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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 document relates to: Plaintiff Cleveland Jackson

          Edmund A. Sargus, Jr., Chief Judge

          DECISION AND ORDER GRANTING MOTION IN LIMINE TO EXCLUDE EXPERT REPORT AND TESTIMONY OF STEVE YUN

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This case is before the Court on Plaintiff Cleveland Jackson's Motion in Limine to Exclude Testimony of Steve C. Yun, M.D. (“Yun Motion, ” ECF No. 2321). Defendants have filed a Response in opposition (ECF No. 2344). For the reasons set forth below, the Yun Motion is GRANTED.

         QUALIFICATIONS AND OPINIONS

         Dr. Yun has been a Board-certified anesthesiologist since 2001, has been in private practice as an anesthesiologist since 2000, and is an active physician at Saddleback Memorial Medical Center (Yun Report, ECF No. 2296[1], PageID 111807), although most of his work is in the field of pediatric dentistry (https://www.dentalanesthesiamd.com/, last accessed Aug. 14, 2019). Dr. Yun states that, through his work, he has administered midazolam “tens of thousands of times[, ]” and he has testified as an expert in a case “related to the use of midazolam for lethal injection in Florida.” (Yun Report, ECF No. 2296, PageID 111807, 111809, citing State of Florida v. Correll, Orange County (Fla.) No. CR85-3550 (2015)). He has been a clinical professor at the Western University School of Medicine since 2015, and a lecturer at the Loma Linda School of Dentistry since 2017. Id. at PageID 111818. While Dr. Yun has conducted several clinical trials, his curriculum vitae lists only one peer-reviewed publication: “Practice Guidelines for Adult Sedation and Analgesia, ” a co-authored book chapter appearing in Shobha Malviya, M.D., Norah N. Naughton M.D., Kevin K. Tremper M.D., Ph.D., eds., Sedation and Analgesia for Diagnostic and Therapeutic Procedures (1st ed. 2003). Id. at PageID 111819-20, Dr. Yun disagrees with the Court's findings that midazolam “cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain” of the second and third drugs, or of the pulmonary edema from midazolam, and “that it is the acidic state of injected midazolam that causes pulmonary edema[.]” (Yun Report, ECF No. 2296, PageID 111808). As to the first finding, he reiterates the undisputed point that midazolam can be used as the sole medication for a variety of procedures (e.g., insertion of an endotracheal tube), and as the sole induction agent for anesthesia. Id. at PageID 110810-11. He claims that midazolam's induction of amnesia and a deep hypnotic state within 30-60 seconds of injection means that an inmate will not experience pain from the paralytic or the potassium chloride. Id. at PageID 111811-12. Further, he avers, without citation, that execution team members will be able, “using medically appropriate methods, to determine whether the condemned inmate has been rendered sufficiently sedated as to be unaware of any pain produced by administration of the paralytic drug and the potassium chloride.” Id. at PageID 111812.

         Dr. Yun states that Jackson's argument “that the acidic nature of midazolam cause[s] pulmonary edema is illogical.” (Yun Report, ECF No. 2292 PageID 111813). If, as Jackson's expert Mark A. Edgar, M.D., hypothesizes, it is the acidic nature that “causes venous irritation and damage to the pulmonary vasculature[, ]” then it “should also cause painful, venous irritation in an awake person when it is first injected into the vein.” Yet, none of the eyewitness reports cited by Dr. Edgar or Matthew C. Exline, M.D., another of Jackson's experts, reflects any such irritation. Id. Nor do any of the autopsy reports show “venous extravasation [or] infiltration at IV site[, ]” which one would expect if the acidic nature of the midazolam was damaging the pulmonary vasculature. “In actuality, ” he opines, “any acidic component of the midazolam would rapidly be buffered by the person's blood as it mixes with venous blood in the right chambers of the heart.” Id.

         Finally, Dr. Yun disagrees with Jackson's argument that the movements described by eyewitnesses -- “lurching, straining, heavy breathing, gasping, coughing, etc.[, ]” -- are caused by the inmates responding to painful stimuli or pulmonary edema, as these can occur even when an individual is resting pain-free after receiving midazolam (Yun Report, ECF No. 2296, PageID 111814). He claims that these movements can happen just as easily when an inmate has been administered opioids, such as propofol, and “are not sufficient proof of consciousness or a purposeful response to pain.” Id. Dr. Yun also claims that midazolam is so potent at the dosage used in the execution that, by itself it can induce fatal levels of unconsciousness or respiratory depression, but, in that process, also elevates carbon dioxide levels in the blood. Those elevated levels may, in turn, cause some of the described movements. Id. at PageID 111812, 111814.

         LEGAL STANDARDS

         Federal Rule of Evidence 702 sets forth the requirements for the admissibility of expert testimony as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the ...

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