1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE WESTERN DISTRICT OF OKLAHOMA 3 4 CHARLES F. WARNER, et al., 5 Plaintiffs, 6 vs. 7 KEVIN J. GROSS, et al., 8 9 Case No. CIV-14-665-F Defendants. ----------------------------- 10 11 12 TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING 13 BEFORE THE HONORABLE STEPHEN P. FRIOT 14 UNITED STATES DISTRICT JUDGE 15 16 DECEMBER 17, 18 AND 19, 2014 9:00 A.M. 17 18 19 20 21 22 23 24 25 Proceedings recorded by mechanical stenography; transcript produced by computer-aided transcription. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 1 629 Honor. 2 THE COURT: 3 Okay. You may proceed. And as soon as anybody -- I'm going to go closer to 3:00, 4 unless somebody requests a recess before 3:00. 5 request is made, that's what we'll do. 6 ROSWELL LEE EVANS, 7 (WITNESS SWORN.) 8 9 And if that DIRECT EXAMINATION BY MR. HADDEN: 10 Q. Good afternoon, Doctor. 11 A. Hi. 12 Q. Doctor, if you would, briefly just go over your -- some of 13 your highlights of your CV. 14 he's read it, so we don't need everything. 15 highlights so we can -- 16 THE COURT: 17 THE WITNESS: 18 THE COURT REPORTER: 19 The judge has already indicated But just give the For the record, let's have his full name. My full name is Roswell Lee Evans, Jr. Could you spell your first name, please. 20 THE WITNESS: 21 THE COURT REPORTER: 22 THE WITNESS: 23 Q. 24 your CV, Doctor. 25 A. Evans, E-V-A-N-S. First name? Roswell, R-O-S-W-E-L-L. (BY MR. HADDEN) And if you would, just briefly go over Okay. I have a pharmacy degree at a bachelor's level. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 630 1 Q. Okay. I'm sorry. Just keep going. 2 A. Okay. A doctor of pharmacy degree from the University of 3 Tennessee, a residency from the Medical University of South 4 Carolina. 5 Health Sciences, began a specialty in psychiatry. 6 went to the University of Missouri, Kansas City, as a member of 7 the Department of Psychiatry and the School of Pharmacy. 8 Eventually developed a post-graduate residency and fellowship 9 training and research program. I joined the faculty at UT, University of Tennessee Left UT, Became department head. 10 Subsequently left and went to Auburn as the Dean of the School 11 of Pharmacy. 12 Q. And is that where you are currently employed? 13 A. I am currently there, yes. 14 Q. Doctor, as part of your training and experience, are you 15 limited to the normal range of research and activities that 16 most PharmDs are? 17 A. Yes. 18 Q. Do you also do additional things beyond what a normal 19 PharmD might do? 20 A. 21 certainly been involved in activities that were a little bit 22 more progressive than most practitioners. 23 today, however. 24 Q. 25 from time to time where drugs were being introduced? I'm a board-certified psychiatric pharmacist, so I have Okay. That's changing Have you been present during medical procedures Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 631 1 A. Yes. 2 Q. Have you been present during some where there was 3 induction of anesthesia? 4 A. 5 very common for me. 6 personally than I've seen. 7 Q. 8 to your report, which is -- 9 A. I have a copy. 10 Q. -- Plaintiffs' 34. 11 Yes. Okay. But that was typically -- not something that was I've probably experienced more of that And if you would, Doctor, let's go ahead and turn Do you have it there, Doctor, in front of you? 12 A. Yes. 13 Q. Okay. 14 MR. HADDEN: It's Defendants' 34, Your Honor, if you 15 have a copy. Actually, we also gave you one like this. 16 don't know which one you have. 17 Q. 18 just briefly describe for the Court from your report what 19 midazolam is. 20 A. 21 primarily used as a drug to induce anesthesia, to actually 22 facilitate minor procedures and decreases apprehension, also 23 decreases memory of the event. 24 Q. 25 used with an analgesic? (BY MR. HADDEN) All right. I Okay, Doctor, if you would, Midazolam is a short-acting benzodiazepine. The drug is And, Doctor, is -- to your knowledge, is midazolam always Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 1 A. 2 somebody to be sedated or quick procedures that are not 3 necessarily terribly invasive, it could be used by itself. 4 Medical procedures typically use it. 5 something like a colonoscopy, you would see it used in 6 combination with a narcotic. 7 Q. 8 describe some of the procedures where you may use midazolam 9 without an analgesic. 10 A. No, not always. 632 Okay. In clinical procedures that just require I mean, even for Are there procedures, though -- if you would, Well, oftentimes they're used in dental procedures. 11 THE COURT: 12 THE WITNESS: In what? Dental procedures. Extractions. And 13 in combination, even there some times with gas or other agents, 14 but oftentimes by itself the -- they're typically fairly minor 15 medical procedures that are -- where the drug is used. 16 Q. 17 section on midazolam, you talk about therapeutic doses. 18 see that, about halfway down, it starts, "The therapeutic 19 dose"? 20 A. Yes. 21 Q. If you would, just read that sentence for me, please. 22 A. A therapeutic dose as a preanesthetic for adults, is 1.5 23 to 3.5 milligrams for a 70-kilogram adult less than 60 years of 24 age with a maximum recommended dose of 5 milligrams 25 intravenously. (BY MR. HADDEN) Okay. Doctor, in your report and in your Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 Do you LEE EVANS - DIRECT BY MR. HADDEN 633 1 Q. Doctor, what do you mean by "therapeutic dose"? 2 A. Well, a "therapeutic dose" is primarily a dose that's used 3 to achieve a specific outcome, as in sedation, and/or 4 developing amnestic properties for -- to prevent people from 5 remembering the procedure, even to the point where they don't 6 remember things that might even be somewhat painful. 7 Q. 8 non-therapeutic purpose, you could use a great deal more than 9 what you have listed here, couldn't you? Okay. So if you were going to use it for a 10 A. Absolutely. 11 Q. Now, in that last line of that paragraph, Doctor, if you 12 would, read that where it starts, "Fatalities." 13 A. 14 from .04 to.07 milligram per kilogram." 15 Q. 16 from, Doctor? 17 A. Actually, that came from the manufacturer's product sheet. 18 Q. Are you aware of any studies or reports that indicate that 19 there have been some deaths from the use of midazolam? 20 A. 21 the country from midazolam, the use of midazolam. 22 Q. 23 much higher doses? 24 A. 25 were used in therapeutic doses. "Fatalities have occurred from midazolam and doses ranging All right. And where did you extract that information There have been at least 80 case reports of fatalities in Do you know whether those were at therapeutic doses or No, that part is unclear. I think most of the time they Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN Okay. 634 1 Q. Now, Doctor, midazolam, can it be utilized to take 2 someone to an unconscious state? 3 A. Yes, it can. 4 Q. And if a proper IV access is obtained and there is an 5 infusion of midazolam, could you achieve that unconscious state 6 without the use of an analgesic? 7 A. Yes. 8 Q. And if you achieve that unconscious state, would an 9 analgesic be necessary? 10 A. No. 11 Q. So if someone were to criticize and say that Chart D of 12 Attachment D of the Oklahoma protocol is ineffective because it 13 does not include an analgesic, would you agree with that? 14 A. No, I would not. 15 Q. In your opinion, Doctor, if proper IV access is obtained 16 and 500 milligrams of midazolam is introduced intravenously, 17 will that subject become unconscious at some point? 18 A. Yes. 19 Q. If you also couple that with a wait of five minutes and a 20 consciousness check by a medical professional, are you assuring 21 that they are, indeed, unconscious before proceeding? 22 A. Yes. 23 Q. Now, I'd like to direct you, then, to that next paragraph 24 there that starts with, "The dose." 25 that paragraph or -- I'm sorry, not the paragraph. If you would, just read Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 Just that LEE EVANS - DIRECT BY MR. HADDEN 635 1 sentence. 2 A. 3 the State of Oklahoma's execution protocol is 500 milligrams 4 IV." 5 Q. And go ahead, if you would, read that one next sentence. 6 A. "This dose is at least 100 times the normal therapeutic 7 dose." 8 Q. 9 the therapeutic dose, Doctor? "The dose indicated in Chart C and D of Attachments D of And how did you determine it was at least 100 times over 10 A. Well, the normal therapeutic dose is anywhere up to 11 3-and-a-half milligrams at one time. 12 1-and-a-half to 3-and-a-half, so it's a pretty good dose. 13 Q. 14 100 times, could it just be that they have a different 15 definition of precisely what a "therapeutic dose" is? 16 A. Right. 17 Q. If you would look down, then, to the sentence that begins, 18 "Midazolam is not an analgesic." 19 A. Right. 20 Q. Go ahead and read that one, if you would. 21 A. "Midazolam is not an analgesic, however, the dose 22 administered per Chart B will render the person unconscious and 23 insensate during the remainder of the procedure." 24 Q. 25 this one says "Chart B." Okay. And anywhere from So if someone were to differ with you that it's not Now, Doctor, I don't know if you have the copy I do, but Does that mean Chart D? Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 636 1 A. Did I say "D" (sic)? I need new glasses. 2 Q. It may be a typo. 3 we're on the right track. 4 A. I think it's a typo. 5 Q. Okay. 6 that statement? 7 A. Yes. 8 Q. So if someone was critical and said that that is an untrue 9 statement because there is a "ceiling effect," would you agree I'm not sure. It's Chart D. I just want to make sure So as we're talking about there, do you stand by 10 with that statement? 11 A. No. 12 Q. And why is that? 13 A. The "ceiling effect" that's been referred to is an effect 14 specifically on the spinal cord, and there are studies to show 15 that, you know, you can eliminate a significant portion of an 16 inhaled anesthetic with the use of midazolam, but you can't 17 completely eliminate it, and that's really to maintain a plane 18 of surgical -- a surgical plane, and that's all at a spinal 19 cord level. 20 What we're talking about here is at the reticular 21 activating system, the part of the brain that controls 22 respiration, so we're basically shutting down respiration 23 centers. 24 Q. 25 GABA receptors. Okay. There is no ceiling effect at that level. Now, Dr. Lubarsky testified the other day about Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 1 2 THE COURT: 637 When you say "at that level," what level are you referring to? 3 THE WITNESS: At that part of the brain, the higher 4 level of brain. 5 central nervous system. 6 activating system is the part of the brain that controls 7 respiration. 8 that system. 9 So the spinal cord is a lower part of the And so this dose is essentially shutting down THE COURT: 10 The brain itself, the reticular THE WITNESS: "This dose" being? 500 milligrams of midazolam. 11 Q. 12 Dr. Lubarsky about GABA receptors. 13 A. GABA receptors? 14 Q. Could you just explain briefly, how does that -- how does 15 midazolam interact with GABA receptors? 16 A. 17 And that's generating us -- that's what generates the clinical 18 effect or the pharmacological effect from midazolam and all the 19 other benzodiazepine drugs, as well as some other agents as 20 well. 21 (BY MR. HADDEN) Doctor, there's some discussion today from Do you know what those are? Yes. Midazolam attaches to GABA receptors, inhibiting GABA. GABA is a -- GABA receptors are found across the entire 22 body, so there are GABA receptors on the spinal column and 23 there's GABA receptors in the brain. 24 25 And so what we're doing -- GABA, for instance, is responsible -- GABA receptors are responsible for anxiety Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 638 1 disorders. So when you basically inhibit GABA, you basically 2 begin to control those kind of symptoms. 3 Q. 4 even in a human body? 5 A. No. 6 Q. Can you even take a guess? 7 millions, billions? 8 A. In the millions. 9 Q. So Dr. Lubarsky today had a somewhat simplified but And does anyone reliably know how many GABA receptors are I mean, are we in the What are we in? 10 seemingly effective representation of a building with doors and 11 people holding the doors open. 12 explanation before? 13 A. No. 14 Q. Okay. 15 little bit wrong, but the way I recall it was simply that you 16 have a number of doors and you're not going to get any more 17 effect if a hundred people hold those doors open than if two 18 people do as people come in. 19 at all? 20 A. 21 substances trying to attach to GABA receptors. 22 certain parts of the body, that may be a major issue, but we're 23 talking about instead of three or four doors, we're talking 24 about lots and lots of doors, so it's -- it's an interesting 25 analogy, but the numbers are quite large. Have you heard that kind of Well, I'm paraphrasing here, and I may have it a Is that effective representation What he's talking about is the competitive nature of Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 You know, in LEE EVANS - DIRECT BY MR. HADDEN 639 1 Q. So if we were to use his representation and were picturing 2 a courthouse, we should instead be picturing maybe a building 3 the length of the United States with doors along it? 4 A. Or at least all the doors in the city of Oklahoma City. 5 Q. Okay. 6 you said it goes beyond just affecting the spinal column; is 7 that true? 8 A. That's true. 9 Q. And what other parts of the central nervous system does it Now, Doctor, in terms of the effects of midazolam, 10 affect? 11 A. Yes. 12 Q. And are there GABA receptors along the entire length of 13 the central nervous system? 14 A. Yes. 15 Q. And does it affect all of those? 16 A. Yes, it does. 17 Q. Okay. 18 that. 19 Does it affect all of them? And if you effectively -- I guess I should rephrase If you affect enough GABA receptors along the length of 20 that central nervous system, will you obtain a level of 21 unconsciousness? 22 A. 23 nervous system -- higher levels of the central nervous system, 24 the brain itself. 25 paralyzing the brain. Well, yes, you will. And especially at the central You're basically -- in many ways, you're It no longer functions. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 Especially the LEE EVANS - DIRECT BY MR. HADDEN 640 1 respiratory centers. 2 Q. But would it also paralyze the pain centers? 3 A. It may not paralyze the brains -- the pain centers in the 4 brain, but the individual would (sic) be able to respond to 5 that, would not be aware of it. 6 Q. 7 earlier? 8 A. So this has some amnesic qualities, I think you said It does have amnestic qualities, yes. 9 10 THE COURT: You say the individual would or wouldn't be able to respond to it? 11 THE WITNESS: 12 THE COURT: 13 THE WITNESS: Would not be able to respond. Okay. Essentially we're achieving a state of 14 unconsciousness very quickly. 15 Q. 16 would not sense the pain? 17 A. Would not sense the pain, no. 18 Q. And, Doctor, have you heard of the paradoxical effect 19 regarding midazolam before? 20 A. Yes. 21 Q. There was some commentary over the last few days that it's 22 not reflected in your report anywhere. 23 that? 24 A. 25 particular circumstance. (BY MR. HADDEN) And just to be clear, you're saying they Is there a reason for Well, I don't think it's a significant issue in this The doses that we're seeing, you Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 641 1 really don't see a paradoxical effect. 2 It's probably less than 1 percent of low dose, therapeutic 3 dose, that you would see anyone that would have a paradoxical 4 effect, which is a pretty low percentage for any side effect. 5 Q. 6 paradoxical effect, Doctor? 7 A. 8 that I'm aware of. 9 Q. Okay. And when you say -- are there studies about the No, there are case reports. Okay. You do at lower doses. There are really no studies In these case studies, again, what are you talking 10 about, low doses? 11 A. Low therapeutic doses, right. 12 Q. So if you previously testified therapeutic doses in the -- 13 A. One-and-a-half to 3-and-a-half. 14 Q. So we're talking in that 1-and-a-half milligram range? 15 A. Right. 16 Are we talking about low therapeutic doses? I should add, though, that that's also a very slow 17 administration rate. 18 Q. 19 case in Florida? 20 A. I did. 21 Q. Did Dr. Lubarsky testify in that case? 22 A. Yes, he did. 23 Q. Was that protocol involving the same protocol as Method D 24 in Oklahoma's current protocol? 25 A. Okay. Dr. Evans, you previously testified in the Chavez Yes. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 642 1 Q. And was that ultimately found constitutional? 2 A. Yes. 3 Q. All right. 4 at your report on page 2. 5 some ultimate determinations on pentobarbital and on sodium 6 thiopental. 7 Doctor, let's look back, if we could, please, You have some commentary there and If you would, just read the last sentence under 8 "pentobarbital," please. 9 A. "When the drugs administered in accordance with Chart A 10 will lead to toxicity resulting in cardiopulmonary collapse." 11 Q. And is that still your opinion today, Doctor? 12 A. Yes. 13 Q. Then look down, if you would, to Section 3 and the last 14 sentence of that one as well. 15 THE COURT: 16 MR. HADDEN: 17 THE COURT: 18 I'm sorry. You were looking in paragraph 2 on the second page of your report; is that right? 19 20 Wait, wait, wait. MR. HADDEN: Yes, Your Honor. I've just asked him to read the last paragraph of the Section 2. 21 THE COURT: 22 Okay. Very good. Proceed. 23 Q. (BY MR. HADDEN) And then, if you would, the last sentence 24 of Section 3 as well. 25 A. "At this dose and rate of injection, cardiopulmonary Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 643 1 arrest will occur." 2 Q. 3 those are what class of drugs? 4 A. Barbiturates. 5 Q. Okay. 6 about paralytic agents? 7 A. Yes. 8 Q. Now, Doctor, in that section, you have discussion of three 9 different agents and a chart. Now, those two drugs, pentobarbital and sodium thiopental, Let's move on, please, to Section 5, which you talk And I did want to ask you 10 first: Why did you select these three separate particular 11 drugs? 12 A. 13 They're non-polarizing paralytic agents. 14 they're equivalent in terms of the way they work. 15 Q. So what is the difference between them, Doctor? 16 A. The difference tends to be duration and recovery time. 17 For instance, on rocuronium bromide, recovery time is much 18 shorter, 20 to 30 minutes, in comparison to pancuronium 19 bromide, which is recovery time at 120 to 180. 20 important if you are doing surgical procedures and somebody is 21 going into recovery. 22 Q. 23 a dose for someone, the items you have under "dose" is how they 24 would calculate it? 25 A. Well, they're ones that are referred to in the protocol. Okay. And essentially That's In terms of dosage, Doctor, if one was calculating Yes. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 644 1 Q. So as I'm looking at those, it looks like pancuronium and 2 vecuronium, you need slightly more than you do for rocuronium;, 3 is that correct? 4 A. Right. 5 Q. Now, when you examined Chart D of the execution protocol, 6 do you believe that the amount specified in Chart D is 7 sufficient to function as a paralytic? 8 A. 9 effect. Yes, it's 20 times what you actually need to get an 10 Q. Okay. 11 A. That's true. 12 Q. So if you use the same dosage in terms of milligrams, you 13 get the same effect no matter which one you chose? 14 A. Yes. 15 Q. Looking on, Doctor, to Section 6, potassium chloride? 16 A. Yes. 17 Q. Actually, let's look at the last -- the next page, the 18 last line in that. 19 start there at Chart D. 20 A. 21 to be administered intravenously as rapidly as possible. 22 dose is 24 times that that is recommended over a one-hour 23 period. 24 Q. 25 And the same for the rocuronium, would that be -- And just -- let's see, just go ahead and That may be the -- Chart D calls for 240 milliequivalents potassium chloride The This dose will induce cardiac arrest. Okay. So if the intent -THE COURT: Excuse me just a minute. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 Just for the LEE EVANS - DIRECT BY MR. HADDEN 1 record. 645 You referred to 240 milliequivalents? 2 THE WITNESS: 3 THE COURT: 4 THE WITNESS: 5 THE COURT: Yes. That's what the "mEq" stands for? Right. Proceed. 6 Q. (BY MR. HADDEN) Just if you would, jut briefly, what is 7 the expression "mEq"? 8 A. It's basically a measure of ion, the ion potassium itself. 9 Q. And is that a normal way of expressing a dosage of 10 potassium chloride? 11 A. 12 electrolytes. 13 Q. 14 called for in Chart D is sufficient to cause cardiac arrest in 15 the offender? 16 A. Yes. 17 Q. Doctor, in Item 7 you also have a section on involuntarily 18 moments. 19 A. Yes. 20 Q. Have you, in fact, read some reports regarding involuntary 21 moments? 22 A. 23 24 25 Electrolytes, yes. Okay. Normal way of expressing So is it your testimony that that -- the dosage Do you see that? Yes. MS. KONRAD: Objection. Just for the record, restating the objection based on the motion in limine we filed. THE COURT: Very well. That's understood. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 1 646 Proceed. 2 Q. 3 regarding involuntary movements? 4 A. Yes. 5 Q. And after reading those, what conclusions have you drawn? 6 A. Well, I think the primary conclusion about involuntary 7 movements is the fact that when you begin to shut off the 8 oxygen supply, you're going to get some involuntary movements 9 because the body is beginning to, if you will, adjust and react 10 to that, so I think any time there is a hypoxemia or low oxygen 11 levels, you could begin to see involuntary movements. 12 (BY MR. HADDEN) Have you read some research reports So those things have been described in the literature for 13 some time anecdotally and there's at least one study who is 14 looking at it with -- that's mentioned here and that's Saposnik 15 study. 16 Q. 17 we're specifically talking about someone going through a death 18 process, as opposed to just being anesthetized for a medical 19 procedure, correct? 20 A. Right. 21 Q. Isn't that similar to what's intended with an execution 22 process, Doctor? 23 A. Yes, it is. 24 Q. Moving on, Doctor, for Item 8, about pain, if you would 25 look at that, please. Okay. So when we're talking about involuntary movements, Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 1 A. Yes. 2 Q. Go ahead and read that first sentence, if you would, 3 please. 4 A. 5 question causes pain upon injection." 6 Q. 7 Doctor? 8 itself? 9 A. 647 "Excluding potassium chloride, none of the drugs in Now, specifically, what are you talking about there, Are you talking about the drug or the injection No, the drug itself as it's being injected, potassium 10 chloride is a fairly caustic drug, and so when it's injected, 11 it can cause some inflammation and pain. 12 Q. 13 pain associated with that? 14 A. There's no pain associated with the paralytic. 15 Q. And with the midazolam, there's not pain associated with 16 that? 17 A. There's no pain associated with midazolam either. 18 Q. And go ahead, if you would, read that second line for us, 19 Doctor. 20 A. 21 or midazolam are used in amounts specified in Attachment D, the 22 subject quickly reaches unconscious and unresponsive state and 23 would not react to painful stimuli." 24 Q. And how did you come to that conclusion, Doctor? 25 A. It's essentially that you have shut down the brain Okay. But in terms of the paralytic, there is not any "When high-dose pentobarbital, thiopental, hydromorphone Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 648 1 entirely and it's basically not responding to afferent 2 stimuli. 3 achieved effect of 500 milligrams of midazolam or one of these 4 other substances, you're really not going to see the pain 5 piece. 6 procedure where you're administering a very large dose of this 7 drug very rapidly. 8 Q. 9 beginning at, "Even so." And so I think with that kind of dose and the This is particularly in the event that -- or with a Go ahead, then, Doctor, if you would, read that last part, 10 A. "Even so, the proper administration of 500 milligrams of 11 midazolam, as specified in Chart D, make it a virtual certainty 12 that any individual will be at a sufficient level of 13 unconsciousness to resist the noxious stimuli which could occur 14 from the application of the second and third drugs in the 15 chart." 16 Q. 17 the second and third drugs in the chart, Doctor, in your 18 opinion, would that be alleviated by the use of the midazolam, 19 as specified in Chart D, a wait of five minutes and a 20 consciousness check by a medical professional? 21 A. 22 stimuli. 23 Q. 24 proper administration, are you presupposing a -- obtaining 25 proper IV access? Okay. Yes. So to the extent there is a noxious stimuli from I think that would prevent the reaction, the painful Now, Doctor, in that line that you just read about the Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 649 1 A. Yes. 2 Q. So if proper IV access is achieved, that statement in your 3 opinion would be true? 4 A. Yes. 5 Q. One more thing, Doctor. 6 In terms of paragraph 7 and 8 taken slightly together, in 7 your opinion, based upon the studies that you have read, if you 8 were to see involuntary movement, such as were described in 9 this research study you cite there, is that necessarily 10 indicative of a subject feeling pain? 11 A. Not necessarily, no. 12 Q. Doctor, there was a -- 13 THE COURT: 14 MR. HADDEN: 15 THE COURT: How much more do you have on direct? 16 MR. HADDEN: Maybe 15, 20 minutes, Your Honor. 17 18 How much do you lack on direct? I'm sorry? Maybe we want to go ahead and take a break for the -THE COURT: We'll take our mid-afternoon break at 19 this time. We'll resume at 3:30. 20 situation, it may be slightly after 3:30, but we'll shoot for 21 resuming at 3:30. 22 Court will be in recess. 23 (RECESS HAD.) 24 THE COURT: 25 MR. HADDEN: Because of another Mr. Hadden, you may continue. Thank you, Your Honor. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 650 1 Q. (BY MR. HADDEN) Doctor, Dr. Sasich testified yesterday 2 about a report that he cited in his expert report on perception 3 of pain. 4 A. Which one was it? 5 Q. I'm sorry, it's footnote -- 6 A. Four? 7 Q. Do you have his report somewhere there, Doctor? 8 A. No, I don't. 9 Q. Plaintiffs' 77. Are you familiar with that report? Unless it's -Okay. It's on the monitor there, 10 Doctor. 11 A. Oh, thank you. 12 Q. If we can just go to page 4 -- no, the next one, please. 13 Down at the bottom, Footnote 3. 14 A. Yes. 15 Q. Are you somewhat familiar with that report, Doctor? 16 A. Yes, I am. 17 Q. Okay. 18 is about. 19 A. 20 the article itself, was a dog study in which there was a -- an 21 attempt to determine if the midazolam could substitute for 22 inhaled anesthesia. 23 Q. And you said it was done on dogs? 24 A. Yes. 25 Q. Do you know where that study was done? If you just could briefly explain what that report The Frolich study was a -- I believe, without looking at Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - DIRECT BY MR. HADDEN 651 1 A. If I'm remembering the study correctly. 2 Q. Okay. 3 A. Where it was done? 4 Q. Yes. 5 A. I think the study was actually done at University of -- 6 UAV in Alabama. 7 Q. 8 you aware of or familiar with that study, Doctor? 9 A. Yes. 10 Q. Okay. 11 A. That publication was a general review of benzos in the use 12 of anesthesiology. 13 Q. 14 does that support his comment there about the ceiling effect? 15 A. 16 that actually does not support the -- a ceiling effect. 17 refers to -- eventually it refers back to an '88 article that 18 was done looking at a ceiling effect. 19 study I just cited that's not the one that the other author, 20 Frolich, did. 21 Q. Okay. 22 A. But this one -- the '88 study was a study looking at 23 substitution of midazolam for inhaled anesthesia. 24 Q. 25 Dr. Sasich. Okay. Okay. Do you know where that study was done? And then if you look down at Footnote 4 there, are And in your opinion, Doctor, does that -- Report 4, There is one sentence that mentions the ceiling effect and Okay. It And I think that's the Doctor, there was some criticism of drugs.com by What's your knowledge of that source? Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 652 1 A. Well, drugs.com is -- really a tertiary resource that is a 2 combination of materials pulled from some of the most 3 outstanding references in the country that have been around for 4 50-plus years, one being the American Society -- I mean, 5 American Hospital Formulary Service, Facts & Comparisons, a 6 number of other routine very reliable resources, and so it's -- 7 the professional version of that is pretty useful information 8 and it really does outline -- in this case, these medications 9 have been around long enough that most of the things that are 10 there are things that everybody knows. 11 Q. 12 well-known, as you're saying, it is reliable in your opinion? 13 A. Yes. 14 Q. Doctor, just one final question for you. 15 Okay. Doctor, so as a source for the medications that are In your opinion, would Chart D of Attachment D of the 16 Department of Corrections' policy that you reviewed, in your 17 opinion, does that carry a substantial likelihood of severe 18 pain and suffering if applied correctly? 19 A. Not if it's applied correctly, no. 20 MR. HADDEN: 21 THE COURT: 22 Cross-examination. CROSS-EXAMINATION 23 BY MS. KONRAD: 24 Q. 25 No further questions, Your Honor. Good afternoon, Dr. Evans. I'd like to turn your attention now to the screen here. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 653 1 A. Yes. 2 Q. You just testified regarding a Footnote 3 -- 3 A. Right. 4 Q. -- that was cited in Dr. Sasich's report. 5 study called the Effect of Sedation on Pain Perception, and you 6 just indicated that that was a dog study; is that correct? 7 A. 8 I'm very familiar with -- I'm familiar this article, I just 9 didn't have the article in front of me. Yes. And I corrected myself. And it was a That wasn't the dog study. 10 Q. Okay. So this is -- was a human-based study, correct? 11 A. Yes, it was. 12 Q. Is midazolam FDA-approved as a sole drug to produce and 13 maintain anesthesia in surgical proceedings? 14 A. No. 15 Q. Can you cite any specific data or studies that support 16 your opinion that 500 milligrams will render someone 17 unconscious and insensate to the noxious stimuli presented by 18 the second and third drug in the lethal-injection protocol in 19 Oklahoma? 20 A. 21 could be done administering that much medication, midazolam, to 22 anybody. 23 effect. 24 We're talking about inducing a toxic reaction. 25 Q. It was a human-based study. There are no studies that have been done and probably So this is essentially an extrapolation from a toxic We really are not talking about a clinical effect. And what do you mean by "toxic reaction"? Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 654 1 A. In this case, that much drug, alone, would cause a person 2 to die as a result of respiratory arrest, so it's more than 3 enough drug to make that happen. 4 Q. 5 to die from 500 milligrams of midazolam? 6 A. By itself? 7 Q. Yes. 8 A. Less than an hour. 9 Q. And what data do you have to support that? 10 A. The data that I have in that regard is the pharmacological 11 impact of midazolam in the respiratory centers of the brain, 12 which are very immediate. 13 crosses the blood-brain barrier very quickly, so we would see a 14 full effect of that drug very soon after administration 15 intravenously. 16 Q. 17 500 milligrams of midazolam being administered? 18 A. 19 minutes. 20 Q. And whether it's administered intramuscular or IV? 21 A. No, IV. 22 Q. And I want to turn your attention to your report, which -- 23 do you have that in front of you, Dr. Evans? 24 A. I do. 25 Q. You mention that fatalities have occurred from midazolam And in your opinion, how long would that take for somebody More like probably 30 minutes. The drug is highly soluble and And how soon would you anticipate seeing the effects of 500 milligrams, you would see an impact in three to five Much slower from an IM perspective. I do. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 655 1 in doses ranging from .04 to .07 milligrams per kilogram. 2 A. Yes. 3 Q. And I'm not sure if I understood where you are getting 4 that data from. 5 A. 6 drug, so in their technical reports, you will see this referred 7 to. 8 Q. 9 you talking about? It's -- the data is reported by the manufacturer of the And when you say "the manufacturer of the drug," who are 10 A. The -- well, it's not Hospira, it's another generic 11 manufacturer. 12 Q. And have you attached this to your report? 13 A. I think it was included in materials that I shared it with 14 AG's office. 15 Q. 16 referring to? 17 A. Yes. 18 Q. And you have in front of you your report. 19 those attachments in front of you as well? 20 A. I didn't pull Hospira's fact sheet. That's it. Is that what -- the Material Data Safety Sheet that you're Yes. Do you have No, I do not. 21 MS. KONRAD: 22 THE COURT: 23 THE WITNESS: 24 (indicating)? 25 Q. May I approach, Your Honor? You may. Are you talking about this (BY MS. KONRAD) So if you will turn to Exhibit 34 and Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 1 Bates Number 6556. 2 A. 3 656 I'll see if I can find it first. Okay. I think I'm there. 4 Q. And could you please point to me the page where you got 5 that data from? 6 A. 7 intravenous was 71 milligram per kilogram. 8 toxic dose in children, intravenous .14 milligram per kilogram. 9 Q. Section 10 -- 11, excuse me. The TD low for man Lowest published And toxic dose in this material data sheet means death, 10 means fatality? 11 A. Yes. 12 Q. And how do you know that? 13 A. Well, that's the typical implication for a toxic dose. 14 mean, you would not otherwise use any other end point in this 15 case. 16 been reported throughout the literature, actually. 17 Q. 18 page. 19 A. 20 once it's approved, sell this medication. 21 Q. And so who gets this Material Safety Data Sheet? 22 A. It's available to the public. 23 Web. 24 Q. 25 that's required to be at the manufacturer of the drug, at that I So this is the -- this is the kind of thing that has And I just want to turn your attention back to the first What is the purpose of the material data sheet? Material data sheet is required by the FDA in order to, You can pull it up on the It's also available to prescribers. So is this -- this isn't a Material Safety Data Sheet Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 657 1 company? 2 A. Wait a minute. 3 Q. So -- 4 A. The manufacturer would actually put this data together, so 5 it's their sheet. 6 Q. But is it for -- what purpose is the data sheet for? 7 A. Well, I think it primarily shows that it's equivalent to 8 another medication, another manufacturer, or the original 9 manufacturer of midazolam. Say that again. 10 Q. And so is this posted at the manufacturing plant for the 11 -- because these are made pursuant to OSHA or FDA or -- 12 A. It's the FDA. 13 Q. It's FDA? 14 A. Yeah, FDA. 15 plant. 16 Q. 17 Sheet -- 18 A. Sure. 19 Q. -- it talks about first-aid measures? 20 A. Right. 21 Q. And who would that be for? 22 A. It would be for anyone who had been exposed to the drug 23 and was having symptoms of toxicity. 24 Q. 25 information, the lowest published toxic dose that "toxic" means So, yes, it would be available within the And if you look on page 2 of that Material Safety Data And so it's your opinion that the toxicological Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 658 1 fatal? 2 A. Yes. 3 Q. And I'd like to look, if you could, turn back to the first 4 page of your report. 5 second to the last sentence of the last paragraph on page 1, 6 you mention that the lowest dose resulting in human death, 7 according to the manufacturer's Material Safety Data Sheet, is 8 .071 milligram per kilogram. 9 A. 10 The last sentence -- or I'm sorry. The Is that accurate? I'm on my second page. Read that sentence again, please, and make sure we're in 11 the same place. 12 Q. 13 page of your report that says, "The lowest dose resulting in 14 human deaths, according to the manufacturer's Material Safety 15 Data Sheet," which we were just looking at, "is .071 milligram 16 per kilogram intravenously." 17 A. Oh, I see. 18 Q. And it's on the screen in front of you. 19 A. Thank you. 20 Q. Uh-huh. 21 A. Now, your question was: 22 Q. Based on the Material Safety Data Sheet that we were just 23 looking at. 24 A. Yeah, should be, yes. 25 Q. And if the material data sheet that we just looked at on Uh-huh. It's the second to the last sentence on the first You and I are on different pages. Is this correct? Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 659 1 page 4 says this toxic dose, which you indicate represents 2 death, is 71 milligrams per kilogram, is your report incorrect? 3 A. 4 reference that Material Safety Data Sheet. 5 milligrams. 6 Q. 7 where you said fatalities have occurred from midazolam in doses 8 ranging from .04 to .07 milligrams per kilogram, is that 9 accurate? Yes, it is wrong, according to that, because it does It should be 71 So in the earlier sentence that we were talking about, 10 A. Yes. 11 Q. And what are you basing that opinion on? 12 A. That is coming from -- that is coming from some of the 13 resources that are -- that's available in drugs.com. 14 Q. 15 indicated that the fatalities that have occurred from midazolam 16 came from the Material Safety Data Sheet. 17 they come from drugs.com. 18 So I thought you had just told me that you had -- you had Now you're saying So I'm just trying to be clear about your opinion, because 19 this is a contested opinion, Dr. Evans. 20 A. Sure. 21 Q. So I want to make sure that we're getting the correct 22 data. 23 A. 24 range of .04 to .07 milligram per kilogram with the materials 25 data sheet, and so to be honest with you, I'd have to look at There -- there is -- there is an inconsistency with the Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 660 1 those sources to indicate where that came from, but that was 2 pulled right out of the literature. 3 Q. Okay. 4 A. Yes. 5 Q. And -- 6 A. To a large extent, yeah. 7 Q. There is -- attached to your report was a drugs.com 8 printout on midazolam hydrochloride. 9 have gotten that data from? And you said you relied on drugs.com, did you not? Was that where you would 10 A. It might have been, yes. 11 Q. And if you could, you have that exhibit in front of you, 12 and the midazolam printout starts on Bates Number 6518. 13 could please point to me where you got that data from. 14 A. 15 If you 6518. This is a long document. Okay. My quick glance, this is not -- may not be the 16 source where this came from. 17 Q. 18 70-kilogram adult, fatalities have occurred from midazolam in 19 doses ranging 2.8 to 4.9 milligrams? 20 A. 21 that source was. 22 Q. 23 as a preanesthetic for adults is 1.5 to 3.5 milligrams for a 24 70-kilogram adult less than 60 years old? 25 A. Okay. What is the source that you are citing that in a Off the top of my head, I can't -- I don't recall what You say earlier in your report that the therapeutic dose Right. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 661 1 Q. And so you -- you're citing also reports that have shown 2 fatalities in that therapeutic dose of a preanesthetic? 3 A. Yes. 4 Q. Is that correct? 5 A. Yes. 6 Q. But you don't know what the source of your data is? 7 A. Not off the top of my head, no. 8 Q. Does midazolam itself have any analgesic properties? 9 A. No. 10 Q. And in your report, you say, while it's not an analgesic, 11 which you just recognize, the dose administered per Chart B, 12 which is really Chart D, will render the person unconscious and 13 insensate during the remainder of the procedure. 14 "insensate" in quotations. 15 A. Unable to feel stimuli. 16 Q. And how do you know that? 17 A. How do I know that? 18 Q. Yes. 19 A. Well, it's -- certainly, if one is comatose, he's not 20 going to feel stimuli and we're essentially inducing a comatose 21 state. 22 Q. 23 induce a coma state? 24 A. Absolutely. 25 Q. And how many times have you used midazolam to induce a And you have What do you mean by "insensate"? So it's your opinion that 500 milligrams of midazolam will Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 662 1 coma state in a person? 2 A. 3 dose. 4 Q. And have you used midazolam to induce a coma? 5 A. It's routinely done in brain-injury patients, yes, but 6 much lower doses on a continuous infusion. 7 Q. 8 kind of patients? 9 A. With that kind of dose, I've never used it at that kind of And I'm sorry, I missed the first sentence -- word. What A brain-injured -- for instance, a brain-injured patient 10 might have a drug-induced coma induced in order for the 11 swelling of the brain to decrease and so that would be a 12 continuous IV infusion, so they would be -- their consciousness 13 level would be certainly lowered to the point of a drug-induced 14 coma. 15 Q. And have you done this yourself? 16 A. No. 17 Q. And how do you know that this is used to have a 18 drug-induced coma? 19 A. Well, I teach this material, so that's -- 20 Q. Are there any other drugs, in addition to midazolam, that 21 are combined to render the person in a coma? 22 A. There can be. 23 Q. And why would a narcotic be added? 24 A. Well, it's because you can reduce the dose of the 25 midazolam and get a more steady control. Oftentimes, additional narcotics are added. Midazolam is a very Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 663 1 short-acting drug, so adding something like a narcotic will 2 smooth that piece out. 3 Q. 4 you mentioned three to five minutes. 5 anyone in Oklahoma before Mr. Lockett's execution regarding the 6 administration of midazolam? 7 A. No. 8 Q. You mentioned the ceiling effect. 9 there is no ceiling effect with midazolam? And you said midazolam is a short-acting drug, and I think That's not what I said. Did you consult with Is it your opinion that 10 A. I said there is not a ceiling 11 effect from effects of the drug centrally to the orders of -- 12 higher parts of the brain. 13 Q. 14 effect on the higher parts of the brain? 15 A. 16 midazolam, it's a linear effect, so you're going to continue to 17 get an impact from higher doses of the drug. 18 Q. 19 curve with midazolam? 20 A. 21 within the body, but when you're administering a very large 22 volume of this drug, you're going to get a real big spike in 23 the concentration of blood centrally. 24 Q. 25 effect with midazolam? On the spinal column, there is. And what does that mean, that there is not a ceiling Well, it means that the -- as you increase the dose of And is it always a linear impact or is there ever an S Could be, because the drug is distributed very quickly And so do you know whether there is, in fact, a ceiling Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 664 1 A. There is no data that suggests that there is or there 2 isn't, but there's -- it's -- again, as you increase the dose, 3 you get increased CNS effects. 4 Q. 5 fact, a ceiling effect and there is, in fact, data that 6 supports that, would you have any reason to disagree that? 7 A. 8 about a spinal cord, I would tend to say, yes, that's 9 possible. And so if other doctors have testified that there is, in Depends on what they're referring to. If they're talking Indeed, several studies suggest that there may be a 10 ceiling effect, as you're beginning to try to reduce the amount 11 of midazolam -- I mean, to increase the amount of midazolam in 12 contrast to other anesthetics. 13 the same effect by itself. 14 Q. 15 misstating your opinion, that the midazolam has a paralyzing 16 effect and -- on the respiratory centers; is that what you 17 said? 18 A. 19 brain. 20 Q. So that would essentially mean you stop breathing? 21 A. You stop breathing. 22 Q. And how long would it take for an individual who received 23 500 milligrams of midazolam to stop breathing? 24 A. 25 within 20 minutes. You can't completely achieve And you mentioned, I believe, and please correct me if I'm It essentially shuts down the respiratory centers of the Less than a half an hour by itself, more than likely Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 665 1 Q. And what if it was administered with something else? 2 A. "Something else" being? 3 Q. Another drug. 4 hydromorphone? 5 A. It could happen quickly, quicker, perhaps. 6 Q. Would it take longer if it was administered -- is there 7 any reason to -- 8 A. No, there's no -- 9 Q. -- suggest that it would take longer if administered with What if it was administered with 10 hydromorphone, which is -- have you reviewed the defendants' -- 11 A. That (unintelligible), yes. 12 Q. -- protocol? 13 A. Yeah. 14 CNS depressant would not slow the onset of the activity. 15 Q. 16 somebody to die from 500 milligrams of midazolam and 500 17 milligrams of hydromorphone? 18 A. It certainly could be quicker. 19 Q. Quicker than what? 20 A. Quicker than midazolam alone. 21 Q. And so do you have a time -- 22 A. No. 23 Q. -- based on your opinion and your medical or 24 pharmacological experience? 25 A. Now, administering it in combination with another And so what is your opinion of how long it would take for I would imagine, again, it would be less than a half an Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 1 hour. 2 Q. 666 How do you know that? 3 THE COURT: Go ahead. When you get to a stopping 4 point, I need to ask a question relating to something he said a 5 minute ago. 6 Q. 7 how long would it take for the effects of those drugs to cause 8 death? 9 A. (BY MS. KONRAD) I was just going to ask: How do you know Well, there really isn't much concrete data about this. 10 But if you look at how much time it takes for either drug, you 11 can only extrapolate the fact that it may take less time when 12 you're basically combining the two drugs. 13 Q. 14 an hour to die from 500 milligrams of midazolam? 15 A. Right. 16 Q. And so you would assume that, with both of the drugs 17 together, it would take less than a half an hour? 18 A. Yes. 19 Q. And are you aware that there was an execution in Arizona 20 in July of this year where 750 milligrams of midazolam and 21 hydromorphone were administered? 22 A. 23 essentially in the press, but I have no specific concrete data 24 about that execution. 25 Q. And so you said it would take -- you -- less than a half I saw the headlines and I saw some report that was And what would your opinion be if it took 750 milligrams Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 667 1 of midazolam and hydromorphone to be injected before somebody 2 passed away after two hours? 3 A. 4 milligrams administered. 5 long period of time, it might not have the effect that was 6 sought. 7 Q. What would be a long period of time? 8 A. An hour. 9 Q. Five, ten minutes? 10 A. Five, ten minutes? 11 five to ten minutes, that individual should have had the effect 12 that they were after. 13 Q. How do you know that? 14 A. It's not terribly different than the 500 milligrams piece 15 in terms of such a tremendous overdose of the drug that most -- 16 I don't think anyone would be able to sustain life with that 17 kind of dose on board. 18 Q. 19 to show -- 20 A. No. 21 Q. -- that 500 milligrams of midazolam would cause death? 22 A. Only -- no, not -- yeah, the dose itself, 500 milligrams, 23 there is nothing out there in the literature that looks at 500 24 milligrams. 25 doses of the drug will cause death, so if we're essentially Well, the first thing I would ask is how fast was 750 Because if it was spread out over a If 750 milligrams was administered in You say you don't think, but do you know? Is there data There's lots of literature to suggest that lower Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 668 1 extrapolating this piece and saying there is a linear effect in 2 terms of administration of the drug and the concentrations you 3 can receive centrally, then it makes sense, it's a logical 4 assumption to make in this case. 5 Q. 6 you've studied, correct? 7 A. So you're making a logical assumption based on data that Right. 8 9 THE COURT: I'm going to ask the question I was going to ask. 10 You mentioned a few minutes ago, Dr. Evans, that the -- 11 and to save a little time, I'm going to just use some 12 adjectives that may be in controversy, but, anyway, that a 13 massive overdose of midazolam will shut down the respiratory 14 centers of the brain. 15 If the blood concentration of midazolam reaches the 16 threshold necessary to have that effect, what would you expect 17 the state of consciousness of the individual to be at that 18 point? 19 THE WITNESS: 20 THE COURT: 21 THE WITNESS: 22 THE COURT: It would be very much unconscious. Pardon me? It would be unconscious. You may proceed. 23 Q. (BY MS. KONRAD) You talked briefly about paradoxical 24 reactions. 25 paradoxical reactions with the use of midazolam. And could you please restate your opinion regarding Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 669 1 A. They're more common in low doses and their frequency is 2 very low. 3 Q. 4 occur with the use of midazolam? 5 A. I don't contest that, no. 6 Q. And do you have -- do you have any knowledge that they 7 cannot happen at a higher dose? 8 A. 9 I don't think it's as likely to happen. But you do not contest that a paradoxical reaction can No. No one -- I don't think I said that it can't happen, 10 Q. And what are you basing your opinion on? 11 A. Again, it's basically shutting down the central nervous 12 system. 13 Q. 14 plaintiffs in this case of Larry Sasich? 15 A. Yes. 16 Q. And do you recall -- I believe defendants' counsel asked 17 you about his report and some studies that he had cited and 18 relied upon regarding the paradoxical reaction. 19 that? 20 A. 21 report from a review article? 22 Q. Published case studies. 23 A. Published case studies. 24 Q. If you could take a look at this screen. 25 of Dr. Sasich's report. And have you reviewed the expert reports submitted by No. Do you recall Was it a study on paradoxical reaction or was it a I don't think I've seen that. This is page 5 And he indicates that they've -- Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 670 1 published case studies support that a paradoxical reaction can 2 occur after the person is adequately sedated. 3 A. Yes. 4 Q. And he cites two different case studies, and have you 5 reviewed those case studies that are cited there? 6 A. No. 7 Q. Would you have any reason to disagree with this 8 information at this point? 9 A. Without reading the case studies, no. 10 Q. And you made a comment about case studies on your direct 11 examination. 12 there were case studies, but not -- case reports, but not 13 studies, and so could you explain to me the difference between 14 a "case report" versus a "case study." 15 A. 16 if you will. 17 typically happening during practice. 18 Q. And do you put any weight on case reports? 19 A. Only that if there's nothing else available in terms of a 20 study, other reliable sorts of impartial observations, I do 21 look at those, yes. 22 Q. 23 adverse reaction would happen? 24 to human beings? 25 A. Do you see that? No, I have not. I believe you were critical of the fact that Well, a "case study" is basically a controlled experiment, More -- "case reports" are clinical observations You have to. And would there be case studies to determine whether an Do we study adverse reactions Well, you study adverse reactions to human beings as Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 671 1 you're getting a drug approved to go to market, and hopefully 2 as those adverse effects are reported. 3 market, it should -- they should be reported as well. 4 Q. 5 study the effects of drugs? 6 A. Well, no, we don't. 7 Q. I wanted to turn your attention to page Bates Numbers 8 6372, and it's Section 7 of your report. 9 A. 10 Once the drug is on the But do we intentionally cause harm to humans in order My report is here so I don't have to dig through it. Okay. Yes. 11 Q. 12 any experience in treating patients and witnessing involuntary 13 movements? 14 A. As a result of hypoxemia? 15 Q. Let's first just answer the first question. 16 And you are discussing involuntary movements. Do you have Have you ever treated and observed patients, yes, as a 17 result of hypoxemia? 18 A. 19 movements, yes, but not treating them personally. 20 Q. 21 or brain-dead? 22 A. Brain-damaged, not brain-dead. 23 Q. And the study that you cited here is describing 24 individuals who are brain-dead, was it not? 25 A. I have seen brain-damaged patients with involuntary And now you use the term "brain-damaged." Yes. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 Brain-damaged LEE EVANS - CROSS BY MS. KONRAD 672 1 Q. And have you read other reports besides this one to reach 2 your opinion about involuntary motor movements? 3 A. No. 4 Q. And if you could take a look at the screen. 5 look like a copy of the report that you have cited here? 6 A. Yes. 7 Q. And if you could, could you read to me that second 8 sentence starting with, "Although," on the first paragraph? 9 A. Does this "Although there are several sets of criteria for the 10 diagnosis of brain death, all require complete 11 unresponsiveness, permanent apnea and absent brain stem 12 reflexes. 13 neuromuscular blocking agents and hypothermia." 14 Q. 15 sedative drug? 16 A. 17 midazolam. 18 Q. And midazolam is a sedative drug? 19 A. Yes. 20 Q. And was he given a neuromuscular blocking agent? 21 A. Yes, he was. 22 Q. And so is it your opinion that Mr. Lockett was brain-dead? 23 A. I have no idea. 24 Q. Defense counsel mentioned that you testified in a case in 25 Florida called Chavez; is that correct? Okay. Most also require the absence of sedative drugs, And in Mr. Lockett's execution, was he given a As far as I know, with that execution, he was given Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 673 1 A. Yes. 2 Q. And when was that, Dr. Evans? 3 A. I believe it was sometime in the spring of 2014, but I'm 4 not sure. 5 Q. Was it before Mr. Lockett's execution? 6 A. Yes. 7 Q. And are you aware of additional executions that have 8 happened in Florida since your testimony? 9 A. Yes. 10 Q. And have you heard any eyewitness accounts that there have 11 been movements of defendants that have been executed in 12 Florida? 13 A. No. 14 Q. Now, I'd like to turn you to Section 8 of your report, 15 please. 16 A. Yes. 17 Q. And the question is: 18 A. Yes. 19 Q. And your second sentence says, "When high-dose 20 pentobarbital, thiopental, hydromorphone or midazolam are used 21 in the amounts specified in Attachment D, the subject quickly 22 reaches an unconscious and unresponsive state and would not 23 react to painful stimuli." 24 25 Can the subject feel pain? Let's just talk about midazolam, rather than the other three drugs right now. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 1 674 I would like to know what you're basing your opinion on 2 that someone would not react to painful stimuli? 3 A. 4 unconsciousness, it's very much unlikely that anyone is going 5 to react to any painful stimuli, by definition. 6 Q. 7 inappropriate drug order? 8 A. Well, sure. 9 Q. And if you got an inappropriate drug order from a Well, if we have induced a state of coma or Now, as a pharmacist, has a physician ever written an 10 physician, what would you do? 11 A. I'd interact with the physician to correct it. 12 Q. If a physician in a hospital wanted to use midazolam that 13 you knew she was going to use as the sole anesthetic agent in a 14 painful procedure, what would you do? 15 A. 16 not to do that because it's not typical right now. 17 normal practice to do that. 18 Q. 19 not use midazolam to induce unconsciousness for purposes of a 20 painful procedure? 21 A. 22 juncture would be that a combination would be utilized. 23 Q. 24 the agent to render you unconscious? 25 A. Well, if it was my service, I would probably advise them It's not Only because it's not normal, there's no other reason to I would -- I think the standard of practice at this Would you have a painful procedure with only midazolam as Would I? Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - CROSS BY MS. KONRAD 675 1 Q. Uh-huh. 2 A. I think I have in the past, yeah. 3 you know, when you start talking about painful, painful 4 stimuli, at what level are you talking about? 5 about a colonoscopy or are you talking about an invasive 6 procedure, which I am -- basically make an incision in your 7 abdomen? 8 Q. 9 potassium chloride would be an extremely painful procedure? But I don't think -- Are you talking That's two different things. Would you agree that the insertion of a large dose of 10 A. 11 about that drug, it is -- it's a caustic drug and it would be 12 painful. 13 Q. 14 to midazolam? 15 A. No. 16 Q. Do you know whether Mr. Lockett was rendered unconscious 17 from the midazolam that he received? 18 A. Eventually, I think he was. 19 Q. And when you say "eventually," what is your opinion of 20 when he was rendered unconscious? 21 A. 22 after the drug was initiated. 23 Well, it's hard to know, but based on what we do know Do you know whether Mr. Lockett had a paradoxical reaction Well, as I recall, the report, it was some 40 minutes MS. KONRAD: One moment, Your Honor. 24 Q. (BY MS. KONRAD) Did you advise the Department of 25 Corrections in Florida to use the drug selection of 500 Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - REDIRECT BY MR. HADDEN 1 milligrams of midazolam in their protocol? 2 A. 676 No. 3 MS. KONRAD: 4 THE COURT: 5 MR. HADDEN: 6 No further questions. Any redirect? Just a couple, Your Honor. REDIRECT EXAMINATION 7 BY MR. HADDEN: 8 Q. 9 regarding fatalities related to midazolam. Doctor, there were some questions earlier about your data Do you recall that? 10 A. Yes. 11 Q. Regardless of where you got that specific data, do you 12 still stand by your opinion that the use of 500 milligrams of 13 midazolam, as specified in Chart D and in the application of 14 the remainder of the drugs -- sorry, I lost my place for a 15 second. 16 Do you stand by your original opinion that the use of 17 Chart D in Attachment D would be effective? 18 A. Yes. 19 Q. And, also, in terms of your opinion that the use of 500 20 milligrams of midazolam in terms -- intravenously will do so, 21 you can interpolate data and look at research studies, can't 22 you? 23 A. Yes, you can. 24 Q. In addition, can you look at the 11 Florida executions 25 that have occurred and draw some conclusions from that as well? Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - REDIRECT BY MR. HADDEN 677 1 A. Yes. 2 Q. In terms of the Arizona execution that you were questioned 3 about, do you have any knowledge about the specifics of 4 precisely when and how much drugs were administered during 5 that? 6 A. No, I do not. 7 Q. I think you had testified a few moments ago in that that 8 the 750 milligrams would need to be administered quickly? 9 A. Right. 10 Q. So if it was administered more slowly or over a period of 11 time, it would be less effective than quickly? 12 A. Correct. 13 Q. You were also asked some questions about -- sounded like a 14 hypothetical, about receiving an order from a doctor for an 15 amount of midazolam. 16 A. Right. 17 Q. As that's described, we're talking about a therapeutic 18 level of midazolam, aren't we? 19 A. Yes. 20 Q. And we are talking about doing a surgical procedure, not 21 carrying out an execution process, correct? 22 A. Do you recall that? Right. 23 MR. HADDEN: 24 THE COURT: 25 MS. KONRAD: I have no further questions. Any recross? Just briefly. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505 LEE EVANS - REDIRECT BY MR. HADDEN 1 678 RECROSS-EXAMINATION 2 BY MS. KONRAD: 3 Q. Have you ever observed an execution in Florida? 4 A. I have not. 5 Q. And in Florida, do they give a large dose of a paralytic 6 after injecting the midazolam? 7 A. Yes. 8 Q. So if somebody were rendered conscious, they would not be 9 able to move from the paralytic; is that correct? 10 A. That's true. 11 MS. KONRAD: 12 THE COURT: 13 MR. HADDEN: 14 THE COURT: 15 No further questions. You may step down. Your Honor, I just have one question. We'll have one more round, then. REDIRECT EXAMINATION 16 BY MR. HADDEN: 17 Q. 18 they do have a consciousness check before they introduce the 19 paralytic, correct? 20 A. Dr. Evans, my only question is: In Florida, you are aware Yes. 21 MR. HADDEN: Thank you, Your Honor. 22 THE COURT: 23 MS. KONRAD: No, Your Honor. 24 THE COURT: You may step down. 25 THE WITNESS: Any re-recross? Thank you. Tracy Washbourne, RDR, CRR United States Court Reporter U.S. Courthouse, 200 N.W. 4th St. Oklahoma City, OK 73102 * 405.609.5505