Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Ohio Execution Protocol Litigation

United States District Court, S.D. Ohio, Eastern Division, Columbus

August 15, 2019

In re OHIO EXECUTION PROTOCOL LITIGATION, This relates to Plaintiff Cleveland Jackson

          Edmund A. Sargus, Jr., Chief Judge



         This capital § 1983 case is before the Court on Plaintiff Cleveland Jackson's Motion to Strike Expert Report and Any Testimony of Dr. Charles Kokes or, in the Alternative, Motion in Limine to Exclude Some or All Testimony of Dr. Kokes (ECF No. 2322). Defendants oppose the Motion (ECF No. 2341). Dr. Kokes has been designated as an expert witness to be presented by Defendants at the hearing on Plaintiff Jackson's Motion for Preliminary Injunction (Witness List, ECF No. 2295).

         As required by the Court's Scheduling Order (ECF No. 2206), Defendants have filed an expert report from Dr. Kokes in the form of a declaration under penalty of perjury under 28 U.S.C. § 1746 (“Kokes Report, ” ECF Nos. 2289, 2290, 2107). The Kokes Report reveals that Charles Kokes is a medical doctor (M.D.) who is board certified in anatomic and forensic pathology (Report, ECF No. 2289, PageID 110981). He is employed by the Arkansas State Crime Laboratory as the Arkansas State Medical Examiner. He also serves as laboratory director for Pinpoint Testing, LLC, a private forensic toxicology laboratory which specializes in laboratory consulting and lists the provision of expert testimony as an offered service.[1] In the course of his thirty-four year career in forensic pathology, he has performed over 10, 000 full autopsies including those on seven inmates executed by lethal injection. Id.

         In the immediately preceding preliminary injunction matter in this consolidated case, the Court made the following findings of fact

[I]t is certain or very likely that a 500 mg IV-injected dose of midazolam cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with the injection of the paralytic drug or potassium chloride or the severe pain and needless suffering that is certain or very likely to be caused by the pulmonary edema which is very likely to be caused directly by the midazolam. This finding of fact is independent of the hypothesis that it is the acidic state of injected midazolam that causes pulmonary edema.

In re Ohio Execution Protocol Litig. (Henness), 2019 U.S. Dist. LEXIS 8200, *230-31, 2019 WL244488 (S.D. Ohio Jan. 14, 2019), on appeal at 6th Cir. No. 19-3064. In his Report, Dr. Kokes offers the opinion that these findings “were based on medical testimony and evidence that was incomplete and/or misinformed.” (Kokes Report, ECF No. 2289, PageID 110982, ¶ 4.) He explains that the purpose of his report is to “present [ ] the following information and opinions so as to provide the Court with a more complete understanding of the medical facts which are relevant to the issues in this case.” Id.

         Kokes believes that, within the meaning of Fed. R.Evid. 702 and 703 he is “an expert in the field of forensic pathology and such fields as are necessarily related to forensic pathology, including physiology, pharmacology, general medicine and scientific research.” Id. PageID 110983 at ¶ 7.

         In preparing his report, Kokes avers that he has, at the request of Ohio Assistant Attorney General Anne Berry Strait, examined reports “filed in these proceedings by pathologist Mark Edgar, anesthesiologist Dr. David Lubarsky, pulmonologist Dr. Matthew Exline, and pharmacologists Dr. Craig Stevens and Dr. David Greenblatt.” Id. at ¶ 8, PageID 110983-84. Because he does not reference the dates of these reports and because some of those named have not been listed as witnesses for the Cleveland Jackson hearing and the date for disclosing expert witnesses has passed, the Court infers that Dr. Kokes is referring to the reports of these witnesses filed in the Henness matter.

         Although Kokes agrees these experts

are eminently qualified in their respective fields, . . . none of them have [sic] an educational background or work experience which indicates routine analysis of how and why individuals die. In my analysis, the plaintiff's experts demonstrate a lack of professional familiarity with fatal drug toxicity and its terminal effects on core body functions. As result, they have made erroneous assumptions which undermine their arguments regarding the toxic effects of midazolam solution.

Id. at ¶ 11, PageID 110985.

         Plaintiff offers three bases for excluding Kokes as an expert witness. First Jackson says Kokes is “essentially a proxy for the Defendants in this case” because his own employer, the State of Arkansas, uses an execution protocol materially indistinguishable from Ohio's which he has a strong interest in defending. Second, Kokes's conclusions are unsupported by relevant facts and data and are thus not reliable science. Third, Kokes offers opinion well beyond his area of expertise, which should therefore be excluded (ECF No. 2322, PageID 113139).

         Defendants respond that Kokes is not a “partisan” and has no financial stake in the outcome of this litigation because, after all “this case is not about money.” (ECF No. 2341). As to the foundations for Kokes's opinions, Defendants claim they are based on “actual real world experience” as “a board-certified forensic pathologist who has performed hundreds of autopsies on persons who have died of drug overdoses or other toxic insults.” They are claimed to be far more scientific than those of Plaintiff's expert forensic pathologist, Dr. Mark Edgar.[2] Id. at PageID 114323 (emphasis in original).

         Applicable Legal Standards

         Fed. R. Evid. 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.