the deference that we must
give to district courts’ findings of fact. (The majority recognizes that the district court produced
its opinion under tight timelines, but fails to acknowledge that these timelines were imposed by
the State of Ohio.) In my view, the district court’s finding that “use of midazolam as the first
drug in Ohio’s present three-drug protocol will create ‘a substantial risk of serious harm,’”
Decision & Order at 105, was not clearly erroneous, and we are bound by this finding.
b. Availability of an alternative
To succeed on their Eighth Amendment claim, Plaintiffs must also show that there is “an
alternative that is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial
risk of severe pain.’” Glossip, 135 S. Ct. at 2737 (quoting Baze, 553 U.S. at 52) (alteration in
No. 17-3076 In re Ohio Execution Protocol Litig. Page 26
original). Glossip explicitly states that whether an alternative method of execution is available is
a “factual finding” subject to the “clearly erroneous” standard of review. Glossip, 135 S. Ct. at
2738. Other than defining “availability” as a factual finding, the Supreme Court provides little
guidance as to the definition of “availability.” As the district court observed, “In Baze and
Glossip, the Supreme Court did not attempt to quantify how available the alternative method
must be to qualify.” Decision & Order at 107.
Plaintiffs proposed two alternative execution methods. For different reasons, each of
these alternatives warrants a remand for a trial on the merits. As to the first alternative, a one-
drug protocol using compounded pentobarbital, the district court found that by proposing
compounded pentobarbital, “Plaintiffs have met their burden to identify a sufficiently available
alternative method of execution to satisfy Baze and Glossip.” Decision & Order at 107. Ohio
does not currently have pentobarbital on hand and it cannot purchase pentobarbital to use in
executions directly from drug manufacturers. However, according to the district court, Ohio has
taken key steps toward acquiring compounded pentobarbital, including passing secrecy statutes
“to protect the anonymity of potential suppliers and compounders,” and applying for the import
license necessary to purchase pentobarbital’s active ingredient. Id. This court resolved litigation
over the secrecy statutes and entry of a protective order in Ohio’s favor. See In re: Ohio
Execution Protocol Litig. (Fears v. Kasich), 845 F.3d 231, 240 (6th Cir. 2016); Phillips v.
DeWine, 841 F.3d 405, 420 (6th Cir. 2016). These favorable resolutions facilitate the State’s
access to compounded pentobarbital. The district court also noted that Dr. Buffington, who
helped develop Ohio’s current execution protocol and who testified about the content of an
affidavit he submitted in an Alabama case, “stated in his affidavit in that case that since other
states had been able to procure compounded pentobarbital for their executions, he believed it
could be obtained.” Decision & Order at 95.
Because Defendants’ own expert testified that compounded pentobarbital could be
obtained, because Ohio succeeded in passing secrecy statutes and securing a protective order for
the specific purpose of obtaining compounded pentobarbital, and because Ohio is currently
undertaking the steps necessary to secure compounded pentobarbital, I am not “left with the
definite and firm conviction” that the district court erred when it found that compounded
No. 17-3076 In re Ohio Execution Protocol Litig. Page 27
pentobarbital is an available alternative. Anderson, 470 U.S. at 573 (quoting United States
Gypsum Co., 333 U.S. at 395). I would defer to the district court’s finding that compounded
pentobarbital is available.
For the second alternative, Plaintiffs proposed a two-drug protocol using midazolam and
potassium chloride without a paralytic drug. Having decided that compounded pentobarbital is
an available alternative, the district court did not make a finding as to whether the second
alternative is available, or as to the more difficult question whether the second alternative would
“significantly reduce[] a substantial risk of severe pain.” Glossip, 135 S. Ct. at 2737 (quoting
Baze, 553 U.S. at 52). Particularly if the majority is correct that compounded pentobarbital is not
an available alternative, Plaintiffs are entitled to a finding as to whether the second alternative
satisfies the Baze/Glossip standard. Instead, the majority has determined that Plaintiffs should be
executed with Ohio’s three-drug protocol without a court ever deciding whether their proposed
two-drug protocol would significantly reduce the substantial risk of severe pain.
There may be other possible execution methods that, if given a trial, Plaintiffs could
prove are available and significantly reduce a substantial risk of severe pain. As anyone who
reads the newspaper knows, the nation, and Ohio in particular, is in the midst of a virulent drug-
death epidemic. See, e.g., Kristine Phillips, Drugs Are Killing So Many People in Ohio That
Cold-Storage Trailers Are Being Used As Morgues, Wash. Post (Mar. 16, 2017),
http://wapo.st/2mNjFEp?tid=ss_mail&utm_term=.e29b9f46cfc8 (“As with much of the United
States, Ohio is in the throes of a heroin and opioid epidemic that shows no signs of abating. . . .
The drug epidemic also has caused [Stark] county to spend roughly $75,000 a year in toxicology
tests alone . . . . ‘We’re just spending all kinds of money on lab work because there’s so many
different drugs,’ [Stark County investigator Rick Walters] said.”); Kimiko de Freytas-Tamura,
Amid Opioid Overdoses, Ohio Coroner’s Office Runs Out of Room for Bodies, N.Y. Times
(Feb. 2, 2017), https://nyti.ms/2k0DV2Z (“On Thursday, only two days into February, the
coroner’s office in Dayton, Ohio, had already handled 25 deaths — 18 caused by drug overdoses.
In January, the office processed 145 cases in which the victims’ bodies had been destroyed by
opioids.”); Katharine Q. Seelye et al., Inside a Killer Drug Epidemic: A Look at America’s
Opioid Crisis, N.Y. Times (Jan. 6, 2017), https://nyti.ms/2k21lF0 (“Public health officials have
No. 17-3076 In re Ohio Execution Protocol Litig. Page 28
called the current opioid epidemic the worst drug crisis in American history, killing more than
33,000 people in 2015. Overdose deaths were nearly equal to the number of deaths from car
crashes. In 2015, for the first time, deaths from heroin alone surpassed gun homicides.”);
Courtney Astolfi, Report: Ohio Ground-Zero for Opioid Overdose Deaths, Cleveland.com (Dec.
1, 2016), http://s.cleveland.com/OlL8JFD (“The Buckeye State topped the list of opioid overdose
deaths among all 50 states, racking up 2,106 deaths in 2014.”). Given these reports, there are
obviously multiple drugs that could be used to execute people.
The district court’s findings in this case were not clearly erroneous. The district court did
not clearly err by finding that Ohio’s current three-drug protocol creates a substantial risk of
severe pain, and it did not clearly err by finding that alternative protocols are available. Not only
did the district court not clearly err in its factual finding that compounded pentobarbital is an
available alternative, but there are other possible alternative protocols that no court has ruled on.
Plaintiffs proposed a two-drug protocol, and the district court did not rule on this alternative.
Moreover, there may be other drug protocols that Plaintiffs would propose if given an
opportunity to litigate this case fully. Therefore, Plaintiffs have satisfied the first requirement for
a preliminary injunction by demonstrating a substantial likelihood of success on their Eighth
Amendment claim.
2. Likelihood of irreparable harm, balance of equities, and public interest
Having determined that Plaintiffs failed to show a likelihood of success on the merits of
their Eighth Amendment claim, the majority does not assess whether Plaintiffs have satisfied the
other requirements for a preliminary injunction. Because in my view Plaintiffs did show a
likelihood of success on the merits, I address the other three requirements. Plaintiffs satisfy each
one.
Plaintiffs would suffer irreparable harm if executed by a drug protocol later determined to
be unconstitutional. “The key word in this consideration is irreparable.” Babler, 618 F.3d at523–24 (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). “A plaintiff’s harm from the
denial of a preliminary injunction is irreparable if it is not fully compensable by monetary
damages.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (quoting Certified
No. 17-3076 In re Ohio Execution Protocol Litig. Page 29
Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 550 (6th Cir. 2007)).
Being executed by a method of execution that is later determined to be unconstitutional is
quintessentially an injury that is not fully compensable. Or, as the district court noted, “[t]he
irreparable harm to the named Plaintiffs if temporary injunctive relief is not granted is patent”;
“[w]hether or not Plaintiffs’ claims survive their deaths, the injury would be irreparable.”
Decision & Order at 116.
For the same reason, the balance of the equities favors Plaintiffs. Although “a State
retains a significant interest in meting out a sentence of death in a timely fashion,” Nelson v.
Campbell, 541 U.S. 637, 644 (2004), the harm from a delay in meting out a death sentence is not
an irreparable harm. As a result, balancing the equities counsels in favor of delaying executions
until a full trial on the merits can be held on the method of execution.
Finally, the public interest favors Plaintiffs. The public has an interest in sentences being
carried out, but it also has an interest in ensuring that those sentences are carried out in a
constitutional manner. “[I]t is always in the public interest to prevent violation of a party’s
constitutional rights.” Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty.,
274 F.3d 377, 400 (6th Cir. 2001) (quoting G & V Lounge, Inc. v. Mich. Liquor Control
Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)). As the district court stated, “[o]n balance, the
public interest weighs in favor of granting temporary injunctive relief, but maintaining a fast
track approach to adjudicating Plaintiffs’ claims on the merits.” Decision & Order at 118.
C. Judicial Estoppel
I would also hold that the district court did not err by deciding that Defendants were
judicially estopped from reverting to an execution protocol that includes pancuronium bromide
(a paralytic agent) and potassium chloride (which stops the heart). I begin by reviewing in detail
the facts relevant to Plaintiffs’ judicial-estoppel claim.
Litigation challenging Ohio’s lethal injection protocol commenced in 2004. The first
events relevant to Plaintiffs’ judicial-estoppel claim occurred in 2009. On October 19, 2009, the
district court entered a stay of Kenneth Biros’s execution. R. 965-16 (10/19/2009 Order at 1–4)
(Page ID #34294–97). A trial had been scheduled for November 2, 2009, and Biros’s
No. 17-3076 In re Ohio Execution Protocol Litig. Page 30
execution’s date had been set for December 8, 2009. Id. at 1–2 (Page ID #34294–95). As of
October 19, 2009, there was outstanding discovery, including discovery concerning the failed
attempt to execute Romell Broom and the State’s consideration of a new execution protocol. Id.Because of the outstanding discovery, the district court postponed the trial date and entered a
“stay of [Biros’s] execution.” Id. at 1–3 (Page ID #34294–6). The district court reasoned that
“[g]iven the issues involved and the instruction of the appellate court, Biros is . . . entitled to a
stay affording him time for discovery and to be heard at trial on the merits of his claims.” Id. at
3 (Page ID #34296).
On October 27, 2009, the State filed a Notice of Appeal “from the Court’s Opinion and
Order granting an injunction to intervenor Kenneth Biros, which was filed on October 19, 2009.”
R. 965-18 (Notice of Appeal at 1) (Page ID #34304). Also on October 27, the State filed a
motion asking this court to vacate the district court’s order delaying Biros’s execution, which the
State variously referred to as a stay and a preliminary injunction. R. 965-19 (Defs-Appellants’
Mot. to Vacate Prelim. Inj. Granted to Biros at 1–9) (Page ID #34307–15). In its motion, the
State took issue with the district court making the determination that outstanding discovery
necessitated a stay of execution without considering Biros’s likelihood of success on the merits.
The State argued that “[a] condemned prisoner cannot obtain a stay of execution . . . absent a
finding by the court that the prisoner is likely to succeed on the merits of his claims.” Id. at 6
(Page ID #34312). Because “a party seeking a preliminary injunction must demonstrate, among
other things, a likelihood of success on the merits[,] . . . [w]here a condemned prisoner seeks a
stay of execution to permit litigation of a claim that the state’s method of execution will violate
the Eighth Amendment, the likelihood or lack thereof of the prisoner’s success on the merits is
not only a necessary consideration, but may well be sufficient to resolve the matter.” Id.
On October 29, 2009, the district court issued a second order which, “[i]n light of
Defendants’ characterization of [the district court’s] actions and in an effort to assist the Sixth
Circuit Court of Appeals in considering the appeal, . . . further memorialize[d] the substance of
the October 19, 2009 conference.” R. 966 (10/29/2009 Order at 1) (Page ID #34318). In the
order, the district court noted that Defendants “helped develop, along with Plaintiffs’ counsel,
proposed language to be included in the October 19, 2009 Order. In fact, Defendants’ counsel
No. 17-3076 In re Ohio Execution Protocol Litig. Page 31
asked the Court not to characterize the stay as an injunction and explained that they did not want
the court to make a finding of unconstitutionality in regard to the stay.” Id. at 1–2 (Page ID
#34318–19). The district court surmised that Defendants did not want it to make a finding as to
Biros’s likelihood of success on the merits of his constitutional claims because “[s]uch Rule 65
injunctive relief analysis would have necessitated the Court discussing in detail in a written
decision its review of the numerous deposition transcripts of witnesses involved in the attempted
execution of Romell Broom.” Id. at 2 (Page ID #34319). The court also ordered that “all future
conferences, except those dealing with protected discovery material, shall be held in open court
and on the record” “[t]o avoid creating an incorrect impression of the events of this litigation and
to facilitate clarity as to the parties’ public positions.” Id.
On November 13, 2009, the State announced its intention to change its execution
protocol effective no later than November 30, 2009. In its News Release, the State, through
ODRC Director Terry Collins, said, “‘The previous method of execution included a three-drug
protocol applied intravenously. The first change to the execution procedure includes the
adoption of a one-drug protocol, using thiopental sodium alone, applied intravenously.
Pancuronium bromide and potassium chloride will no longer be used as a part of the process.’”
R. 966-1 (11/13/2009 ODRC News Release) (Page ID #34322).
On the same day, the State filed in the district court a motion for summary judgment. In
its motion, the State argued that, as a result of changes to the execution protocol, “Defendants
have negated all of Plaintiffs’ claims” and “Plaintiffs’ challenges to defendants’ previous ‘three-
drug protocol’ are moot.” R. 966-2 (Defs.’ Second Mot. Summ. J. with Req. Expedited Briefing
Sched. at 4) (Page ID #34328). The State explained,
It is readily apparent here that the recent changes to defendants’ execution
procedures have rendered moot plaintiffs’ constitutional challenges to the “three-
drug protocol” previously used by defendants to execute condemned prisoners.
The issues presented by plaintiffs’ complaints stem from the alleged risk of severe
pain which could be caused by the use of pancuronium bromide and potassium
chloride, the second and third drugs in the so-called “three-drug protocol,” in the
event that the first drug, thiopental sodium, is not properly administered. In view
of the new procedures’ elimination of the second and third drugs, the issues
presented in plaintiffs’ suits are no longer actionable. . . . Moreover, there is no
possibility here that the allegedly unconstitutional conduct will reoccur, or that
No. 17-3076 In re Ohio Execution Protocol Litig. Page 32
there is any lingering effects of previous allegedly unconstitutional conduct.
There is absolutely no reason to believe that defendants will reinstate the previous
“three-drug protocol” if the plaintiffs’ suits were dismissed. And, more
importantly, if defendants execute plaintiffs using the revised procedures,
defendants cannot “go back to their old ways” and execute plaintiffs using the
prior procedures.
Id. at 5 (Page ID #34329) (emphasis in original). The State attached to its summary-judgment
motion an affidavit of Director Collins, in which he swore, “[G]oing forward, pancuronium
bromide no longer will be used as part of the lethal injection process. Also, potassium chloride
no longer will be used as part of that process.” R. 966-3 (Collins Aff. at ¶ 6) (Page ID #34335).
In the summary-judgment motion, the State repeatedly argued that the claims of all
Plaintiffs were moot as a result of the change to the execution protocol, R. 966-2 (Defs.’ Second
Mot. Summ. J. with Req. Expedited Briefing Sched. at 5) (Page ID #34329), and Collins’s
affidavit stated that pancuronium bromide and potassium chloride would not be used “going
forward,” R. 966-3 (Collins Aff. at ¶ 6) (Page ID #34335). The State sought judgment as a
matter of law on the claims of all plaintiffs, not only Biros.
On November 16, 2009, the State filed in this court a reply in support of its October 27
motion to vacate the stay. R. 966-4 (Defs-Appellants’ Mem. Reply to Biros’ Mem. in Opp’n to
Defs’ Mot. Vacate District Ct.’s Stay of Biros’ Execution, Sche’d for Dec. 8, 2009, and Defs’
Mem. in Opp. to Biros’ Mot. Dismiss Defs’ Appeal at 1) (Page ID #34338). In the reply, the
State argued that “Biros’s lawsuit is moot.” Id. at 7 (Page ID #34344). The State explained that
Collins, “has directed changes in the procedures used to carry out the execution of condemned
prisoners. The changes include the discontinuation of the use of pancuronium bromide and
potassium chloride in the execution process.” Id. The State argued that as a result of this
change, “Biros’ suit no longer presents a case or controversey [sic], as the ‘three-drug protocol’
he challenges is no longer used.” Id.
Unlike in the district court summary-judgment motion, the State’s reply in our court
argued that “Biros’ suit” was moot, but did not address claims of other Plaintiffs. This focus on
Biros is in keeping with the narrowness of that appeal, in which the only issue was the stay of
Biros’s execution, not the underlying merits of Plaintiffs’ challenge or any other Plaintiffs’
No. 17-3076 In re Ohio Execution Protocol Litig. Page 33
individual procedural claims. However, although the State did not mention the other Plaintiffs in
the body of the reply, the State did attach its summary-judgment motion from the district court as
an exhibit to the reply. R. 966-4 (Defs.’ Second Mot. Summ. J. with Req. Expedited Briefing
Sched., filed as Ex. A to Defs-Appellants’ Mem. Reply to Biros’ Mem. in Opp’n to Defs’ Mot.
Vacate District Ct.’s Stay of Biros’ Execution, Sche’d for Dec. 8, 2009, and Defs’ Mem. in Opp.
to Biros’ Mot. Dismiss Defs’ Appeal) (Page ID #34348–59). It also addressed Biros’s “suit,” as
opposed to his claims, which may suggest that it had the entire lawsuit in mind, which involved
multiple plaintiffs. As noted above, the summary-judgment motion argued that the claims of all
the plaintiffs were moot, and sought judgment as a matter of law on all claims.
On November 25, 2009, a panel of this court vacated the district court’s stay of Biros’s
execution. The panel held that “the district court’s stay order must be vacated because any
challenge to Ohio’s three-drug execution protocol is now moot.” Cooey v. Strickland, 588 F.3d
921, 923 (6th Cir. 2009). The panel explained that, “the question at hand is whether Ohio will
use the old procedure, or the new one, in executing Biros.” Id. In response to this question, the
panel maintained that “[t]here is no basis in the record or for that matter in common sense for
assuming that the State will do anything other than what it has told us in court filings and what it
has told the public at large: it has changed its execution protocol, and it intends to apply the
substantially modified protocol to Biros.” Id.On December 4, 2009, this court denied rehearing en banc. The concurrence with denial
of rehearing en banc posited that, “At a minimum, the new protocol ‘likely’ moots the old
challenge, and that is enough to create a likelihood-of-success problem for Biros when it comes
to premising a request for a stay on orders related to a different protocol.” Cooey v. Strickland,
588 F.3d 924, 925 (6th Cir. 2009) (Sutton, J., concurring in denial of reh’g en banc). Dissents
from denial of rehearing en banc pointed out that nothing prevented the State from going back to
the prior execution protocol, which, they explained, fatally undermined the holding that the
challenge was moot. Id. at 925–26 (Moore, J., dissenting from denial of reh’g en banc)
(“Although there is little indication that the State will continue to use the initially challenged
three-drug cocktail now that it has developed a new procedure, in analyzing whether Biros’s
claim is moot, we must consider whether anything would prevent the State from doing so. . . .
No. 17-3076 In re Ohio Execution Protocol Litig. Page 34
Although we have no reason to doubt Ohio’s sincerity, determining mootness based on a
litigant’s statement that it has no reason to resume the challenged activity, no matter how earnest,
is not part of the mootness analysis.”); see also id. at 928 (Martin, J., dissenting).
Neither the panel opinion nor the concurrence with denial of rehearing en banc clarified
the breadth of the court’s holding. It is not clear whether the panel held that the challenge to
Ohio’s lethal injection protocol was moot as to Biros or was moot as to all of the Plaintiffs. It is
unclear, first, because in this court the State was ambiguous about whether it was arguing that the
claims were moot as to Biros or all Plaintiffs. It is unclear, second, because neither the panel
opinion nor the concurrence with the denial of rehearing en banc explicitly stated whether the
claims were moot as to Biros or all Plaintiffs.
Subsequently, Biros’s execution was again set for December 8, 2009, and Biros
challenged the November 30, 2009 one-drug execution protocol. On December 7, 2009, this
court considered Biros’s challenge to the new protocol, and, affirming the district court, declined
to stay his execution. Cooey v. Strickland, 589 F.3d 210, 221, 234 (6th Cir. 2009). The State
executed Biros on December 8, 2009.
On December 9, 2009, the district court held a hearing. At that hearing, the district judge
“suggest[ed] that all of these motions, as a result of the November 30, 2009, new protocol, are
moot and should be withdrawn. I’m talking about the defendants’, the plaintiffs’ everything; that
the plaintiffs should amend all of their complaints based upon the new protocol and we proceed
from that standpoint.” R. 966-10 (12/9/2009 Hr’g Tr. at 25–26) (Page ID #34453–54). The
district court added, “I actually can’t demand that you withdraw something, and wouldn’t do
that, but I am suggesting that almost everything that’s been filed in this case up until now is
moot.” Id. at 26 (Page ID #34456). Addressing this court’s decision on mootness, the district
court added, “And I’m not going to get into an argument over mootness like the Court of
Appeals has done recently. I’m not going to get into that mess, as I’m sure Judge Sutton would
not like to get back into that mess.” Id. Instead, he explained, “I’m trying to suggest a way in
which the record can get cleaned up and where we present arguments, present with new
arguments, that have anything to do with the new protocol. It just seems to me to be the better
way in which to proceed in this case, but, again, it’s up to you guys how we decide this.” Id.
No. 17-3076 In re Ohio Execution Protocol Litig. Page 35
After some discussion, attorneys for both sides agreed to withdraw their pending motions, with
the understanding that Plaintiffs would file amended complaints challenging the November 30,
2009 protocol. Defendants agreed not to assert a statute-of-limitations defense to Plaintiffs’
amended complaints, and the district court granted leave to Plaintiffs to amend their complaints.
Id. at 43, 46 (Page ID #34471, 34474).
Litigation proceeded, and so did executions. After the execution of Kenneth Biros on
December 8, 2009, Ohio executed an additional twenty people until the State halted executions
after the Dennis McGuire execution in 2014. However, prior to the McGuire execution, the State
replaced the November 30, 2009 protocol with a protocol providing for a single-injection of
midazolam and hydromorphone. See R. 323 (10/10/2013 Ohio DRC Execution Protocol, 01-
COM-11 at 1–19) (Page ID #9568–86). McGuire’s execution using the October 10, 2013
protocol prompted questions about midazolam and caused Ohio again to change its protocol, this
time to the midazolam protocol at issue in this case.
The State decided that it would switch to the current midazolam three-drug protocol
months before it revealed this switch to Plaintiffs, the district court, or the public. See R. 941
(Hr’g Tr. at 800–01) (Page ID #31862–63). Director Mohr admitted that it was a strategic
decision to conceal the switch. Id. at 803 (Page ID #31865).
The “rule[] known as judicial estoppel” provides that “[w]here a party assumes a certain
position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter,
simply because his interests have changed, assume a contrary position, especially if it be to the
prejudice of the party who has acquiesced in the position formerly taken by him.” New
Hampshire v. Maine, 532 U.S. 742, 749 (2001). “We review de novo a district court’s decision
regarding the application of judicial estoppel.” Javery v. Lucent Techs., Inc., 741 F.3d 686, 697
(6th Cir. 2014).1 Three factors “typically inform the decision whether to apply the [judicial
1
“In several recent cases, this Court has ‘questioned the continuing viability of the de novo standard for
judicial estoppel, noting the Supreme Court’s characterization of the doctrine as an equitable remedy ‘invoked by
the court at its discretion’ and recognizing that the ‘majority of federal courts’ review for abuse of discretion.”
Javery, 741 F.3d at 697 (quoting Kimberlin v. Dollar General Corp., 520 F. App’x 312, 313 n.1 (6th Cir. 2013)).
Because the en banc court is not bound by prior panel decisions stating that the appropriate standard of review is de
novo, the en banc court should consider the continuing validity of the de novo standard in light of the considerations
pointed out in Javery.
No. 17-3076 In re Ohio Execution Protocol Litig. Page 36
estoppel] doctrine.” New Hampshire v. Maine, 532 U.S. at 750. “First, a party’s later position
must be ‘clearly inconsistent’ with its earlier position.” Id. (quoting United States v. Hook,
195 F.3d 299, 306 (7th Cir. 1999)). “Second, courts regularly inquire whether the party has
succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance
of an inconsistent position in a later proceeding would create ‘the perception that either the first
or the second court was misled.’” Id. (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599
(6th Cir. 1982)). “A third consideration is whether the party seeking to assert an inconsistent
position would derive an unfair advantage or impose an unfair detriment on the opposing party if
not estopped.” Id. at 751.
The first factor for judicial estoppel is satisfied. The State’s earlier position is “clearly
inconsistent” with its current position. Id. at 750. The State represented to the district court and
this court that it would no longer use pancuronium bromide or potassium chloride for executions.
The Director of the ODRC swore that “going forward, pancuronium bromide no longer will be
used as part of the lethal injection process” and that “potassium chloride no longer will be used
as part of that process.” R. 966-3 (Collins Aff. at ¶ 6) (Page ID #34335). In its motion for
summary judgment, the State represented to the district court not only that it had “eliminate[ed]
. . . the second and third drugs” but that “there is no possibility here that the allegedly
unconstitutional conduct will reoccur.” R. 966-2 (Defs.’ Second Mot. Summ. J. with Req.
Expedited Briefing Sched. at 5) (Page ID #34329). The State’s motion explicitly stated that
“[t]here is absolutely no reason to believe that defendants will reinstate the previous ‘three-drug
protocol.’” Id. The State’s motion also argued that its decision to stop using pancuronium
bromide and potassium chloride mooted Plaintiffs’ claims. At the December 9, 2009 hearing,
the State reasserted its promise that it would stop using pancuronium bromide and potassium
chloride, and said that because of this promise, “[t]o the extent that the other motions are based
on the old protocol, we think it’s appropriate that they be dismissed as moot or withdrawn.”
R. 966-10 (12/9/2009 Hr’g Tr. at 43) (Page ID #34471).
The State’s representations that there was “no possibility” of reverting to a three-drug
protocol using pancuronium bromide or potassium chloride and Director Collins’s sworn
statement that the State would not use these two drugs “going forward” are inconsistent with the
No. 17-3076 In re Ohio Execution Protocol Litig. Page 37
State’s current position. R. 966-3 (Collins Aff. at ¶ 6) (Page ID #34335); R. 966-2 (Defs.’
Second Mot. Summ. J. with Req. Expedited Briefing Sched. at 5) (Page ID #34329). The State’s
current execution protocol, which it is seeking to use in executing Otte, Phillips, and Tibbetts,
includes pancuronium bromide and potassium chloride. R. 667-1 (Ohio DRC Execution
Protocol, 01-COM-11 at 2) (Page ID #19813). By repeatedly representing that it would no
longer use pancuronium bromide or potassium chloride in executions but now attempting to
execute condemned inmates with these very drugs, the State has taken directly contradictory
positions.
The second factor, whether the State succeeded in persuading a court to accept its earlier
position that it would not use pancuronium bromide or potassium chloride in executions, is the
most difficult. See New Hampshire v. Maine, 532 U.S. at 750–51. As noted above, this court
did not make clear whether its November 25, 2009 decision held that the claims of all Plaintiffs
were moot or only Biros’s claims were moot. At the December 9, 2009 hearing, the district court
expressed its view that all of the motions pending as of December 9, 2009 were moot, but the
district court also stated that it was not going to get into the “mess” over mootness, and urged the
parties to withdraw their pending motions as a way “the record can get cleaned up.” R. 966-10
(12/9/2009 Hr’g Tr. at 26) (Page ID #34454). The State withdrew the November 13, 2009
motion for summary judgment that argued mootness, but it is not clear whether the State
withdrew that motion because the motion’s argument had already been successful or because the
district court was not going to entertain the motion’s argument.
If this court held that the claims of all Plaintiffs were moot, then the State’s mootness
argument was successful, regardless of whether the State withdrew the motion. Similarly, if the
district court held that all Plaintiffs’ claims were moot, then the State’s mootness argument was
successful, notwithstanding the fact that as a procedural matter the State withdrew the motion.
On the other hand, if this court’s holding applied only to Biros and the district court prompted
the parties to withdraw their motions because of practical concerns rather than a determination
that the claims of all Plaintiffs were moot, then the State’s mootness argument was not
successful.
No. 17-3076 In re Ohio Execution Protocol Litig. Page 38
Ultimately, it appears that the State succeeded in persuading at least the district court, if
not also this court, that the claims of all the Plaintiffs were moot. At the December 9 hearing, the
district court repeatedly emphasized its view that all the motions pertaining to the old protocol
were moot, and encouraged the parties to withdraw their motions for precisely that reason, even
if it offered practical reasons as well. R. 966-10 (12/9/2009 Hr’g Tr. at 25–26) (Page ID
#34453–54). The State also expressed its view that Plaintiffs should withdraw their motions
because they were moot. Id. at 43 (Page ID #34471). Based on the statements of the district
court and the State, and after some hesitation, Plaintiffs withdrew their challenge to the three-
drug protocol. Id. at 42, 46 (Page ID #34470, 34474).
Significantly, the Plaintiffs’ withdrawal of their challenge to the old protocol cleared the
way for the State to proceed with executions. After Biros’s execution, the State executed twenty
other individuals until it halted executions in the wake of the McGuire execution. The fact that
Ohio no longer had to litigate the constitutionality of its three-drug protocol and was able to
proceed with executions beginning in December 2009 using other protocols indicates that its
mootness argument succeeded. Resuming executions was the State’s ultimate goal in the
litigation, and it achieved that goal by affirmatively stating that it was no longer going to use
pancuronium bromide or potassium chloride “going forward.” R. 966-3 (Collins Aff. at ¶ 6)
(Page ID #34335). If the State were now allowed to revert to using pancuronium bromide or
potassium chloride, it would create the perception that the district court, and perhaps this court,
had been misled about the abandonment of pancuronium bromide and potassium chloride.
Accordingly, the second factor is satisfied.
The third factor, “whether the party seeking to assert an inconsistent position would
derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped,”
is also satisfied. New Hampshire v. Maine, 532 U.S. at 751. Earlier in this litigation, by
representing that there was “no possibility” that it would use pancuronium bromide or potassium
chloride “going forward,” the State avoided having to litigate the constitutionality of an
execution protocol that relied on those drugs. R. 966-3 (Collins Aff. at ¶ 6) (Page ID #34335);
R. 966-2 (Defs.’ Second Mot. Summ. J. with Req. Expedited Briefing Sched. at 5) (Page ID
#34329). Given the possibility that the State would revert to an execution protocol that relies on
No. 17-3076 In re Ohio Execution Protocol Litig. Page 39
pancuronium bromide and potassium chloride—as State officials and attorneys represented that
the State would not do, but as the State has now done—Plaintiffs were entitled to continue
litigating the constitutionality of those drugs.
In 2009, by making the unnecessarily broad and, we now know, false representations that
there was “no possibility” that the State would use pancuronium bromide and potassium chloride
“going forward,” the State prevented Plaintiffs from having a trial on their claim that an
execution protocol including those drugs is unconstitutional. R. 966-3 (Collins Aff. at ¶ 6) (Page
ID #34335); R. 966-2 (Defs.’ Second Mot. Summ. J. with Req. Expedited Briefing Sched. at 5)
(Page ID #34329). In 2016, the State concealed for months its intention to switch from a one-
drug to a three-drug protocol, and the State has admitted that this was a strategic decision. Since
revealing its current midazolam three-drug protocol, the State has pushed for this litigation to
proceed quickly. Now, the State argues that Plaintiffs are not entitled to trial on their
constitutional claims, including their claim that a two-drug protocol that does not include a
paralytic is an available alternative that will significantly reduce a substantial risk of severe pain.
The upshot of the State’s behavior—in making unequivocal representations that it would not use
pancuronium bromide or potassium chloride in executions, seeking to moot Plaintiffs’ case based
on those representations, acting in contravention of those representations, and now seeking to
prevent Plaintiffs from having a trial—has been to thwart Plaintiffs’ efforts to litigate the
constitutionality of Ohio’s use of a three-drug protocol or the question whether a two-drug
protocol is an available alternative that significantly reduces a substantial risk of severe pain.
This court’s acquiescence to the State’s behavior—by refusing to estop the State from using
pancuronium bromide or potassium chloride—means that the State has succeeded in thwarting
the Plaintiffs’ efforts try their constitutional claim before being executed.
The majority’s defense of the State’s behavior as based on changed circumstances is
unconvincing. Even if Ohio changed its position because of changed circumstances, the change
in circumstances had no bearing on Ohio’s decision to represent to two federal courts that the
State would no longer use pancuronium bromide or potassium chloride. Nothing required Ohio
to make the sweeping assertions that there was “no possibility” it would use potassium chloride
“going forward,” rather than making a narrower representation to which it could adhere. R. 966-
No. 17-3076 In re Ohio Execution Protocol Litig. Page 40
3 (Collins Aff. at ¶ 6) (Page ID #34335); R. 966-2 (Defs.’ Second Mot. Summ. J. with Req.
Expedited Briefing Sched. at 5) (Page ID #34329).
Additionally, even if changed circumstances mean that Ohio can no longer obtain
barbiturates, the unavailability of barbiturates does not require Ohio to revert to pancuronium
bromide and potassium chloride, as opposed to using a different drug or combination of drugs.
Ohio’s previous representations—including representations made under oath, see R. 966-3
(Collins Aff. at ¶ 6) (Page ID #34335)—prevent it from reverting to pancuronium bromide and
potassium chloride. Given these representations, if barbiturates are not available to Ohio, Ohio
should rely on an execution protocol not involving pancuronium bromide or potassium chloride.
Allowing the State to reverse course and use pancuronium bromide and potassium
chloride in executions not only unfairly advantages the State, it also undermines the integrity of
this litigation. The majority asserts that “if any gamesmanship led us to this pass, it was not
gamesmanship by the State.” Maj. Op. at 15. Whether or not characterized as gamesmanship,
there no question that the State has publicly taken inconsistent positions, concealed facts from
Plaintiffs to gain strategic advantage, and attempted at every turn to deny Plaintiffs an
opportunity to try their constitutional claims. The purpose of judicial estoppel is to ensure that
litigants will not be rewarded for such behavior. The majority has ensured that the State will be
rewarded. Therefore, reviewing the issue de novo, I come to the same conclusion as the district
court. I would hold that the State of Ohio is judicially estopped from using pancuronium
bromide or potassium chloride for executions.
* * *
Plaintiffs should not be executed before a trial on the constitutionality of Ohio’s
execution method. The district court did not err by finding that Plaintiffs satisfied the
requirements for a preliminary injunction or that the State of Ohio should be judicially estopped
from using execution drugs it swore that it would no longer use. I respectfully dissent.
No. 17-3076 In re Ohio Execution Protocol Litig. Page 41
_______________________________________
CONCURRING IN THE DISSENT
_______________________________________
JANE B. STRANCH, Circuit Judge, concurring in the dissent. I concur in Judge
Moore’s dissenting opinion because its legal analysis applied to the record before us fully
supports and explains where the majority opinion errs. I write separately to address other
concerns that intertwine with our merits determination. The majority raises one such
fundamental concern by recounting the crimes that underlie the death penalty sentences of
prisoners involved in this execution protocol challenge. The recitation of these crimes reveals
what they are—horrific. But even in the face of such crimes and their powerful provocation to
respond in kind, our American legal system and current experience with the death penalty
provide reasons to stay the hand of those implementing this lethal injection protocol so that the
court may evaluate whether the latest protocol complies with the requirements of our
Constitution.
In her dissent from the denial of certiorari in Arthur v. Dunn, an Alabama case addressing
the same issues raised here, Justice Sotomayor explains why the Eighth Amendment requires a
“national conversation”—a continuing dialogue between the legislatures and the courts on the
meaning of the Amendment’s prohibition on cruel and unusual punishments. 137 S. Ct. 725, 731
(2017) (Sotomayor, J., dissenting). She reminds us that the meaning of this prohibition is
derived from “the evolving standards of decency that mark the progress of a maturing society.”
Id. (quoting Kennedy v. Louisana, 554 U.S. 407, 419 (2008)).
This case contains a conversation that implicates that standard. The majority begins and
ends its argument with the conclusion that “death-penalty opponents successfully prevented Ohio
(along with other states) from obtaining the drugs necessary to use the one-drug protocol.”
Majority at 14; see also id. at 3. These framing comments grow from an argument made by
various states that death-penalty opponents have employed improper means to prevent sale of the
protocol drugs to states. But that argument ignores the possibility that our national conversation
simply may have resulted in an evolution in the standard of decency upon which the Eighth
Amendment relies. The refusal of drug companies to sell execution drugs may well evidence a
No. 17-3076 In re Ohio Execution Protocol Litig. Page 42
recognition of changing societal attitudes toward the death penalty and a conclusion—whether
based on principle, profit motivation, or both—that the business in which drug companies
engage, selling drugs that improve health and preserve life, is not consistent with selling drugs
that are used to put people to death.
This dialogue about the constitutional prohibition on cruel and unusual punishment is
closely intertwined with our ongoing national conversation about the American criminal justice
system. Woven through both is disquiet about issues such as punishing the innocent,
discrimination on the basis of race, and effective deterrence of crime. These concerns are
present throughout the criminal justice processes from arrest, to trial, to sentencing, to appeals,
and to the final chapter in death penalty litigation such as this.
Such concerns, along with myriad others, have a role in public opinion that impacts “the
evolving standards of decency” governing the Eighth Amendment’s prohibition on cruel and
unusual punishment. See Kennedy, 554 U.S. at 419. A 2015 survey found that a majority of
Americans prefer life without parole over the death penalty for people convicted of murder.
Robert P. Jones et al., Public Religion Research Institute, Anxiety, Nostalgia, and Mistrust:
Findings from the 2015 American Values Survey 47 (2015), http://www.prri.org/wp-
content/uploads/2015/11/PRRI-AVS-2015-1.pdf. This matches polling in 2016 finding that
public support for the death penalty has dropped below 50%, to its lowest level in 45 years.
Baxter Oliphant, Support for death penalty lowest in more than four decades, Pew Research
Center: Fact Tank (Sept. 29, 2016), http://www.pewresearch.org/fact-tank/2016/09/29/support-
for-death-penalty-lowest-in-more-than-four-decades. Our opinion as a people on whether the
death penalty is acceptable is a mark of the progress of our maturing society.
I fully agree with the analysis in the dissenting opinion and believe that affirming the
grant of a preliminary injunction would be the correct outcome based on governing precedent
and the factual record before us. In light of the majority’s determinations, I also write to stress
my agreement with Justice Sotomayor that the Eighth Amendment requires a continuing national
discussion—a civil, thoughtful conversation among the American people, legislatures, and the
courts—on the meaning of the Amendment’s prohibition on cruel and unusual punishment.