In re: Ohio Execution Protocol.
Donald Morgan, et al., Defendants-Appellants. Angelo Fears, et al., Plaintiffs, Gary Otte; Ronald Phillips; Raymond Tibbetts, Plaintiffs-Appellees,
Argued: June 15, 2017
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:11-cv-01016-Michael R.
Merz, Magistrate Judge.
E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellants.
E. Haddad, SIDLEY AUSTIN LLP, Los Angeles, California, for
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
E. 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.
Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS,
ROGERS, SUTTON, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH,
DONALD, and THAPAR, Circuit Judges. [*]
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
KETHLEDGE, Circuit Judge.
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).
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 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.
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.
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.
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
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.
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
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.
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 plaintiffs had demonstrated a
likelihood of success on their claims, and stayed the
plaintiffs' executions. This appeal followed.
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
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 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.
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
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.
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.
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.
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.
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.
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 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.
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.
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.
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
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.
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
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.
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
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.
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
"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.
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 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 ...