In the Matter of: JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. EVIDENTIARY HEARING February 05, 2014 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 1 ·1· · · · IN THE UNITED STATES DISTRICT COURT, MIDDLE DISTRICT ·2· · · · · · · · ·OF FLORIDA, JACKSONVILLE DIVISION ·3 ·4 ·5· ·JUAN CARLOS CHAVEZ,· · · · · · ·Jacksonville, Florida ·6· · · · · · · · ·Plaintiff,· · · · Case No. 3:14-cv-110-J-39JBT ·7· ·-vs-· · · · · · · · · · · · · · February 5, 2014 ·8· ·JOHN PALMER,· etc., et al.,· · ·9:09 a.m. ·9· · · · · · · · ·Defendants.· · · ·Courtroom 12 C 10 11· · · · ·~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 12 13· · · · · · · · TRANSCRIPT OF EVIDENTIARY HEARING 14· · · · · · · ·BEFORE THE HONORABLE BRIAN J. DAVIS 15· · · · · · · · · ·UNITED STATES DISTRICT JUDGE 16 17· ·COUNSEL FOR THE PLAINTIFF: 18· · · 19· · · 20 ·ROBERT A. NORGARD, Esquire ·Law Office of Robert Norgard ·P.O. Box 811 ·Bartow, Florida· 33831 21· · · 22· · · 23 ·SONYA RUDENSTINE, Esquire ·Sonya Rudenstine, Attorney At Law ·204 W. University Avenue, Suite 5 ·Gainesville, Florida· 32601 24 25 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 2 ·1· ·COUNSEL FOR THE DEFENDANTS: ·2· · · ·3· · · ·4· ·SCOTT A. BROWNE, Senior Assistant Attorney General ·Office of the Attorney General ·Suite 200 ·3507 E. Frontage Road ·Tampa, Florida· 33607-7013 ·5· ·Also present: ·6· ·Paula Montlary, Certified Legal Assistant Specialist ·7 ·8· · · ·9· · · 10· · · 11 ·Court Reporter: · · · ·L. Marie Splane, RDR, CRR, FPR · · · ·Cornerstone Litigation Services, LLC · · · ·2223 Oak Street · · · ·Jacksonville, Florida· 32204 · · · ·Telephone:· (904) 647-4723 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 1 ·1· · · · · · ·I N D E X· ·O F· ·E X A M I N A T I O N ·2· · · · · · · · · · · · · · · · · · · · · · · · · · ·Page No. ·3· ·WITNESS CALLED BY THE PLAINTIFF: ·4 ·5· · · · DR. DAVID LUBARSKY ·6· · DIRECT EXAMINATION BY MR. NORGARD...................· · 22 ·7· · CROSS-EXAMINATION BY MR. BROWNE.....................· · 51 ·8· · REDIRECT EXAMINATION BY MR. NORGARD.................· · 73 ·9 10 11· ·WITNESS CALLED BY THE DEFENDANTS: 12 13· · · · DR. ROSWELL LEE EVANS 14· · DIRECT EXAMINATION BY MR. BROWNE....................· · 78 15· · CROSS-EXAMINATION BY MR. NORGARD....................· · 90 16· · REDIRECT EXAMINATION BY MR. BROWNE..................· ·108 17 18 19· ·WITNESS RECALLED BY THE PLAINTIFF: 20· · · · DAVID LUBARSKY 21· · DIRECT EXAMINATION BY MR. NORGARD...................· ·113 22 23· ·EXHIBITS 24 25· · · · · Defendants' Exhibit 1· · · · ·................· · 79 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 3 ·1· · · · · · · · · · · ·P R O C E E D I N G S ·2· · February 5, 2014· · · · · · · · · · · · · · · · 9:09 a.m. ·3· · · · · · · · · · · · · · · ·--·4· · · · · · COURT SECURITY OFFICER:· All rise.· The United ·5· ·States District Court in and for the Middle District of ·6· ·Florida is now in session.· The Honorable Brian J. Davis, ·7· ·Judge of the United States District Court, is presiding.· God ·8· ·save the United States and this Honorable Court. ·9· · · · · · Please be seated. 10· · · · · · THE COURT:· Good morning. 11· · · · · · MR. BROWNE:· Good morning. 12· · · · · · THE COURT:· Please be seated, Counsel.· Court is 13· ·convened today in connection with case number 3:14 CV 110. 14· ·Juan Carlos Chavez versus John Palmer and Michael Crews. 15· · · · · · For the record, if I could get you to identify 16· ·yourselves. 17· · · · · · MR. BROWNE:· Your Honor, Scott Browne with the 18· ·Attorney General's Office from Tampa, and also appearing with 19· ·me momentarily, I hope, will be my research associate, Paula 20· ·Montlary, M-o-n-t-l-a-r-y.· Your Honor, she is not an 21· ·attorney but I would request permission for her to sit at 22· ·counsel table. 23· · · · · · THE COURT:· Very good, permission is granted. 24· · · · · · And? 25· · · · · · MR. NORGARD:· Bob Norgard on behalf of the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 4 ·1· ·plaintiff, Juan Carlos Chavez.· With me is Sonya Rudenstine, ·2· ·who is going to be cocounsel in this hearing.· We also have ·3· ·Dr. Lubarsky here live.· So we were able to accomplish that. ·4· ·So he is here. ·5· · · · · · THE COURT:· Thank you.· Welcome to you all. ·6· · · · · · Couple of matters preliminarily.· You should know ·7· ·that I took note of the service of process issue raised by ·8· ·the government, the defendants.· I've ordered the marshal to ·9· ·expedite service so that that issue is hopefully rendered 10· ·moot. 11· · · · · · There's also the issue of Ms. Rudenstine's 12· ·appointment.· There was an objection made by the government. 13· ·Since then there's been a reply made that explains some of 14· ·the confusion.· Does the government continue to maintain its 15· ·objection? 16· · · · · · MR. BROWNE:· Yes, Your Honor, although I must 17· ·candidly admit I've not seen the reply, but again, I think I 18· ·can stand on the pleading.· I believe the statute is clear 19· ·you're entitled to one attorney.· Mr. Norgard has been 20· ·representing Mr. Chavez for -21· · · · · · THE COURT:· The confusion, Ms. Rudenstine in her 22· ·reply apologized for the reference she made to the statutory 23· ·authority, really was unnecessary.· It also confused the 24· ·Court somewhat. 25· · · · · · MS. RUDENSTINE:· I apologize, Your Honor. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 5 ·1· · · · · · THE COURT:· She is seeking to be appointed pro bono ·2· ·and I'm not aware of any authority that would preclude her ·3· ·from doing that. ·4· · · · · · MR. BROWNE:· Your Honor, with that clarification, if ·5· ·she's here pro bono, I withdraw my objection. ·6· · · · · · THE COURT:· I thought once you got the reply that ·7· ·you might. ·8· · · · · · MS. RUDENSTINE:· Yes.· I apologize for that ·9· ·confusion, Your Honor. 10· · · · · · THE COURT:· So she will be appointed and has filed a 11· ·notice of appearance. 12· · · · · · We are here pursuant to the Court's order requiring 13· ·additional briefing on the issue of the distinguishability of 14· ·Muhammad versus Crews, a recently decided case by the 15· ·Eleventh Circuit and this Court as well, as it relates to now 16· ·a motion for temporary restraining order.· The Court required 17· ·additional briefing.· Both of you have responded to that.· It 18· ·also ordered additional evidence to be submitted to the Court 19· ·and I understand the government has an objection to that.· I 20· ·think we should probably hear that objection first. 21· · · · · · MR. BROWNE:· Yes, Your Honor.· And, again, I think 22· ·it's fairly well set forth in our pleadings, but the State's 23· ·position is that there is no need for a hearing.· This -- we 24· ·have sought judgment on the basis of the pleadings on a 25· ·number of grounds, including res judicata, based upon a very Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 6 ·1· ·recent Eleventh Circuit case which the State submits as being ·2· ·directly on point. ·3· · · · · · There is also the statute of limitations defense, ·4· ·failure to exhaust administrative remedy and also failure to ·5· ·state a claim.· And I believe all of these defenses, Your ·6· ·Honor, would preclude granting any type of relief in this ·7· ·case, much less a stay of execution.· And Your Honor is well ·8· ·aware the stay of execution is an extraordinary remedy and ·9· ·the defendant has the burden to show its substantial 10· ·likelihood of success on the merits.· On the basis of these 11· ·pleadings he has not come close to meeting that burden and, 12· ·again, I object to actually hearing testimony before actually 13· ·this Court rules on the pleadings.· I think most of his 14· ·claims are resolved by compelling case law which is directly 15· ·on point and I believe judgment on the pleadings is 16· ·appropriate. 17· · · · · · THE COURT:· All right.· For Mr. Chavez? 18· · · · · · MS. RUDENSTINE:· Yes, Your Honor.· It's my 19· ·understanding from the Court's order that we're here 20· ·essentially so the Court can gather information, rather than 21· ·for any kind of evidentiary hearing to determine justiciable 22· ·issues of fact.· And so, you know, my preliminary response 23· ·would simply be that it's too early for all of the defenses, 24· ·for purposes of today, that the State is raising.· But then 25· ·if I could, I could briefly go through each one of their Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 7 ·1· ·arguments specifically just to address them. ·2· · · · · · The first one being that this is precluded because ·3· ·the defendant has -- sorry, the plaintiff has waited until ·4· ·the eleventh hour to file the TRO and the complaint.· And as ·5· ·we know, the new protocol came out in September and he has a ·6· ·four-year statute of limitations from that date, assuming ·7· ·that the Court finds that there's a substantial change in the ·8· ·protocol.· So certainly would contend that several months ·9· ·down the road is not waiting until the eleventh hour.· He 10· ·began -- counsel for Mr. Chavez began exploring this issue 11· ·almost immediately upon issuance of the protocol.· He was in 12· ·litigation in three separate venues at the same time, 13· ·determined that Dr. Lubarsky could add factual information 14· ·that would enlighten the Court to this issue.· And within all 15· ·of that -- those contexts, we certainly would argue that this 16· ·was as quick as could be accomplished under the 17· ·circumstances.· And the State itself is the one, to some 18· ·regard, that has imposed this time limit on the Court by 19· ·certifying the case as warrant-ready, which then of course 20· ·sped up the entire process. 21· · · · · · And certainly the State would have to assumed that 22· ·any defendant facing execution under a new protocol would 23· ·want time to research and look into the merits of that new 24· ·protocol and any potential harm that it might cause the 25· ·defendant, and so potentially should have waited until Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 8 ·1· ·declaring the case warrant-ready in order to give everybody ·2· ·time to do that.· But given that it did not, we are in this ·3· ·posture and we believe we've raised this claim in as timely a ·4· ·manner as possible. ·5· · · · · · The second issue they raise is that the protocol is ·6· ·not substantially different because of the substitution of ·7· ·the midazolam for the prior anesthetic.· And obviously that's ·8· ·what we're here today to look at to some degree, but -- and ·9· ·we've addressed it in our complaint, but the brief outline of 10· ·this issue is that the State called midazolam an anesthetic 11· ·in its pleadings and essentially asserts that the 12· ·substitution of one anesthetic for another is not a 13· ·substantial change, relying on previous case law that found 14· ·that when the pentobarbital was substituted for the previous 15· ·anesthetic.· The case that we're here to make today and that 16· ·we've made in our pleadings is that midazolam is in no way an 17· ·anesthetic, it is a sedative, and the two things are like 18· ·apples and oranges.· They have very different properties, the 19· ·most significant being that midazolam has no analgesic 20· ·properties, meaning that it does not present -- prevent the 21· ·sensation of pain. 22· · · · · · The second is that it's short-acting, and the third 23· ·is that it's never been used alone to create an anesthetic 24· ·level of unconsciousness, and nor should it. 25· · · · · · And it's -- and the third is that it's never been Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 9 ·1· ·used in executions in any other states but Florida and Ohio. ·2· · · · · · So it's a very, very different drug, and to make the ·3· ·analogy between the substitution of one anesthetic for ·4· ·another and the substitution of a sedative for an anesthetic ·5· ·is simply not supportable. ·6· · · · · · So the exception that the State points to then is ·7· ·Muhammad, which did obviously examine the substitution of the ·8· ·midazolam for the prior anesthetic, and they invoke that as ·9· ·precedent for the statute of limitations issue and other 10· ·reasons, as well as that the complaint is res judicata.· And 11· ·that's what we're here today to look at. 12· · · · · · Mr. Chavez presented numerous claims in state court 13· ·and Muhammad presented, according to both the State and the 14· ·Florida Supreme Court, identical claims.· And so the question 15· ·then before the Court is, are our claims and our evidence 16· ·different in some way from those presented in Muhammad. 17· · · · · · And the -- if we do not prevail on a substantial 18· ·change, then obviously the statute of limitations issue is 19· ·foreclosed, but we will make the case today that this was a 20· ·substantial change.· Regard -21· · · · · · THE COURT:· Excuse me, let me interrupt you for a 22· ·moment and put this question to Mr. Browne. 23· · · · · · Mr. Browne, is not that determination a fact 24· ·intensive determination as to whether or not there's been a 25· ·substantial change?· And as I understand your argument, the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 10 ·1· ·statute of limitations rests on whether or not -- or ·2· ·application rests on whether or not there has been a ·3· ·substantial change. ·4· · · · · · MR. BROWNE:· Yes, Your Honor, but this Court has the ·5· ·benefit of Eleventh Circuit precedent in Mann, Pardo, ·6· ·DeYoung, Valle, that indicates that merely substituting one ·7· ·anesthetizing drug in the three-drug protocol does not ·8· ·restart your statute of limitations period.· Here the State ·9· ·has made that substitution.· The defense is raising some 10· ·questions about that but I submit that they are insufficient 11· ·as a matter of established law to make a challenge under the 12· ·Eighth Amendment. 13· · · · · · THE COURT:· All right. 14· · · · · · MR. BROWNE:· And Your Honor, if I may just briefly 15· ·address a couple of their arguments? 16· · · · · · THE COURT:· Well, you've answered my question and 17· ·let Ms. Rudenstine continue and then -- and certainly you'll 18· ·be given an opportunity to respond. 19· · · · · · MR. BROWNE:· Thank you, Your Honor. 20· · · · · · THE COURT:· You're welcome. 21· · · · · · MS. RUDENSTINE:· Your Honor, I was just saying by 22· ·the State's contentions the Department of Corrections could 23· ·decide to put almost any drug in the spot of the first drug 24· ·and then would simply be able to say, well, we're just 25· ·substituting one drug for another, end of story.· That is not Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 11 ·1· ·what those cases say.· The cases simply say that there was no ·2· ·difference between one anesthetic and another in those ·3· ·protocols.· And as I've said, this is a very different ·4· ·situation. ·5· · · · · · The res judicata issue is only applicable if there ·6· ·is no -- not only no new evidence, but no new claims.· And we ·7· ·have both new evidence and new claims.· And the new claims ·8· ·I'll just quickly point out are second, third and fourth and ·9· ·fifth, actually in our complaint, the second being that the 10· ·force administration of the paralytic, under the Fourteenth 11· ·Amendment freedom of liberty, is a violation of the 12· ·constitution under Sell versus United States.· That issue has 13· ·never been raised in any Florida court or as far as we know 14· ·in any court in the country, and that issue is entirely 15· ·connected to the change in the protocol because of the 16· ·substitution of midazolam.· Prior to that change, Mr. Chavez 17· ·had no interest in resisting the paralytic.· Once that change 18· ·occurred and he became aware of all of the attendant risks of 19· ·that drug he wanted to essentially prevent DOC from applying 20· ·the paralytic.· So that is not a statute of limitations 21· ·issue, it is a new claim that is -- it's tied to the 22· ·substantial change in the protocol. 23· · · · · · The next claim is the three-drug versus the first 24· ·drug, the one-drug protocol.· That was raised in Muhammad and 25· ·in Chavez.· However as the Court knows, an Eighth Amendment Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 12 ·1· ·involving standard of decency claim hinges on evolving ·2· ·standards of decency.· So we have new evidence based on that ·3· ·claim in two forms.· One is that we have two executions using ·4· ·midazolam that have occurred since the Muhammad and Chavez ·5· ·hearings on this issue, and in both cases, as Dr. Lubarsky ·6· ·asserts in his affidavit, one in Ohio, Mr. McGuire and ·7· ·Mr. Muhammad in Florida, the defendants were not unconscious, ·8· ·as indicated by the movement that they had in those. ·9· · · · · · The next piece of evidence that we have is that at 10· ·least one state since the Muhammad and Chavez hearings has 11· ·changed over to a one-drug protocol, so there's new evidence 12· ·there.· So that's the third claim and why we believe we are 13· ·not precluded from that claim. 14· · · · · · The fourth claim, human experimentation, is based on 15· ·the notion that midazolam, again, has never been used in 16· ·executions except in Florida and once in Ohio.· There are no 17· ·scientific studies to support the doses or the context in 18· ·which it's being used.· That claim has not been raised in any 19· ·court in Florida, as far as we know, or at the very least 20· ·certainly not in Chavez or Muhammad. 21· · · · · · And then the failure to produce records is not 22· ·particularly pertinent at this point, but we did want to 23· ·preserve that issue under the First and Fourteenth Amendments 24· ·and those were not raised in Chavez. 25· · · · · · And I'll just briefly highlight as to the first Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 13 ·1· ·claim, the distinctions between the midazolam and the prior ·2· ·anesthetic, pentothal and sodium thiopental.· And, again, ·3· ·this is what we would show with testimony from Dr. Lubarsky. ·4· ·First, midazolam, obviously new and different drug, it's very ·5· ·short-acting and it's never been previously used. ·6· · · · · · And we also offer -- sorry, Your Honor -- in high ·7· ·doses that it will completely abate consciousness.· Ten to 15 ·8· ·milligrams is a deep level of consciousness.· This is -- this ·9· ·is essentially what he and Evans testified to.· He's 10· ·primarily in Muhammad.· So these are the facts that we will 11· ·distinguish:· That it will abate consciousness, that it's 12· ·slower than a barbiturate, but when successfully delivered to 13· ·the brain it has full efficacy as an anesthetic, a large dose 14· ·will last many hours and movement of the sort in Happ's 15· ·execution equates with -- does not equate with consciousness. 16· · · · · · So that's what he said in Muhammad, and that was the 17· ·finding of the Florida Supreme Court. 18· · · · · · Evans, Dr. Evans who is the State's expert here 19· ·today testified that midazolam is FDA-approved for induction 20· ·of general anesthesia, that the inmate would be rendered 21· ·unconscious within two minutes and the higher dose would lead 22· ·to longer unconsciousness.· And 1500 milligrams would pause 23· ·respiratory and possibly cardiac arrest which would render 24· ·the person comatose.· Dr. Evans also testified that movement 25· ·does not equal consciousness and that the Happ movement, the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 14 ·1· ·movement Mr. Happ underwent in his execution could have been ·2· ·a response to the depressed respiration and finally, that the ·3· ·eyelid tap used in surgical settings is adequate to measure ·4· ·the depth of consciousness.· So knees again are the findings ·5· ·in Muhammad and by analogy in Chavez as well because the ·6· ·State has contended that the two cases are identical. ·7· · · · · · So in summary, the Florida Supreme Court essentially ·8· ·said the following, that midazolam is an FDA-approved drug ·9· ·routinely used as an anesthetic in minor surgical procedures. 10· ·That's the first claim made by the Court.· We are going to 11· ·offer evidence that it's not FDA-approved as an anesthetic 12· ·and it is never used as such, it has no analgesic qualities, 13· ·and it cannot induce a surgical plane of anesthesia by 14· ·itself, so it should never be used in proceedings of the sort 15· ·at issue here. 16· · · · · · Next, the Florida Supreme Court looked at the dose 17· ·and said it would render the inmate unconscious and insensate 18· ·but would ultimately cause death if properly administered. 19· ·By contrast, we'll offer evidence that the drug has no 20· ·analgesic qualities and there are no studies to support these 21· ·conclusions about high doses because they have never been 22· ·given. 23· · · · · · Heath and Evans made no mention of paradoxical 24· ·reactions, and that's the key here, as the Court pointed out 25· ·in its order.· That claim was never raised as part of the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 15 ·1· ·Eighth Amendment claim in Chavez or Muhammad.· So that is new ·2· ·evidence with an expert who was not called in either case, ·3· ·and in fact in Mr. Chavez's case there was no expert ·4· ·proffered, so this is additional evidence that was not ·5· ·previously presented to the state court.· And the paradoxical ·6· ·reaction is key because it results in a lack of ·7· ·unconsciousness, which is exactly the opposite of the effect ·8· ·that we want in an execution. ·9· · · · · · So the person would be able to feel all of the pain 10· ·induced by the second and third drug, which all courts have 11· ·found it significant, in violation of the Eighth Amendment. 12· ·And Dr. Lubarsky would testify that those reactions are more 13· ·common in inmates with brain infirmities, like severe anxiety 14· ·of the sort that Mr Chavez suffers from. 15· · · · · · Third, the Supreme Court stated that Happ's 16· ·movement, if accurate, does not equate to pain.· Dr. Lubarsky 17· ·would testify to the opposite, which is that it is absolute 18· ·evidence of the fact that Mr. Happ was not unconscious during 19· ·his execution. 20· · · · · · THE COURT:· Let me -- let me stop you, because one 21· ·of the factual issues that remains unclear is in -- the 22· ·difference between consciousness and being insensate.· And I 23· ·believe the analysis in Muhammad and the record in this case 24· ·needs to address either the similarities that exist with 25· ·respect to the findings in Muhammad or the differences that Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 16 ·1· ·are in that case as opposed to this one.· So there's a ·2· ·blurring and a lack of specificity with respect to that issue ·3· ·that is of concern to the Court, and I'm going to -- both you ·4· ·and Mr. Browne to be aware of that in your examination of ·5· ·witnesses that might give -·6· · · · · · MS. RUDENSTINE:· Yes, Your Honor, and we will ·7· ·certainly address that.· And you rightly point out that there ·8· ·is -- unconsciousness is a bit of a misleading word because ·9· ·someone can be unconsciousness and still susceptible to 10· ·noxious stimuli of the sort that the second and third drug 11· ·posed.· And I guess we'll present testimony on that, but it's 12· ·certainly something that we intend to address. 13· · · · · · So if I could just summarize the evidence that is 14· ·different in this case.· We have both the Muhammad and the 15· ·McGuire executions.· We have a McDonough -- an affidavit from 16· ·former Secretary of the Department of Corrections, James 17· ·McDonough, who offers testimony about what a thorough review 18· ·of a drug should be in order to meet the standard for the 19· ·Eighth Amendment, as well as his statement that the paralytic 20· ·is not useful for any medical purpose.· And then we have a 21· ·new expert who can impeach both doctors, he and Dr. Evans, as 22· ·well as present new evidence based on new executions and 23· ·paradoxical reactions. 24· · · · · · THE COURT:· All right.· Thank you, Ms. Rudenstine. 25· · · · · · Mr. Browne? Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 17 ·1· · · · · · MR. BROWNE:· Your Honor, briefly.· The evidence in ·2· ·Muhammad regarding the safety and efficacy of midazolam was ·3· ·unquestionably not close.· It established, even by the ·4· ·defense expert, who Dr. Heath is a board-certified ·5· ·anesthesiologist at Columbia Hospital, he testified that he ·6· ·used midazolam every single day in his practice, that it ·7· ·would safely and reliably render someone unconscious in two ·8· ·minutes.· Dr. Heath agreed.· They both agreed that at the ·9· ·dosage indicated in Florida's protocol, it would render a 10· ·person completely unconscious, insensate, and likely lead to 11· ·death.· What the defense has done in this case is somehow 12· ·find Dr. Lubarsky, who has appeared in some of these other 13· ·lethal injection cases or he disputes or he gnaws around at 14· ·the edges of those conclusions.· He didn't say that 15· ·250 milligrams of midazolam would not render you unconscious 16· ·to a reasonable degree of medical certainty.· I'm sure the 17· ·doctor knows why he can't say that.· So what we have here are 18· ·words like possibility, may.· And these terms and these -19· · · · · · THE COURT:· Let me stop you, because your point is 20· ·well taken.· So do you think that the holding in Browne 21· ·stands for the proposition that midazolam is an effective 22· ·drug as it relates to rendering an inmate insensate? 23· · · · · · MR. BROWNE:· Yes, Your Honor, because unconscious -24· ·both experts testify if you're deeply unconscious you're in a 25· ·coma, you're not feeling anything at that point.· And not Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 18 ·1· ·only just unconscious.· And I recognize that they have raised ·2· ·allegations concerning paradoxical reactions.· And, again, if ·3· ·I can move to the res judicata argument. ·4· · · · · · So this case comes to this Court after having a full ·5· ·and fair evidentiary hearing in state court.· That decision ·6· ·was affirmed.· The Supreme Court denied certiorari on that ·7· ·case, on that evidence.· Now Mr. Chavez, having just recently ·8· ·challenged lethal injection in state court, brings a few ·9· ·extra little allegations here and finds a new expert, 10· ·Dr. Lubarsky.· Dr. Lubarsky has been around.· He's cited in 11· ·those 1983s that have been filed over the past year.· So he's 12· ·known as an expert.· Mr. Chavez had an opportunity to raise 13· ·these claims, the paradoxical effect or reaction, in state 14· ·court.· He chose not to do so. 15· · · · · · Muhammad stands for the proposition that res 16· ·judicata applies not only to these claims that he did in fact 17· ·raise -- and he certainly raised an Eighth Amendment 18· ·challenge.· He raised prior alleged mishaps, if you will, 19· ·from prior executions -- but also res judicata applies to the 20· ·claims that he could have raised.· There's no question, Your 21· ·Honor, that Mr. Chavez in state court litigation could have 22· ·raised the same claims, could have cited Dr. Lubarsky.· He 23· ·failed to do so.· Muhammad controls.· The Eleventh Circuit 24· ·didn't say, oh, if you have new allegations or new claims, 25· ·we're just going to let you go ahead and file in federal Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 19 ·1· ·court.· They didn't do that for a reason, Your Honor.· Comity ·2· ·principles preclude that.· And in this case we're having ·3· ·litigation in federal court on the same issue that either ·4· ·were or could have been raised in state court. ·5· · · · · · So I think Muhammad forecloses relitigating these ·6· ·issues before a federal court.· And as to their Fourteenth ·7· ·Amendment claim, certainly they're now raising a due process ·8· ·argument.· Again, the same argument on res judicata would ·9· ·apply.· Mr. Norgard could have raised those claims in state 10· ·court.· And moreover, it's the Eighth Amendment which 11· ·applies, not the Fourteenth Amendment.· I think we've pretty 12· ·easily distinguished the case law upon which the plaintiff 13· ·relies.· This isn't an involuntary medication case.· This is 14· ·a case about lethal injection under the Eighth Amendment.· We 15· ·intend that Mr. Chavez's lawful sentence be carried out and 16· ·death result, which, Your Honor, was earned for his 17· ·horrendous crimes that he committed in this state.· His 18· ·convictions are valid; they've withstood the challenge.· And 19· ·it is time for that sentence to be carried out. 20· · · · · · THE COURT:· All right.· Thank you, Mr. Browne. 21· · · · · · On the emergency motion for reconsideration of order 22· ·setting evidentiary hearing, I'm going to deny that motion. 23· ·We will -- and the basis of the Court's ruling in that 24· ·regard, Mr. Browne, is that the issues that you raise are all 25· ·fact dependent.· And I hear you -- and there may be mixed Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 20 ·1· ·questions of law and fact in some instances, but I do believe ·2· ·that it's necessary for this Court to amplify the record with ·3· ·regard to each of those issues as expeditiously as it can, ·4· ·and in particular with regard to the issues that arise out of ·5· ·Muhammad as relates to Mr. Chavez's allegations and their ·6· ·differences or similarities.· I believe the limited ·7· ·examination that the Court is afforded today is not only ·8· ·helpful but imperative, so we'll move forward with that ·9· ·today. 10· · · · · · Mr. Norgard, I see you rise.· Before I hear from 11· ·you -- Mr. Browne, did Ms. Montlary arrive? 12· · · · · · MR. BROWNE:· Yes, Your Honor. 13· · · · · · THE COURT:· Do you want her at counsel table with 14· ·you? 15· · · · · · MR. BROWNE:· Yes, Your Honor, please. 16· · · · · · THE COURT:· If you -- certainly would allow her to 17· ·come forward. 18· · · · · · MR. BROWNE:· Thank you, Your Honor. 19· · · · · · MR. NORGARD:· Your Honor, one thing I do need to 20· ·clarify, and I think Mr. Browne was just caught up in the 21· ·heat of the argument, but we were denied in Chavez an 22· ·evidentiary hearing, so we did not have an opportunity to 23· ·have an evidentiary hearing and present any evidence 24· ·different than what was presented in Muhammad.· And the 25· ·Florida Supreme Court, which has since rendered their opinion Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 21 ·1· ·in the Chavez case, basically said under Florida law you get ·2· ·one bite at the apple for all defendants.· The first one that ·3· ·goes, that controls herein and hereout.· So this is our first ·4· ·first opportunity to present somebody like Dr. Lubarsky, and ·5· ·so we would call him as our witness.· Thank you, sir. ·6· · · · · · THE COURT:· Very good. ·7· · · · · · Dr. Lubarsky, if you would come forward to the clerk ·8· ·to be placed under oath. ·9· · · · · · He must have stepped out to the rest room.· I'm sure 10· ·he'll return momentarily. 11· · · · · · MR. NORGARD:· I don't think doctors like hearing 12· ·lawyers argue. 13· · · · · · THE COURT:· Dr. Lubarsky, if you would step forward 14· ·to our clerk, please, to be placed under oath. 15· · · · · · THE CLERK:· Go to the witness stand and I'll place 16· ·you under oath. 17· · · · · · Can you raise your right hand?· Do you solemnly 18· ·swear that the testimony you are about to give before this 19· ·Court will be the truth, the whole truth and nothing but the 20· ·truth, so help you God? 21· · · · · · THE WITNESS:· I do. 22· · · · · · THE CLERK:· Please be seated. 23· · · · · · THE WITNESS:· Thank you. 24· · · · · · THE CLERK:· Can you state your full name for the 25· ·record and spell your last name. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 22 ·1· · · · · · THE WITNESS:· Sure.· David Lubarsky, ·2· ·L-u-b-a-r-s-k-y. ·3· · · · · · THE COURT:· Mr. Norgard. ·4· · · · · · · · · · · · · DAVID LUBARSKY, ·5· ·called as a witness on behalf of the plaintiff, testified as ·6· ·follows: ·7· · · · · · · · · · · · DIRECT EXAMINATION ·8· ·BY MR. NORGARD: ·9· ·Q.· · Thank you, sir. 10· · · · · · Dr. Lubarsky, the first thing I'm going to do is 11· ·just have you adopt for the record the curriculum vitae that 12· ·was filed as an appendix in this case, but you did supply the 13· ·plaintiff with a current curriculum vitae; is that correct? 14· ·A.· · That is correct. 15· ·Q.· · And that fully updates all your qualifications, 16· ·experience, training, et cetera? 17· ·A.· · It does. 18· · · · · · MR. NORGARD:· Your Honor, I'm not going to have him 19· ·regurgitate everything in there.· You've got a copy in there. 20· · · · · · THE COURT:· It is of record. 21· · · · · · MR. NORGARD:· All right.· Thank you, sir. 22· ·BY MR. NORGARD: 23· ·Q.· · One area that I do want to address as far as your 24· ·training and experience, if you could briefly share with the 25· ·Court why you feel your qualifications are such to testify Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 23 ·1· ·about something such as this Midazolam Protocol that's now ·2· ·used in Florida. ·3· ·A.· · Certainly.· Both my clinical research and review ·4· ·writing experience are particularly pertinent to this.· As ·5· ·between being vice-chair of the department at Duke University ·6· ·for approximately eight years and personally administering ·7· ·anesthesia for more than a quarter of a century and being the ·8· ·chair at the largest training program in the world for ·9· ·anesthesia for the last 12 years, I feel that my experience 10· ·overseeing the clinical operation of more than a million 11· ·aesthetics and personally having delivered more than 10,000, 12· ·qualifies me to make specific comments about how easy or hard 13· ·it is to put people to sleep, number one, and what drugs are 14· ·or are not efficacious. 15· · · · · · Number 2, in terms of my research, I've published 16· ·several articles around the use of lethal injection protocols 17· ·and the problems with various protocols across many different 18· ·states in these United States, and my research and 19· ·publications in that area remain the only peer-reviewed 20· ·publication.· And so by default I am the -- actually the only 21· ·scientist who has published data on lethal injection. 22· · · · · · Third, I have been a repetitive author on the nation 23· ·and world's leading definitive textbook on induction agents. 24· ·So in Miller's Anesthesia, which is widely regarded as the 25· ·number one authoritative textbook, I am an author on the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 24 ·1· ·chapter for induction agents for anesthesia. ·2· ·Q.· · Now, as part of your involvement in this case, your ·3· ·declaration does outline materials that you've reviewed, in ·4· ·addition to the materials that you've outlined in your ·5· ·declaration, are there any other materials you've reviewed in ·6· ·preparation for this hearing? ·7· ·A.· · I reviewed the things that were sent around, the ·8· ·transcripts as well as a variety of published literature ·9· ·regarding paradoxical reactions related to benzodiazepines, 10· ·mechanisms of actions putative mechanisms of actions, et 11· ·cetera, in order to better inform my opinions. 12· ·Q.· · All right.· Focusing on the 2013, what we've referred 13· ·to for shorthand purposes the Midazolam Protocol, as a 14· ·starting point, what is the purpose of anesthesia? 15· ·A.· · Anesthesia is really defined as encompassing three 16· ·different characteristics:· Unconsciousness, number 1; being 17· ·insensate to noxious stimuli, number 2; and immobility, 18· ·number 3. 19· ·Q.· · All right.· I don't know if you were in the courtroom 20· ·when the judge raised the issue, but could you 21· ·differentiate -- let's just get right to that aspect to 22· ·this -- is there a difference between being unconscious and 23· ·insensate? 24· ·A.· · Yes, there is. 25· ·Q.· · Can you explain that to the Court. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 25 ·1· ·A.· · I can.· So being unconscious means that you are not ·2· ·responding to your external stimuli at that particular ·3· ·moment.· Being insensate means that you will not respond to a ·4· ·noxious stimuli when it's given.· So, for example, it's very ·5· ·simple when you're sleeping, you're sleeping.· And when ·6· ·something comes along and slaps you in the face, you're ·7· ·awake.· You were sleeping then someone slapped you in the ·8· ·face and now you're awake.· If you were truly unconscious and ·9· ·insensate, if someone came along and slapped you in the face, 10· ·you wouldn't wake up.· And if you were merely unconscious and 11· ·you provided a stimulus, you might wake up.· So the 12· ·difference is, and that's why anesthesia is defined as the 13· ·three of them, it's only -- you have to be both unconscious 14· ·and insensate to the next level of noxious stimuli that is 15· ·likely to occur.· Midazolam is not used to make someone 16· ·insensate.· And since we're getting right to the heart of the 17· ·matter, it does and can, but not reliably and absolutely will 18· ·make you unconscious in most cases, but not necessarily this 19· ·population.· But it will not make you insensate, and 20· ·therefore it is not used as an anesthetic.· It is used merely 21· ·to induce unconsciousness, which is not the same as inducing 22· ·anesthesia. 23· ·Q.· · In the context where you're dealing with whether or not 24· ·somebody is insensate, dealing with whether they're just 25· ·unconscious but not insensate, you talked about noxious Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 26 ·1· ·stimuli, and certainly would you agree -- are there different ·2· ·levels of noxious stimuli? ·3· ·A.· · There are markedly different levels of noxious stimuli, ·4· ·yes. ·5· ·Q.· · Where would you rate the second and third drugs used in ·6· ·the Midazolam Protocol, in terms of levels of noxiousness? ·7· ·A.· · I don't think that you could get any more noxious than ·8· ·the second and the third drugs.· I think they are the ·9· ·absolute most that you could imagine.· And, again, I try and 10· ·put this sometimes in lay terms.· I don't know if you've ever 11· ·been dunked in a pool, but if you have, you've had your head 12· ·held under water and you can't breathe and you're out of air 13· ·and you feel that sense of panic and anxiety and air hunger, 14· ·and then you can imagine that you couldn't even struggle or 15· ·make sense of that.· I don't know how more noxious that could 16· ·be, first of all. 17· · · · · · And in terms of potassium chloride, it's like 18· ·injecting, you know, you know, a burning chemical throughout 19· ·your entire body.· I believe that's what one of the inmates 20· ·suggested was happening in a previous execution.· It's -- an 21· ·incredibly terrible, painful drug, which is why the American 22· ·Veterinary Association demands that an appropriate surgical 23· ·plane of anesthesia, not unconsciousness, but a surgical 24· ·plane of anesthesia be induced, maintained, documented, and 25· ·verified by someone who understands anesthesia when Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 27 ·1· ·performing euthanasia in animals. ·2· ·Q.· · Now, in the Midazolam Protocol, midazolam is being used ·3· ·as the first drug.· And you have familiarized yourself with ·4· ·the court proceedings in the Muhammad case; is that correct? ·5· ·A.· · That is correct. ·6· ·Q.· · There were some statements made by experts in the ·7· ·Muhammad case about the use of midazolam in the clinical ·8· ·context and I want to ask you about that in a little bit more ·9· ·detail.· How actually is midazolam used in a clinical 10· ·context? 11· ·A.· · Midazolam is primarily used -- actually almost 12· ·exclusively used as a sedative and an amnestic, it is given 13· ·in front of in small doses, in front of other drugs that are 14· ·meant to provide anesthesia.· It is almost never used for 15· ·induction of anesthesia.· It's just not a very handy drug and 16· ·it's not particularly reliable compared to other drugs that 17· ·we have, nor is it particularly speedy, related to a drug 18· ·like -- compared to a drug like propofol.· So one doesn't 19· ·really see it used as an anesthetic.· It's really almost 20· ·always used in a 1- to 2-milligram, maybe a little bit more, 21· ·prior to a surgical procedure to calm someone's nerves, and 22· ·sometimes in areas like endoscopy, they may use that in 23· ·combination with a little bit of narcotic to provide some 24· ·amnesia, along with the narcotic, which then provides some 25· ·degree of pain relief.· It's very rarely used, just midazolam Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 28 ·1· ·alone, for any surgical procedure, nor is it supposed to be ·2· ·used for a surgical procedure. ·3· ·Q.· · With respect to the use of midazolam, what, if any, ·4· ·analgesic properties does it have? ·5· ·A.· · It does not have any analgesic properties. ·6· ·Q.· · Analgesic, meaning that it doesn't relieve pain? ·7· ·A.· · That is correct. ·8· ·Q.· · Why is that significant in the context of using ·9· ·midazolam as the first drug in this three-drug protocol? 10· ·A.· · Well, I think we really need to talk about the 11· ·mechanism of the drug in regard to this, because it's very 12· ·important, because there, having listened to the arguments 13· ·that have been made here, there's an assumption that the 14· ·drugs are equal.· They are not equal.· And it's important to 15· ·understand why they're not equal.· While they both may act on 16· ·GABA receptors, which they do, midazolam has a ceiling effect 17· ·and cannot, even does not, produce electroencephalographic 18· ·silence, meaning you cannot induce a coma and you cannot get 19· ·to a surgical plane of anesthesia with a benzodiazepine. 20· ·That's just the way it works. 21· · · · · · On the other hand, with the barbiturates you can 22· ·have -- and it has been used in surgery and in euthanasia for 23· ·animals -- can get to a surgical plane of anesthesia when 24· ·administered appropriately and with appropriate monitoring 25· ·with appropriate personnel.· And those two drugs are very Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 29 ·1· ·different because their effects are very different at the ·2· ·high dose ends, extremely different.· And to assume that ·3· ·they're equivalent would be to make a mockery of the, ·4· ·frankly, the entire laws of pharmacokinetics and ·5· ·pharmacodynamics.· It's just -- as I believe one of the ·6· ·lawyers, Ms. Rudenstine said, all drugs are not equivalent. ·7· ·Q.· · To what extent, if any, is midazolam appropriate to ·8· ·total anesthetic? ·9· ·A.· · It is inappropriate and is not approved by the FDA to 10· ·be a total anesthetic, and it is not used as a total 11· ·anesthetic ever. 12· ·Q.· · To what extent, if any, is midazolam ever used as a 13· ·sole drug to produce anesthesia? 14· ·A.· · It is not used as a sole drug to produce anesthesia, 15· ·which defined, again, unconsciousness, insensate and 16· ·immobile, because it will not make you insensate to a noxious 17· ·stimuli. 18· ·Q.· · What would be required in order for midazolam to be 19· ·part of an overall protocol where it would render the person 20· ·insensate? 21· ·A.· · Traditionally one uses either a fairly large dose of 22· ·narcotics or as an adjunct to it, or you would use a regional 23· ·anesthesia or a nerve block in addition to it.· Those would 24· ·be two ways that you would provide the insensate portion of 25· ·the anesthetic. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 30 ·1· ·Q.· · In trying to use midazolam so that it can be used in a ·2· ·way where there is no pain, is it the family of opioids ·3· ·that's one of the choices that's used? ·4· ·A.· · Yes, that is correct.· It was the benzodiazepine ·5· ·supplemented with opioids that has been used as an anesthetic ·6· ·combination. ·7· ·Q.· · In your declaration, one of the things that you talked ·8· ·about was the LD50 test, in the context of exploring whether ·9· ·or not midazolam in and of itself would produce death within 10· ·the context of this execution protocol.· Could you explain 11· ·what the LD50 test is, what its relevance is to this hearing 12· ·and your conclusions related to that? 13· ·A.· · Certainly. 14· · · · · · MR. BROWNE:· Your Honor, I would object to hearsay. 15· ·If he's going to reference a particular study or test, it's 16· ·not a matter that is in court, I can't cross-examine whoever 17· ·conducted the test.· It may be perfectly appropriate on 18· ·cross-examination, but not direct examination. 19· · · · · · THE COURT:· Mr. Norgard? 20· · · · · · MR. NORGARD:· Your Honor, the information regarding 21· ·that is part of Appendix Exhibit 3.· I mean it's, you know, 22· ·and this is something that the doctor relies on in terms of 23· ·drug testing by the manufacturer in this instance, I believe 24· ·it is Hospira. 25· · · · · · THE COURT:· What is it in Appendix 3 that references Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 31 ·1· ·the LD50 study? ·2· · · · · · MR. NORGARD:· What I'm going to do is have ·3· ·Ms. Rudenstine pull that out.· It is referenced in his ·4· ·declaration. ·5· · · · · · I'm going to come right back to that. ·6· ·BY MR. NORGARD: ·7· ·Q.· · In the Midazolam Protocol, it -- what amount of ·8· ·midazolam is called for? ·9· ·A.· · 500 milligrams. 10· ·Q.· · What, if any, scientific articles or studies are you 11· ·familiar with that have tested the effects of that amount of 12· ·midazolam in a human? 13· ·A.· · There are no studies whatsoever that have evaluated the 14· ·effects of that large a dose. 15· ·Q.· · What, if any, scientific studies or research has been 16· ·done that would demonstrate that that dose of midazolam 17· ·suppresses consciousness to the point of the person being 18· ·able to be insensate? 19· ·A.· · There is no data that suggests that the patient or 20· ·inmate would be insensate.· There is evidence that they would 21· ·not be since you cannot induce EEG silence through midazolam 22· ·alone and it has no analgesic properties. 23· ·Q.· · And could you explain that? 24· ·A.· · Yes.· As I said, there's a ceiling effect because of 25· ·the mechanism of midazolam which facilitates normal binding Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 32 ·1· ·of GABA to GABA receptors.· Barbiturates act similarly at low ·2· ·doses, but at high doses they actually act as ligands, ·3· ·meaning they bind to a receptor and actually augment and ·4· ·increase the activity at the GABA receptor in a way that the ·5· ·midazolam cannot.· And by doing so, they're able to tamp down ·6· ·electrical activity in the brain in a manner in which ·7· ·midazolam cannot.· And that's why they're different drugs ·8· ·with different properties, with different anesthetic end ·9· ·points, or in the case of midazolam, not an anesthetic end 10· ·point. 11· ·Q.· · If a person were only given midazolam, as they are as 12· ·part of this Florida's Midazolam Protocol, what would happen 13· ·when they are injected with very strong noxious stimuli? 14· ·A.· · It's very possible that they would awake and it would 15· ·be reasonable to assume that they might awaken from the 16· ·effects of the drug.· It depends -- again, the way that 17· ·unconsciousness works is it's a matter of input and 18· ·suppression.· So if something is suppressing your 19· ·consciousness and something is asking your consciousness to 20· ·enliven itself, right.· And we really don't know what 21· ·happens.· This is never -- like I said, you're in territory 22· ·that's never been studied that -- you know, we're basically 23· ·experimenting here without any end point or any methodology 24· ·or any evaluation.· It's very hard for me to make a comment. 25· ·I just don't believe that you can certainly -- with Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 33 ·1· ·reasonable certainty, expect that the inmate would neither ·2· ·feel nor be aware of what is going on when such an extreme ·3· ·stimulus is being applied.· I can't tell you -- I just don't ·4· ·think that we have that information. ·5· ·Q.· · When a person has been rendered unconscious through the ·6· ·use of 500 milligrams of midazolam, are they necessarily ·7· ·going to respond to something such as an eyelid tap or their ·8· ·shoulder being shaken? ·9· ·A.· · No, they may not, because, again, as I mentioned, there 10· ·is a balance between your level of unconsciousness and the 11· ·level of noxious stimuli that's asking the brain basically to 12· ·wake up.· So until you get to an extreme level, you may not 13· ·see that response.· And, you know, just for the record, this 14· ·is what we spend four years teaching people after medical 15· ·school how to do, which is how to evaluate that balance, how 16· ·to titrate in drugs, how to make sure that patients stay 17· ·asleep and are asleep.· We -- it's not that easy to just do 18· ·it, or it wouldn't take four years to train people. 19· ·Q.· · Now, in a context where somebody, for example, may be 20· ·unconscious and if you were to tap their eyelid or shake 21· ·their shoulder, you've indicated that would not necessarily 22· ·bring them out of that state of unconsciousness? 23· ·A.· · That is correct. 24· ·Q.· · Why is it that when somebody's unconscious, that 25· ·something such as smelling salts or an ammonia capsule does Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 34 ·1· ·bring them back so rapidly? ·2· ·A.· · It's a great question and it's exactly what we're ·3· ·saying, ammonia inhaled is incredibly noxious stimuli, ·4· ·nowhere near potassium chloride, nowhere near potassium ·5· ·chloride.· But it's noxious.· If you've ever had smelling ·6· ·salts, you kind of rear your head back to get away from the ·7· ·smell.· So there you have an input to the brain that's ·8· ·overcoming whatever is suppressing the brain, and that is ·9· ·actually how it all works in general across the anesthetic 10· ·continuum. 11· ·Q.· · Can you tell us about the risk of paradoxical reactions 12· ·through the use of midazolam? 13· ·A.· · Sure.· In general, the risk of paradoxical reactions is 14· ·well described for the entire class of benzodiazepines.· The 15· ·mechanism of action is not entirely understood, although 16· ·there are some theories which have been postulated, but 17· ·certainly subpopulations have a much higher risk of 18· ·paradoxical reactions; specifically, people with mental 19· ·disturbances, learning disorders, panic and anxiety 20· ·disorders, and people who get -- who are prone to combative 21· ·or impulsive behaviors and those who get higher doses.· In 22· ·some -- in a broad patient population, the incidence is 23· ·probably around 1 percent in select subpopulations.· Like 24· ·I've mentioned, it can go up to 60 percent.· And it depends 25· ·on the drug, the way that it's administered, and the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 35 ·1· ·underlying characteristics of the individual receiving the ·2· ·drug.· When it does not work, further administration does not ·3· ·work.· When -- the answer is actually things that appear to ·4· ·work is reversal of the effect of benzodiazepine.· It's not ·5· ·further large-dose administrations. ·6· ·Q.· · To what extent would a person who has chronic and ·7· ·extreme anxiety play into the issue of paradoxical reaction? ·8· ·A.· · Well, again, anybody who is prone to an anxiety ·9· ·disorder or panic attack has an increased risk of paradoxical 10· ·reactions. 11· ·Q.· · With respect to the barbiturates, do you have this type 12· ·of paradoxical reaction? 13· ·A.· · No.· That's another feature that's entirely different 14· ·between the two drugs.· For -- again, because we don't fully 15· ·understand the mechanism, although there are some theories 16· ·which are tied to genetics and previous exposures, et cetera, 17· ·barbiturates don't have that reaction.· So, again, the drugs 18· ·are very different in this.· You can be pretty certain that 19· ·if you give enough barbiturates, that eventually you will get 20· ·suppression of consciousness.· If you give enough 21· ·benzodiazepines, that is not a certainty.· As a matter of 22· ·fact, along those lines I think it's important to note that 23· ·in the course of my readings I came across a statement by the 24· ·Netherlands Euthanasia Task Force -25· · · · · · MR. BROWNE:· Your Honor, I'm going to object.· It's Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 36 ·1· ·not responsive to a question.· It would also be hearsay. ·2· · · · · · THE COURT:· Sustained. ·3· ·BY MR. NORGARD: ·4· ·Q.· · Doctor, as far as your testifying about scientific ·5· ·matters, you rely, first of all, on your training and ·6· ·experience; is that correct? ·7· ·A.· · That is correct. ·8· ·Q.· · And that would include your clinical training and ·9· ·experience; is that correct? 10· ·A.· · That is correct. 11· ·Q.· · Do you also rely on peer-studied, peer-reviewed studies 12· ·to also enhance your knowledge and information that you hold 13· ·about various drugs? 14· ·A.· · I do. 15· ·Q.· · You've referenced an article that you reviewed out of 16· ·Netherlands in the aspect of euthanasia.· Is that the type of 17· ·articles that you would review and read to familiarize 18· ·yourself with the effects of drugs as reported in other 19· ·scientific communities, particularly in a peer-reviewed 20· ·context? 21· ·A.· · Yes. 22· · · · · · MR. NORGARD:· At this point I'd ask that he be 23· ·allowed to answer that question. 24· · · · · · MR. BROWNE:· Same objection, Your Honor.· It's 25· ·hearsay.· The doctor can't bolster his testimony.· He said he Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 37 ·1· ·relied on material period, but he can't cite that material ·2· ·as -- for his testimony.· It's improper bolstering and it's ·3· ·hearsay. ·4· · · · · · THE COURT:· Mr. Browne, aren't experts allowed to ·5· ·rely on hearsay in forming their opinions if it is -- if the ·6· ·matters relied on are of the sort customarily relied on by ·7· ·experts in that field in forming opinions? ·8· · · · · · MR. BROWNE:· Most certainly, Your Honor.· And I'm ·9· ·not disputing that.· He can say based upon my research this 10· ·is my conclusion, but he can't go outside of the courtroom 11· ·and testify about a study that he read and reviewed. 12· ·Therefore, we're bringing in doctors who have authored that 13· ·study, and I think the rules are clear that he may not do 14· ·that.· That's hearsay. 15· · · · · · THE COURT:· Mr. Norgard? 16· · · · · · MR. NORGARD:· Your Honor, I think we also have to 17· ·look at the context in this particular hearing.· The purpose 18· ·is to provide the Court with sufficient information that you 19· ·at least on a very front-end level can determine if this case 20· ·is different than -- different than the Muhammad case.· We're 21· ·not dealing with a full-blown evidentiary hearing where, for 22· ·example, you know, we would, you know, potentially bring in, 23· ·based on my earlier question, for example, bring in somebody 24· ·from Hospira who could testify about their LD50 test. 25· · · · · · So that's the purpose of eliciting this, is to Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 38 ·1· ·provide the Court with information on which to make a ·2· ·preliminary decision, not in the context of this being a ·3· ·full-blown evidentiary hearing. ·4· · · · · · THE COURT:· I'm going to take the testimony on ·5· ·proffer, Mr. Browne.· I'll reserve ruling on it. ·6· ·BY MR. NORGARD: ·7· ·Q.· · So could you tell us what that study was about and why ·8· ·it's significant here? ·9· ·A.· · Well, the only reason I was bringing it up is that you 10· ·had asked a very specific question about what would you 11· ·expect with such a large dose and that it really hasn't been 12· ·used.· And one of the few places where a large dose of 13· ·midazolam has been considered was in the Netherlands for 14· ·euthanasia, and they came to the conclusions that it was an 15· ·unacceptable drug and did not recommend its use because of 16· ·its lack of reliability in either producing death by itself 17· ·or a -- you know, an absolute reliance on full 18· ·unconsciousness. 19· · · · · · So I was just bringing that up to state in response 20· ·to the very specific question, and that does inform my 21· ·opinion about whether or not the conclusions that I've drawn, 22· ·since there's so little data about large doses and I have no 23· ·personal knowledge, nor does anybody have -- any physician, 24· ·personal knowledge.· One can only try and form an opinion 25· ·based on the little that's out there, which include animal Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 39 ·1· ·studies and comments from euthanasia task forces, such as the ·2· ·one I've mentioned, because no one else has used such high ·3· ·doses. ·4· ·Q.· · Can a person be unconscious but nevertheless be in ·5· ·pain? ·6· ·A.· · Probably.· I would say that they can appear unconscious ·7· ·and be in pain.· I think that at some point the painful ·8· ·stimuli overwhelms the unconsciousness part and then it ·9· ·intrudes on consciousness.· That's one of those questions 10· ·that really has not been settled scientifically. 11· ·Q.· · And also there's a different level of experience for 12· ·the person when they reach a level of being insensate; is 13· ·that correct? 14· ·A.· · That is correct. 15· ·Q.· · Now, you indicated early on that you did review some 16· ·materials relative to other executions that have occurred 17· ·using midazolam.· You've outlined that in your declaration. 18· ·But with respect to a person who is unconscious, insensate 19· ·and anesthetized, is there going to be any movement? 20· ·A.· · No. 21· ·Q.· · What is the reasonable explanation as to why somebody 22· ·would move after being given midazolam? 23· ·A.· · Because they're not fully anesthetized. 24· ·Q.· · And to what, if any, extent would that indicate pain? 25· ·A.· · It would suggest that if there was nothing else going Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 40 ·1· ·on and the person receiving midazolam moved, that means that ·2· ·something is -- they're no longer unconscious.· Moving -- one ·3· ·does not move when one is unconscious.· That's more or ·4· ·less -- when laying still, there's nothing coming out of the ·5· ·brain to tell you to move voluntarily.· When you make a ·6· ·voluntary movement, that means you're no longer sufficiently ·7· ·unconscious or anesthetized to experience further noxious ·8· ·stimuli.· It's one of the key tenets that we try and teach ·9· ·our trainees as they learn how to do anesthesia.· If I saw 10· ·someone move on the table of the operating room, I would 11· ·never let the surgeon continue.· I would insist that they 12· ·stop until we had achieved an appropriate level of anesthesia 13· ·to allow them to do what they needed to do without causing 14· ·the patient further harm or feelings at that point in time, 15· ·because that's what the movement is indicating. 16· · · · · · I don't see that it would be any different with an 17· ·inmate who is inadequately anesthetized prior to the delivery 18· ·of a noxious stimulus such as we're talking about. 19· ·Q.· · Would a person, had they been given 500 milligrams of 20· ·midazolam, if they were totally unconscious, fully 21· ·anesthetized and insensate, would they open their eyes? 22· ·A.· · No. 23· ·Q.· · Why, if given midazolam, followed up by the two other 24· ·drugs of the protocol, would there be a reported opening of 25· ·an eye -- of the eyes? Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 41 ·1· ·A.· · Because the inmate was then conscious and experiencing ·2· ·the agony of receiving the other two drugs.· As I've ·3· ·mentioned, there's a -·4· · · · · · MR. BROWNE:· Your Honor, I object, objecting to ·5· ·speculation and lack of foundation.· There was a single ·6· ·report of one eye opening without any associated movement, ·7· ·and I don't believe the doctor's testimony is anything but ·8· ·speculation on that point. ·9· · · · · · THE COURT:· I'll overrule your objection. 10· ·BY MR. NORGARD: 11· ·Q.· · Let's even -- Doctor, let's even say -- let's say one 12· ·eye even opened.· What would that indicate to you? 13· ·A.· · It's still a voluntary muscular movement.· Eyes don't 14· ·open by accident.· And so, again, if you ask me my 15· ·professional opinion, having done thousands of anesthetics, 16· ·having trained more than -- residents than almost anybody 17· ·else, I would inform them, you and everyone else, that they 18· ·needed to stop and ascertain that the patient does -- this is 19· ·not a patient we are talking about -- that the patient -20· ·needed to ascertain and make darn sure that the patient was 21· ·fully anesthetized.· And things change over the course of 22· ·time.· And, again, we don't really understand what happens 23· ·when you give such large doses of neuronally active drugs. 24· ·There's all sorts of issues that, again, we don't know about, 25· ·which include acute resistance to the drugs, changes in Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 42 ·1· ·receptor or concentrations, all sorts of things that we -·2· ·again, never been studied, would be pure speculation, but its ·3· ·use is pure speculation because there's an assumption here ·4· ·that a larger dose results in a larger effect.· And as I have ·5· ·repetitively said, there's a ceiling effect with ·6· ·benzodiazepines because of the manner in which they work.· As ·7· ·a matter of fact, they're prescribed precisely because -- for ·8· ·use in the population because there's a ceiling effect.· It's ·9· ·hard to get to a point where you are anesthetized or where 10· ·you can actually -- it's really hard to kill yourself with 11· ·benzodiazepines because they have this ceiling effect.· And 12· ·so, again, to assume that they're going to work flawlessly in 13· ·a dose untested with a patient population that is known to be 14· ·resistant to or have paradoxical reactions to that particular 15· ·drug, really, is -- amounts to I think unwise 16· ·experimentation. 17· · · · · · MR. NORGARD:· Your Honor, at this point I've got a 18· ·few additional questions before I wrap up, but I do want to 19· ·get back to the LD50 test and the State's objection related 20· ·to that.· Obviously, as I stated in the context of their 21· ·other objection, we're not here with a full-blown evidentiary 22· ·hearing. 23· · · · · · THE COURT:· Did you locate the reference in the 24· ·appendix? 25· · · · · · MR. NORGARD:· I thought it was in the appendix. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 43 ·1· ·I've not been able to locate it, so what I would like to do ·2· ·is proffer that, ask him about it, ask him about the source ·3· ·of that information. ·4· · · · · · THE COURT:· I'll allow it in the proffer. ·5· · · · · · MR. NORGARD:· Particularly in the context of the ·6· ·Muhammad situation where there is evidence that midazolam ·7· ·alone would kill.· This doctor does have opinions based on ·8· ·information, that's the purpose, so thank you, sir. ·9· ·BY MR. NORGARD: 10· ·Q.· · Doctor, what is an LD50 test? 11· ·A.· · That's the lethal dose at which 50 percent of those 12· ·given that dose will die from the single drug. 13· ·Q.· · As part of Food and Drug Administration approval 14· ·processes, are studies done to try to determine things like 15· ·an LD50? 16· ·A.· · Yes, the LD50 is routinely determined for all drugs 17· ·brought onto the American market, to my knowledge. 18· ·Q.· · And what is that testing done on? 19· ·A.· · It's traditionally done on small mammals, such as rats 20· ·and mice. 21· ·Q.· · And what does LD50 mean? 22· ·A.· · It means that when you give a specific dose, an 23· ·escalating dose, at what point will 50 percent of the animals 24· ·pass away and 50 percent survive. 25· ·Q.· · And do these type of tests traditionally develop some Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 44 ·1· ·type of bell curve, as far as extremes? ·2· ·A.· · Of course.· As with all biologic systems, there's a ·3· ·normal distribution of responsiveness, which means that some ·4· ·people are on the extreme side and are very, very resistant, ·5· ·some people are on the sensitive side and require lower doses ·6· ·and, hence, this is a statistical description.· If you really ·7· ·wanted to have the science, you could go into the data and ·8· ·see how wide a distribution there was for that particular ·9· ·drug, but its main use is to show the difference between an 10· ·effective dose, meaning in this case sedation or anxiolysis, 11· ·which is reducing anxiety, and the death dose.· And that's a 12· ·measure usually of the safety of administering the drug to a 13· ·human population. 14· ·Q.· · Can you explain what the results of the LD50 test 15· ·regarding midazolam were and how that would translate and 16· ·apply to a human? 17· ·A.· · All right.· Since we don't have any LD50 doses for 18· ·humans, although I say we do have some statements that can't 19· ·really rely on it to kill anybody, from other -- reliably 20· ·kill people from other task forces, the LD50 in rats and 21· ·mice, approximately, I believe, 50 milligrams per kilogram -22· ·it's in the FDA literature -- which is significantly higher 23· ·than the dose being administered to the inmates on a kilogram 24· ·basis and with no other or further information, one can only 25· ·assume that the dose of midazolam as administered by the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 45 ·1· ·State during execution will not necessarily result, to a ·2· ·degree of reasonable probability, in death by itself. ·3· ·Q.· · All right.· In your declaration, you did certain ·4· ·calculations to arrive at a potentially lethal dose.· Could ·5· ·you explain how you did those calculations? ·6· ·A.· · I just took the weight of the inmate times the known ·7· ·lethal dose that would kill 50 percent of the animals tested ·8· ·and came up with a number, which in the case of the accused, ·9· ·would be approximately 4,000 milligrams. 10· ·Q.· · So higher than the 500 milligrams called for in this 11· ·protocol? 12· ·A.· · Correct.· I would point out that the relevant -- you 13· ·know, whether or not the mice data apply exactly to humans is 14· ·not known.· There's just no -- there's no better data out 15· ·there, so one can only rely on the best data that there is. 16· ·Q.· · Do you have an opinion to a reasonable medical degree 17· ·of certainty as to whether the Midazolam Protocol creates a 18· ·risk that an inmate would not be fully anesthetized?· And by 19· ·that I mean insensate and unconscious. 20· ·A.· · I do. 21· ·Q.· · And what is that opinion? 22· ·A.· · I believe that the use of midazolam as an anesthetic 23· ·and sole anesthetic, can provide a surgical plane of 24· ·anesthesia which is necessary for the administration of 25· ·caustic chemicals is not being accomplished.· And I believe Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 46 ·1· ·that because there have been reported movements and a lack of ·2· ·insensate characteristics and a lack of immobility, and so ·3· ·the theoretical knowledge I bring to this and the factual ·4· ·descriptions of the previous executions, which admittedly are ·5· ·secondhand because I have not observed them myself, would ·6· ·suggest that my theories are correct. ·7· ·Q.· · Do you also have an opinion to a reasonable medical ·8· ·degree of certainty, based on the Midazolam Protocol, given ·9· ·that it's as a predicate to this, it's your opinion that it 10· ·does not adequately and fully anesthetize the person so that 11· ·they are unconscious and insensate, given the nature and 12· ·protocol of the other two drugs, what is your opinion within 13· ·a reasonable degree of medical certainty as to whether there 14· ·would be a substantial risk and unnecessary risk of serious 15· ·harm and pain? 16· ·A.· · I believe there is a substantial risk of substantial 17· ·harm and pain when the other two drugs are administered. 18· ·Q.· · In the context of this three-drug protocol, the second 19· ·drug being the paralytic, based on your review of that 20· ·protocol, is there -- what, if any, medical purpose is served 21· ·by that? 22· ·A.· · There's no purpose whatsoever in the delivery of a 23· ·paralytic, which is why it's banned. 24· · · · · · MR. BROWNE:· Your Honor, I'm going to object at this 25· ·time.· This issue has been resolved by the Supreme Court. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 47 ·1· ·It's not relevant to the limited remand.· The Supreme Court ·2· ·has recognized the reasons in Baze for the administration of ·3· ·the paralytic.· That Supreme Court opinion has not been ·4· ·reversed. ·5· · · · · · THE COURT:· Mr. Norgard? ·6· · · · · · MR. NORGARD:· Your Honor, I think you can't look at ·7· ·lethal injection protocols without looking at the overall ·8· ·context in which it's being given, not just a second drug or ·9· ·third drug, but the first, second and third drugs.· And in 10· ·the context of the Midazolam Protocol, the paralytic is also 11· ·deficient because of that second -- as a second prong in this 12· ·test, and that midazolam is already not doing what it's 13· ·supposed to be, and then you throw in this paralytic. 14· · · · · · MR. BROWNE:· Objection to counsel's commentary. 15· · · · · · THE COURT:· Let me ask you, Mr. Browne, does not the 16· ·precedential value of the authorities cited presuppose a 17· ·factual alignment between this case and that? 18· · · · · · MR. BROWNE:· To a limited extent, Your Honor, but 19· ·the Courts have repeatedly rejected challenges that an inmate 20· ·can simply argue that a drug is not necessary, based on Baze. 21· ·That's binding precedent.· We also have a consciousness check 22· ·in court.· Before the second and third drugs are 23· ·administered, I think Baze resolved the issue.· Now I have no 24· ·doubt the doctor has strong opinions on lethal injection. 25· ·He's certainly an opponent of it.· However, I don't think Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 48 ·1· ·he -- his opinion on what the best practices are or might be ·2· ·are relevant to this proceeding.· And given the compelling ·3· ·case law, it's certainly not relevant. ·4· · · · · · THE COURT:· I'm going to overrule the objection and ·5· ·I'll allow you to argue the precedential value.· And your ·6· ·point is well taken.· The reason we are here on Muhammad is ·7· ·because of the kind of objection that you raised and the kind ·8· ·of concerns that I have about what the precedential value of ·9· ·the preceding findings and holdings of the Court are.· So 10· ·I'll hear your argument, but I'm going to overrule the 11· ·objection. 12· ·BY MR. NORGARD: 13· ·Q.· · All right.· Could you -- I'd asked you what the purpose 14· ·of the paralytic would be and you were starting to answer 15· ·that.· I believe you said none; is that correct? 16· ·A.· · Well, actually the reason that the paralytic is used is 17· ·to hide the likely convulsive response to the delivery of 18· ·potassium chloride, to mask pain, and to make it all seem 19· ·humane even when it's not. 20· ·Q.· · All right.· And in terms of its administration 21· ·resulting in harm to the person being executed -- this is in 22· ·the context of the Midazolam Protocol -- given that you're in 23· ·this protocol, using the midazolam as the first drug, can 24· ·this paralytic, this paralytic cause pain in the context of 25· ·the use of midazolam as the first drug? Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 49 ·1· ·A.· · So, again, the -- it's -- again, we -- I'm on ·2· ·theoretical grounds here, as would anybody who would be ·3· ·answering these questions, because we can't go back and ask ·4· ·the inmate what they felt.· But I go back to what it feels ·5· ·like to have your head held under the water in a pool when ·6· ·you're a kid and someone is dunking you and you're dying for ·7· ·air, and you tell me whether or not you think a drug that has ·8· ·a ceiling effect would be able to stop that feeling of ·9· ·suffocation.· I would have to say I doubt it.· So the answer 10· ·is no, it wouldn't -- in the context of midazolam, given the 11· ·fact it cannot induce EEG silence and it does not make you 12· ·insensate, I believe that it's entirely possible that that 13· ·level of stimulus would overcome the effect of the drug. 14· ·Q.· · And now in the context of using sodium thiopental or 15· ·pentobarbital, what type of drugs are those? 16· ·A.· · Those are barbiturates. 17· ·Q.· · I'll just make this as simple as I can.· Are sodium 18· ·thiopental and pentobarbital a substantially different drug 19· ·than midazolam hydrochloride? 20· ·A.· · Yes. 21· ·Q.· · And if you could just briefly amplify on that. 22· ·A.· · As I've said, barbiturates have a different mechanism 23· ·of action, and at high doses have a distinctly different 24· ·pharmacodynamic effect than midazolam.· That means continued 25· ·use and administration of barbiturates leads to coma and EEG Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 50 ·1· ·silence, and that would be defined as true anesthesia and ·2· ·being both unconscious and insensate.· Midazolam does not ·3· ·achieve that and cannot achieve that, because that is a ·4· ·different mechanism of action. ·5· ·Q.· · In your opinion, is the use of sodium thiopental or ·6· ·pentobarbital and then substituting midazolam, is that the ·7· ·simple substitution of one anesthetic for another? ·8· · · · · · MR. BROWNE:· Asked and answered, Your Honor. ·9· · · · · · THE COURT:· Sustained. 10· · · · · · MR. NORGARD:· All right.· If I could just have one 11· ·moment, Your Honor. 12· · · · · · Tender the witness, Your Honor. 13· · · · · · THE COURT:· Thank you. 14· · · · · · Mr. Browne? 15· · · · · · MR. BROWNE:· Your Honor, if I might indulge the 16· ·Court for a five-minute break? 17· · · · · · THE COURT:· Sure.· We'll stand in recess for five 18· ·minutes. 19· · · · · · MR. BROWNE:· Thank you, Your Honor. 20· · · · · · COURT SECURITY OFFICER:· All rise. 21· · · · · · (Recess taken from 10:28 a.m. to 10:41 a.m.) 22· · · · · · COURT SECURITY OFFICER:· All rise.· Please be 23· ·seated. 24· · · · · · THE COURT:· Mr. Browne?· Where is Dr. Lubarsky? 25· · · · · · If you would please retake the stand. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 51 ·1· · · · · · Mr. Browne, you may inquire. ·2· · · · · · MR. BROWNE:· Thank you, Your Honor. ·3· · · · · · · · · · ·CROSS-EXAMINATION ·4· ·BY MR. BROWNE: ·5· ·Q.· · Doctor, you have consulted with a number of defense ·6· ·attorneys on the matter of lethal injection; would that be ·7· ·correct? ·8· ·A.· · I would have to have ask you what a number means.· More ·9· ·than one, yes. 10· ·Q.· · And in fact, in more than one state; would that be 11· ·correct? 12· ·A.· · That is correct. 13· ·Q.· · Could you tell the Court how many different states you 14· ·have so consulted with defense attorneys or been contacted? 15· ·A.· · Well, I've agreed to consult for two and I've been 16· ·contacted by numerous. 17· ·Q.· · Okay.· And have you actually testified in any state 18· ·regarding lethal injection? 19· ·A.· · In the two states I agreed to consult with, yes. 20· ·Q.· · And have you consulted with any prosecutors who are 21· ·defending a lethal injection protocol? 22· ·A.· · They have not asked my help. 23· ·Q.· · Now, Doctor, you use midazolam virtually every day in 24· ·your practice; is that correct? 25· ·A.· · That would be correct. 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Hearing, Evidentiary on 02/05/2014 Page 52 ·1· ·Q.· · And as an anesthesiologist, tell the Court why you ·2· ·would administer this drug. ·3· ·A.· · It provides some degree of anxiolysis and an amnestic ·4· ·to further events if given in an appropriate quantity. ·5· ·Q.· · In other words, he wouldn't have any -- the patient ·6· ·would not have any recollection of the unpleasant events that ·7· ·might have occurred? ·8· ·A.· · No, the patient would have no recollection of the ·9· ·process, which is not necessarily unpleasant.· If there were 10· ·an unpleasant event, they would probably remember that.· Or 11· ·they might remember that. 12· ·Q.· · Well, it certainly has amnesic qualities, as you've 13· ·testified to? 14· ·A.· · That's correct. 15· ·Q.· · For a lay person, that means it interferes with his 16· ·memory? 17· ·A.· · Well, it does interfere with memory if there's no 18· ·reason otherwise for that memory to be impacted.· What we're 19· ·talking about is we use it to ease a patient's anxiety about 20· ·a non-noxious event, which is a stretcher ride from the preop 21· ·holding area to the operating room.· That's what we use it 22· ·for.· We don't use it to -- and nor would we expect that if a 23· ·patient suffered harm or pain with those doses that we 24· ·routinely use, that they would not have a memory of that. 25· ·Q.· · Well, Doctor, you typically use a sedative dose; is Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 53 ·1· ·that correct? ·2· ·A.· · That's correct. ·3· ·Q.· · And describe for the Court what quantity a sedative ·4· ·dose would be. ·5· ·A.· · Usually it's in the 2- to 5-milligram range for an ·6· ·adult. ·7· ·Q.· · Okay. ·8· ·A.· · Depending on their sickness level, their level of ·9· ·coexisting diseases. 10· ·Q.· · Right.· So if in your line of work as an 11· ·anesthesiologist, the amount of midazolam needed to render, 12· ·say, a grown man who weighs 180 pounds unconscious, is known 13· ·and quantifiable? 14· ·A.· · That is correct. 15· ·Q.· · So, in other words, you can give an amount and can you 16· ·calculate that amount in court that would be required to 17· ·render an individual unconscious? 18· ·A.· · I can calculate an amount that statistically would 19· ·render most people unconscious but not all people 20· ·unconscious. 21· ·Q.· · And what amount would that be, Doctor? 22· ·A.· · It would range from .3 to .6 milligrams per kilo, 23· ·assuming that you had an 82-kilogram person, which I believe 24· ·is 180 pounds, give or -- right, about 2.2.· Yeah, it's just 25· ·about 82 kilo.· At .3 to .6, right, you're looking at the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 54 ·1· ·range of approximately 25 to 50 milligrams, to render someone ·2· ·who was normally not susceptible to extremes of other ·3· ·stimuli, unconscious.· And by that I mean, no one is coming ·4· ·to the operating room with the same level of fear, anxiety or ·5· ·adrenaline levels that a condemned inmate is going to the ·6· ·execution chamber with.· So I think the extrapolation of ·7· ·those doses is both scientifically inaccurate and a false ·8· ·comparison.· So if you're asking me what it would do to ·9· ·induce a level of unconsciousness in a patient who had faith 10· ·and trust in the physicians that were taking care of them, I 11· ·can tell you that.· I cannot tell you what that dose would be 12· ·outside of those circumstances. 13· ·Q.· · Okay.· So, Doctor, if you were giving me midazolam and 14· ·you gave me 50 milligrams, it is quite likely I will be 15· ·rendered unconscious? 16· ·A.· · Yes. 17· ·Q.· · I'm a little over 180 pounds. 18· ·A.· · That is correct.· And you don't have a combative or 19· ·impulsive personality that I know of, nor psychiatric 20· ·disturbance. 21· ·Q.· · It's early in the cross-examination, Doctor. 22· · · · · · Now, Doctor, you mentioned paradoxical reaction and 23· ·I believe you mentioned that the possibility in general of 24· ·such a reaction to a benzodiazepine is in the area of 25· ·1 percent among the general population? 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Hearing, Evidentiary on 02/05/2014 Page 55 ·1· ·A.· · Specifically for midazolam.· That's actually, in low ·2· ·doses, in patient populations without high degrees of ·3· ·susceptibility, just you, for example, like I said, assuming ·4· ·that you're a totally normal guy, yeah, you'd have about a 1 ·5· ·in 100 chance of having a paradoxical reaction. ·6· ·Q.· · And how would that manifest itself normally, Doctor? ·7· ·A.· · Just really don't know what causes it.· And we have a ·8· ·great deal of difficulty studying it, for -- except in the ·9· ·susceptible populations.· It's hard to say what you would 10· ·have happen.· In general, one does not necessarily become 11· ·unconscious with it, although it's unclear if you could, and 12· ·then have a reversal of the unconsciousness.· I just haven't 13· ·really seen a description, per se.· You might become sedated 14· ·and then agitated.· You might just become immediately 15· ·agitated.· You might be restless.· You might not be restless. 16· ·There have been some variety of different dystonic, meaning 17· ·discoordinated movements, or just simply kind of rigidity, 18· ·been described as a variety of different types of paradoxical 19· ·reactions not very well described.· We tend to not focus on 20· ·those, quite frankly. 21· ·Q.· · Doctor, but it's pretty well described in the 22· ·literature, right, the paradoxical reaction can be 23· ·combativeness, talkativeness.· Clearly, the individual is not 24· ·reacting as an expected -25· ·A.· · That's correct. 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Hearing, Evidentiary on 02/05/2014 Page 56 ·1· ·Q.· · -- in a paradoxical reaction. ·2· ·A.· · Usually they're not reacting as expected and they're ·3· ·not fully sedated, correct. ·4· ·Q.· · This is normally apparent to a practitioner, a nurse in ·5· ·the room who administered midazolam? ·6· ·A.· · Not always.· And so it's been well described where ·7· ·people -- you know, they misread a lack of effectiveness and ·8· ·they -- because the -- they're just not going to sleep or ·9· ·they're not becoming sedated, and it's not immediately clear 10· ·that they're having a paradoxical reaction, and they continue 11· ·to administer more and more and then it gets worse.· So 12· ·nobody's ever studied a paradoxical reaction or what might 13· ·potentially happen in the face of large bolus injection 14· ·because no one gives midazolam as a large bolus injection. 15· ·Q.· · Well, Doctor, let's go for the most likely effect would 16· ·be someone moving around, agitation, talkativeness, that 17· ·likely effect, that's the most likely of the paradoxical 18· ·reactions that have been recorded in the scientific 19· ·literature.· Would you agree? 20· ·A.· · I don't think talkativeness is actually one of them, to 21· ·be quite honest with you.· I believe excitability and a lack 22· ·of sedation and some discoordinated movements, I believe 23· ·those are probably the more common ones. 24· ·Q.· · So then you're talking about another possibility below 25· ·that as a paradoxical reaction that someone might actually be Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 57 ·1· ·appearing unconscious but not showing any signs of a ·2· ·paradoxical reaction.· So you would agree that's a much ·3· ·smaller probability? ·4· ·A.· · That would be less likely, yes. ·5· ·Q.· · And, Doctor, would you agree that in general the ·6· ·greater the amount of drug given and the higher the dose, the ·7· ·greater the anesthetic depth in general? ·8· ·A.· · No.· That's what I've been saying.· No, not for ·9· ·midazolam.· The answer is absolutely no. 10· ·Q.· · Okay.· So if you were going to sedate me with midazolam 11· ·and you gave me what you said, 50 milligrams, which is the 12· ·top end of the range, you would reasonably expect you could 13· ·give me 100 milligrams and there would be no additional 14· ·effect on me? 15· ·A.· · That's correct. 16· ·Q.· · So, Doctor, how many times have you given a -17· ·A.· · Probably.· I mean, I don't -- I've never given anybody 18· ·50, I've never given anybody 100, because we don't usually do 19· ·that, right?· We wouldn't get to those levels.· If it's not 20· ·working, we would switch drugs.· So when you say I would give 21· ·you, I just want to make that clear.· We don't use those 22· ·types of drugs in those doses in human beings in the medical 23· ·field, to my knowledge. 24· ·Q.· · Doctor, have you ever induced anyone into 25· ·unconsciousness with midazolam in your practice? 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Hearing, Evidentiary on 02/05/2014 Page 58 ·1· ·A.· · Yes. ·2· ·Q.· · How often? ·3· ·A.· · Actually not very frequently because I don't like the ·4· ·way that it works.· It doesn't -- first, it's not as quick as ·5· ·propofol, it's not as accurate as propofol, it's not as ·6· ·reliable as propofol.· And so why would one -- and it has a ·7· ·much longer residual effect, if you will, than propofol, ·8· ·which is designed to be quick on and quick off.· And there's ·9· ·a reason why nobody -10· ·Q.· · Stop -- Doctor, let me stop you there.· You would agree 11· ·that other practitioners in your field do use it to induce 12· ·anesthesia? 13· ·A.· · Almost never.· That is not correct. 14· ·Q.· · Did you -15· ·A.· · I want to make that clear.· You made a statement. 16· ·Q.· · Right. 17· ·A.· · I'm saying that that's not correct. 18· · · · · · THE COURT:· Let me stop you just a moment.· What 19· ·does the term induce anesthesia mean?· Does that mean that 20· ·you are rendering the person insensate? 21· · · · · · THE WITNESS:· No, it means you're rendering the 22· ·patient unconscious, and that's different.· And so -- so 23· ·the -- again -- and I apologize, there's -- even in our own 24· ·field there is a looseness with the term, but the induction 25· ·of unconsciousness is the first step towards a plane of Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 59 ·1· ·surgical anesthesia.· That's why, again, the use of the ·2· ·midazolam is not approved by the FDA and not used by any ·3· ·practitioner of anesthesia whatsoever in any way, shape or ·4· ·form for any patient as the sole drug to produce a surgical ·5· ·plane of anesthesia.· It's used to start the process toward ·6· ·the surgical plane of anesthesia, by inducing ·7· ·unconsciousness. ·8· ·BY MR. BROWNE: ·9· ·Q.· · Now, you would agree, Doctor, when you were performing 10· ·perhaps major surgery, you would also add an opiate, correct, 11· ·and it would have pain-relieving properties? 12· ·A.· · You would be required to add additional drugs.· It 13· ·might be an opiate, it might be different drugs. 14· ·Q.· · And that would also be a consideration for the 15· ·recovery, right?· You want to make it as easy as possible and 16· ·painless as possible for the patient, after having major 17· ·surgery; is that correct? 18· ·A.· · That's correct. 19· ·Q.· · But, Doctor, you indicated you were familiar with the 20· ·testimony from the Muhammad evidentiary hearing that was held 21· ·in state court? 22· ·A.· · I read it and my level of familiarity is that I've 23· ·reviewed it.· I wouldn't say I've memorized it. 24· ·Q.· · And you've reviewed Dr. Heath, who was called by the 25· ·defense, his testimony in that case; is that correct? Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 60 ·1· ·A.· · I do recall that. ·2· ·Q.· · And he testified, again, as a board-certified ·3· ·anesthesiologist -- and, Doctor, you're board certified; is ·4· ·that correct? ·5· ·A.· · That would be correct. ·6· ·Q.· · Okay.· That he uses midazolam frequently in his ·7· ·practice and that midazolam would safely and effectively ·8· ·render you completely ablate consciousness at higher doses ·9· ·within two minutes.· Are you familiar with his testimony? 10· · · · · · MR. NORGARD:· Your Honor, I have an objection.· He's 11· ·basically asking this expert to comment on the credibility of 12· ·another witness. 13· · · · · · THE COURT:· He asked whether he was familiar with 14· ·it. 15· · · · · · MR. NORGARD:· Right. 16· · · · · · THE COURT:· I'm going to allow that question. 17· · · · · · MR. NORGARD:· Okay. 18· · · · · · THE WITNESS:· I'm familiar with that. 19· ·BY MR. BROWNE: 20· ·Q.· · And so it's -- if he testified to that effect, is it 21· ·possible that physicians and anesthesiologists in New York 22· ·operate under different standards than you, who reside in 23· ·Miami? 24· ·A.· · No.· It's also possible that people might not be 25· ·exactly correct.· They don't operate under different Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 61 ·1· ·standards.· They might come to different conclusions.· All ·2· ·conclusions are not necessarily correct. ·3· ·Q.· · Now, you indicated, Doctor, that an eye opening -- and ·4· ·let's be clear, that referred to the Muhammad execution; ·5· ·right? ·6· ·A.· · That's when the eye -- if that's the person for whom ·7· ·the eye opening occurred, yes. ·8· ·Q.· · And what information were you given by about the ·9· ·Muhammad execution? 10· ·A.· · I would have to review my notes, and it's -- I've 11· ·elicited the transcripts that I read, and I think there's a 12· ·log of the execution, but honestly, I'd have to go back.· And 13· ·if you want to take a moment, I can tell you exactly the 14· ·specific things that were reviewed. 15· ·Q.· · Well, let's see if we could continue on, Doctor.· And 16· ·if we need to, I think we can probably do that. 17· ·A.· · Sure. 18· ·Q.· · Doctor, do you know at what point his eye opened during 19· ·the execution?· Phase 1, phase 2 or phase 3? 20· ·A.· · I believe it was after the -- either -- again, I'm 21· ·going to have to refer to the specific log of the exact 22· ·timing of when the eye opened up. 23· ·Q.· · Well, let's assume it was immediately prior to the 24· ·pronouncement of death.· Do individuals who pass away or die, 25· ·do their eyes sometimes open? 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Hearing, Evidentiary on 02/05/2014 Page 62 ·1· ·A.· · Do their eyes sometimes open when they're dead?· Most ·2· ·people die, their eyes are closed, but I guess you could be ·3· ·dead with your eye open, if your eyes were open.· I don't ·4· ·know of someone who had closed eyes, then opened their eyes ·5· ·when they die.· I'm not familiar with that. ·6· ·Q.· · So it's possible it could be a reaction to simply dying ·7· ·and the muscles releasing.· Is that possible? ·8· ·A.· · I would find that difficult to -- you'd have to explain ·9· ·the mechanism to me. 10· ·Q.· · Was there any movement associated with a simple eye 11· ·opening that you had described to you in the Muhammad 12· ·execution? 13· ·A.· · I'm sorry, could you repeat that? 14· ·Q.· · Was there any movement that was reported to you, other 15· ·than an eye opening, in the Muhammad execution? 16· ·A.· · In the Muhammad -- so, again, the various reports of 17· ·the executions, whether it's eye opening or head movement -18· ·Q.· · Well, let me stop you there.· You have no report of 19· ·Mr. Muhammad moving his head during his execution, do you? 20· ·A.· · No. 21· ·Q.· · So that would refer to a different execution, 22· ·Mr. Powell? 23· ·A.· · Yes. 24· ·Q.· · We'll get to that in a moment. 25· ·A.· · It refers to the fact that when movement occurs, one Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 63 ·1· ·can't take that as an isolated circumstance.· One has to say, ·2· ·in the sum of all the available evidence, looking at all the ·3· ·people who have received these extremely high doses of ·4· ·midazolam, was it absolutely clear that the patient was ·5· ·unconscious throughout the procedure.· And without an ability ·6· ·to look at any monitors, without having personally observed ·7· ·the events, and without the benefit of any data whatsoever ·8· ·about the use of these drugs in this particular population ·9· ·and these particular doses, I can only make the conclusion 10· ·that the repetitive report of movement, eye movement, head, 11· ·gasping, et cetera, that's been reported through the use of 12· ·these drugs, suggests that they're not working as intended, 13· ·which is to guarantee unconsciousness throughout the entire 14· ·process of the lethal injection.· And the reason that I 15· ·cannot tell you that is because you have ablated the ability 16· ·of the casual observer, through the use of the second drug in 17· ·the cocktail, vecuronium bromide, to allow anybody to make 18· ·any reasonable conclusions, because you're masking what is 19· ·going on. 20· · · · · · So when you say could it be, could it be, well, 21· ·there is a lot of things that it could be.· If we didn't have 22· ·the vecuronium bromide in place, if we had appropriate 23· ·monitors in place, if we had appropriate observers in place 24· ·and we had appropriate quality control and observers of the 25· ·process before we tried it out and experimented on human Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 64 ·1· ·beings, then we might be able to draw a conclusion about ·2· ·whether or not that eye opening was or was not significant. ·3· ·Q.· · Now, Doctor, you mentioned the gasping.· Are you ·4· ·referring to the Ohio execution of Inmate McGuire; is that ·5· ·correct? ·6· ·A.· · I am. ·7· ·Q.· · That's the case in which you testified; is that ·8· ·correct? ·9· ·A.· · I don't believe I testified in the McGuire case. 10· ·Q.· · You were deposed by the State of Ohio; is that correct? 11· ·A.· · I was deposed by the State of Ohio as relates to the 12· ·Post case. 13· ·Q.· · Okay.· Okay.· So maybe it was not McGuire.· But it did 14· ·deal with Ohio's protocol and their method of execution; is 15· ·that correct? 16· ·A.· · It did, but I believe it changed between Post and 17· ·McGuire. 18· ·Q.· · And are you aware that in McGuire they only used 5 to 19· ·10 milligrams of midazolam followed by an opiate? 20· ·A.· · You know, so I am familiar with the description of the 21· ·case, but to be honest with you, off the top of my head, I'm 22· ·not -- I can't really can't comment on that unless you give 23· ·me the protocol in front of me and ask me my official opinion 24· ·about that particular protocol, which I'd be happy to 25· ·provide. 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Hearing, Evidentiary on 02/05/2014 Page 65 ·1· ·Q.· · Well, let's assume they don't administer the second and ·2· ·third drugs and their protocol calls for 5 to 10 milligrams ·3· ·of midazolam followed by an overdose of opiate.· Let's assume ·4· ·that's the case.· That's not at all the same protocol as ·5· ·Florida has, is it? ·6· ·A.· · No.· What it is is actually a contradiction, if you ·7· ·will, to testimony regarding the Muhammad case that ·8· ·10 milligrams would reliably make you unconscious. ·9· ·Q.· · Well, you don't know that Mr. McGuire was conscious, do 10· ·you?· He was breathing heavily.· Is that correct? 11· ·A.· · Gasping for air, sure.· I don't think breathing heavily 12· ·was the description. 13· ·Q.· · And now we're going to talk a little bit about 14· ·Mr. Happ, because this is -15· ·A.· · But he wasn't apparently unconscious, because he was 16· ·moving around; right?· Wasn't that the description as well, I 17· ·believe? 18· ·Q.· · Gasping for air is the description that I have. 19· ·A.· · So, again, I don't have the end point -- I wasn't asked 20· ·to comment on nor review all the materials related to the 21· ·McGuire execution.· So I think that asking my expert opinion 22· ·about that particular topic is difficult for me. 23· ·Q.· · Well, did you refer to it in your expert declaration? 24· ·A.· · I did refer to it, just as a sense that midazolam in a 25· ·low dose doesn't necessarily cause unconsciousness. 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Hearing, Evidentiary on 02/05/2014 Page 66 ·1· ·Q.· · Okay.· So without fully acquainting yourselves with the ·2· ·facts of that case, you saw fit to put it, your opinion, ·3· ·based on that execution, into an affidavit that you knew ·4· ·would be used in the state of Florida in a court of law; is ·5· ·that correct, Doctor? ·6· ·A.· · That case was evidence that the protocol being used, ·7· ·which included midazolam, did not reliably produce ·8· ·unconsciousness, nor did it produce apnea.· And that ·9· ·contradicted some of the testimony related to the Muhammad 10· ·case, which is why it was important to note.· I was not asked 11· ·to comment on the State of Ohio's use of a specific protocol, 12· ·so I think to continue to question what Ohio is doing -- I'm 13· ·happy to expound on it, as I said, if you provide me with the 14· ·protocol, I will sit here and go through it and I will tell 15· ·you why it may or may not be a good protocol. 16· ·Q.· · Well, Doctor, let's go on to a Florida execution 17· ·actually using the Midazolam Protocol.· Now you're familiar 18· ·with the execution of William Happ; correct? 19· ·A.· · I am. 20· ·Q.· · And how did you acquaint yourself with the facts of 21· ·that execution? 22· ·A.· · Reading the transcripts and the logs and the reports of 23· ·the people who witnessed the execution. 24· ·Q.· · And did you also have the benefit of reading the 25· ·testimony of the FDLE agent who was an observer during the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 67 ·1· ·Happ execution? ·2· ·A.· · I did. ·3· ·Q.· · And therefore you are aware that Agent Feltgen ·4· ·testified that he observed Mr. Happ, from only feet away, ·5· ·breathe heavily three or four times and also that that ·6· ·occurred prior to the consciousness check.· Are you aware of ·7· ·his testimony? ·8· ·A.· · I am.· And I believe that, again, it's very hard to ·9· ·look at conflicting reports without having been personally 10· ·present or without being able to observe a video of the 11· ·actual state of events, and make an absolute conclusion about 12· ·who is telling the truth, who is not telling the truth and 13· ·what the exact timing was.· I would say that the agent who 14· ·reported this is not trained in anesthesia, is not trained in 15· ·monitoring respiration, has no relevant experience to make 16· ·any conclusions whatsoever about the physiologic status of 17· ·someone undergoing this type of procedure. 18· ·Q.· · So, Doctor, his conclusion about consciousness made 19· ·from just a few feet away that he was absolutely and 20· ·completely certain that Mr. Happ was indeed unconscious, is 21· ·completely unreliable because he doesn't have medical 22· ·training? 23· ·A.· · Completely unreliable, that is correct.· I want to 24· ·agree with you. 25· ·Q.· · And you would agree that lay people can't determine Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 68 ·1· ·whether or not someone is unconscious or not? ·2· ·A.· · Lay people can't determine whether there is a surgical ·3· ·plane of anesthesia, which is why the American Veterinary ·4· ·Association doesn't allow anybody, anybody who does not have ·5· ·some formal training in determining the anesthetic depth to a ·6· ·surgical plane of anesthesia, perform euthanasia, that is ·7· ·correct. ·8· ·Q.· · Based on your allegedly incomplete conclusion and ·9· ·observation, you have assumed that something incorrect or 10· ·improper happened during the Happ execution; is that correct? 11· ·A.· · No, I'm basing my conclusions on my knowledge of the 12· ·drugs and the lack of reliability of midazolam in 100 percent 13· ·of cases to achieve its desired effect, its inability to 14· ·produce a surgical plane of anesthesia, because it cannot 15· ·produce the EEG silence as a sole drug and the fact that 16· ·those theories about how large doses of midazolam might be 17· ·inadequate are borne out by the physical evidence of these 18· ·particular executions, which are consistent with the theories 19· ·that I proposed about how this might happen.· So it's a 20· ·matter of putting it all together.· It's not taking them in 21· ·isolation. 22· ·Q.· · So let's assume that your theory, Doctor, is based on 23· ·that movement occurring after the consciousness check and 24· ·after administration of the second two drugs.· Let's assume 25· ·that Agent Feltgen's testimony is correct and that the heavy Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 69 ·1· ·breathing occurred before the consciousness check.· That ·2· ·would tend to indicate that midazolam actually worked as ·3· ·intended in that case; is that correct? ·4· ·A.· · I don't know, because once you give the paralytic ·5· ·agent, you have no idea if it's working.· It's working -- the ·6· ·intent is to create a human situation in which you take ·7· ·someone's life because a capital sentence has been declared. ·8· ·That's the intent.· And the question is whether midazolam ·9· ·can, in point, create a level of consciousness that is 10· ·impervious to the most noxious stimuli that you can imagine. 11· ·And I would tell you that it's not FDA-approved for that.· No 12· ·one uses that in surgery, and that I cannot agree that that's 13· ·the case and I cannot know that it is okay because we're 14· ·masking through the use of the second drug the possibility of 15· ·its inadequacy. 16· ·Q.· · Let's backtrack a little bit.· You've indicated that 17· ·50 milligrams can induce unconsciousness; is that correct? 18· ·A.· · In most regular adults that would be true. 19· ·Q.· · And if you are in a very deep level of unconsciousness, 20· ·in other words, a deep level of unconsciousness inhibits or 21· ·virtually eliminates the possibility of an individual being 22· ·able to feel pain -- wouldn't you agree with that, Doctor? 23· ·A.· · No, not the level of unconsciousness that midazolam 24· ·induces.· The answer is no. 25· ·Q.· · That wasn't my question.· A very deep level of Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 70 ·1· ·unconsciousness similar to a coma will in fact render an ·2· ·individual incapable of feeling pain; is that correct? ·3· ·A.· · That is most -- it's most likely correct.· I mean, ·4· ·there's -- the science behind that is very poor, but yes. ·5· ·We'll assume -- we'll make an assumption that that's the ·6· ·case.· It is certainly true that people undergoing anesthesia ·7· ·with an electrically silent EEG induced by deep levels of ·8· ·unconsciousness can tolerate a surgical operation. ·9· ·Q.· · And you indicated that midazolam does have properties 10· ·that -- for the -- that inhibit the GABA receptors; is that 11· ·correct? 12· ·A.· · Yes. 13· ·Q.· · And those same properties are also found in pentothal, 14· ·pentobarbital? 15· ·A.· · Correct.· You said inhibits.· It's actually -- GABA is 16· ·an inhibitory process and it activates -17· ·Q.· · I'm quite certain I butchered it, Doctor. 18· ·A.· · It actually activates GABA. 19· ·Q.· · But they have similar properties in that respect? 20· ·A.· · At low doses. 21· ·Q.· · And you're saying we just don't know what might happen 22· ·at higher doses? 23· ·A.· · No, we know there's a ceiling effect with midazolam and 24· ·we know it does not produce EEG silence, we know it cannot 25· ·produce a coma.· We know it cannot reliably produce death, Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 71 ·1· ·respiratory association or other things in the same way that ·2· ·barbiturates do at high doses. ·3· ·Q.· · Are you telling this Court that if you gave somebody ·4· ·500 milligrams of midazolam, they wouldn't be in a coma? ·5· ·A.· · I can tell you that, again, I have no idea, because no ·6· ·one has ever given anybody 500 milligrams.· All I can tell ·7· ·you is that it takes -- if you extrapolate animal data -·8· ·4,000 milligrams to kill somebody of the size that you're ·9· ·talking about -- and that's not even reliably, that's just 10· ·half the people -- would not recover, start breathing on 11· ·their own and somehow or other wake up at the end of it. 12· · · · · · I also am telling you that there's a ceiling effect 13· ·because it does not have any direct acting properties.· It 14· ·enhances the bind -- it has some direct acting properties, 15· ·but not on the GABA receptors, and it enhances the properties 16· ·of naturally occurring GABA in the central nervous system. 17· ·So that's very different than barbiturates, which do sort of 18· ·the same thing at low doses, and then at high doses act like 19· ·GABA and further -- and actually act like a drug as opposed 20· ·to just simply a drug helper.· So it's a different mechanism 21· ·of action and a different depth of depression of neuronal 22· ·activity in the brain, can be achieved with barbiturates 23· ·versus midazolam. 24· ·Q.· · Doctor, would you degree that it would be extremely 25· ·unwise for a physician who would perhaps fear malpractice or Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 72 ·1· ·harming a patient, it would be extremely unwise to give ·2· ·anyone -- if we know that 50 milligrams will most likely ·3· ·render an individual unconscious, it would be extraordinarily ·4· ·reckless for a physician to administer a dose of, say, 200 or ·5· ·250 milligrams to that hypothetical, 180-pound man? ·6· ·A.· · Absolutely. ·7· ·Q.· · Doctor, you cannot say that someone who has been given ·8· ·250 milligrams of midazolam followed by another ·9· ·250 milligrams of midazolam is sure or very likely to suffer 10· ·serious bodily injury and harm in the lethal injection 11· ·context, can you? 12· ·A.· · I can't answer anything about assurances, either that 13· ·they will or they will not, because we have no data.· I can 14· ·only make a conclusion based on the fact that you cannot 15· ·deliver a surgical plane of anesthesia with midazolam as a 16· ·sole anesthetic.· It's not considered appropriate for 17· ·euthanasia, it's not considered appropriate for -18· · · · · · MR. BROWNE:· Your Honor, I -19· ·A.· · -- animal euthanasia, so I'm trying to know what you're 20· ·asking -21· · · · · · THE COURT:· Excuse me.· Excuse me, Doctor.· When the 22· ·lawyer makes an objection or gets asked for the Court's 23· ·attention, you need to stop testifying. 24· · · · · · THE WITNESS:· Sorry about that. 25· · · · · · THE COURT:· What was your -Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 73 ·1· · · · · · MR. BROWNE:· Not responsive, Your Honor.· He ·2· ·answered my question. ·3· · · · · · That was good enough, Doctor. ·4· · · · · · I have nothing further at this time, Your Honor. ·5· ·Thank you. ·6· · · · · · THE COURT:· Redirect? ·7· · · · · · MR. NORGARD:· Thank you, sir. ·8· · · · · · · · · · ·REDIRECT EXAMINATION ·9· ·BY MR. NORGARD: 10· ·Q.· · I'm going to pick up with one of the last areas that 11· ·the Assistant Attorney General asked you about. 12· · · · · · You had made a general comment after some 13· ·evaluation, going into the differences between barbiturates 14· ·and benzodiazepines such as midazolam, but do the 15· ·barbiturates affect -- is the mechanism different than the 16· ·benzodiazepines such as midazolam? 17· ·A.· · Yes, the mechanism is different. 18· ·Q.· · Do they even react to the same receptors? 19· ·A.· · They are -- they have relation to the same receptors, 20· ·which is the GABA-A receptor. 21· ·Q.· · Is there, in the studies related to those, are there 22· ·benzodiazepine receptors in the GABA? 23· ·A.· · There are.· There's a specific ligand area.· There's a 24· ·specific area where the benzodiazepines will bind on the 25· ·receptor that's different than the area where barbiturates Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 74 ·1· ·bind, so they do different things. ·2· ·Q.· · Once they bind on the receptors, do they operate ·3· ·differently? ·4· ·A.· · They operate very differently. ·5· ·Q.· · Midazolams essentially act like a flap-open frequency, ·6· ·whereas the barbiturates act more like a gateway where it ·7· ·just flows through; right? ·8· ·A.· · That's a pretty good lay term explanation.· I think ·9· ·that the most important part about this is that the 10· ·benzodiazepine doesn't -- helps naturally-occurring GABA bind 11· ·to those receptors, makes it have greater affinity, and so 12· ·enhances the inhibitory character, that is, the depression of 13· ·consciousness.· Barbiturates do the same thing, changing the 14· ·confirmation of the receptors slightly, but then at much 15· ·higher doses becomes a GABA substitute, where benzodiazepines 16· ·do not.· And that's the difference, and that's why at very 17· ·high doses barbiturates produce a surgical plane of 18· ·anesthesia, coma and EEG silence, and benzodiazepines do not. 19· ·Q.· · Now, as far as your opinions regarding the reported 20· ·movements by different people who have been executed using 21· ·the midazolam, whether it be Happ, whether it be Muhammad, 22· ·whether it be McGuire, are your opinions solely based on that 23· ·reported movement or is it based on the science, 24· ·fundamentally related to midazolam? 25· ·A.· · It's based on the science and then confirmed by the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 75 ·1· ·movements. ·2· ·Q.· · All right.· Going to try to use an example here and see ·3· ·if this can help explain what you just said on a more lay ·4· ·person's level.· But if a person was laying down with their ·5· ·eyes closed and somebody pricked them with a pin, you could ·6· ·certainly speculate that they just happened to open their ·7· ·eyes just as the pin was touching them; right? ·8· ·A.· · You could speculate. ·9· ·Q.· · But what would be the more reasonable conclusion as to 10· ·why they opened their eyes when pricked at that moment by the 11· ·pin? 12· ·A.· · The stimulation from the pin overcame whatever it was 13· ·causing their neural depression that allowed them to keep 14· ·their eyes closed and be impervious to the surrounding 15· ·environment. 16· ·Q.· · So the most reasonable conclusion is a reaction to the 17· ·pain? 18· ·A.· · The most reasonable conclusion is a reaction to the 19· ·pain. 20· ·Q.· · And is that what you find based on the reports given in 21· ·Muhammad, Happ and McGuire? 22· ·A.· · Yes. 23· ·Q.· · Throughout -- and I'm not going to go through each and 24· ·every time this came up, but throughout the examination the 25· ·Assistant Attorney General talked about midazolam causing a Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 76 ·1· ·person to be unconscious.· Bottom line, based on all of your ·2· ·knowledge regarding midazolam, your training, your ·3· ·experience, your actually working with that drug, knowing the ·4· ·science behind it, the literature, does midazolam in this ·5· ·protocol simply just produce unconsciousness, or does it ·6· ·actually ever get to the state of the person being insensate ·7· ·at a surgical plane where they're not going to feel pain? ·8· ·A.· · It merely produces unconsciousness.· It does not ·9· ·produce the surgical plane of anesthesia as a sole drug. 10· ·Q.· · Bottom line, it does not render the person insensate to 11· ·the pain of those two other extremely painful drugs? 12· ·A.· · That would be my likely conclusion, yes. 13· ·Q.· · Based on your reasonable degree of medical certainty? 14· ·A.· · That is correct. 15· · · · · · MR. NORGARD:· Thank you, Your Honor.· No other 16· ·questions. 17· · · · · · THE COURT:· Any recross? 18· · · · · · MR. BROWNE:· No, Your Honor, thank you. 19· · · · · · THE COURT:· All right.· Thank you, Dr. Lubarsky. 20· · · · · · Mr. Browne, the Court's order permitted the State an 21· ·opportunity to offer expert testimony as well.· Are you 22· ·looking to exercise that? 23· · · · · · MR. BROWNE:· Your Honor, our witness would be 24· ·available at 12:15, Dr. Evans.· I apologize, he could not 25· ·come here in person, and he -- you were -- he was gracious Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 77 ·1· ·enough to change his day so that we could have him at 12:15. ·2· ·I do intend to call him at this point. ·3· · · · · · THE COURT:· All right.· We can take an early lunch ·4· ·break and reconvene at 12:30.· Will he be available then? ·5· · · · · · MR. BROWNE:· I believe so.· He's got a block of ·6· ·time.· May I consult? ·7· · · · · · THE COURT:· Yes.· I don't mind taking not only an ·8· ·early but a slightly shorter, if it's going to help us move ·9· ·forward with the testimony. 10· · · · · · MR. BROWNE:· Okay.· 12:15 he's available.· If you 11· ·would like a longer lunch, I -12· · · · · · THE COURT:· Let's do it at 12:15. 13· · · · · · We will stand in recess until then.· Thank you. 14· · · · · · COURT SECURITY OFFICER:· All rise. 15· · · · · · (Recess taken from 11:19 a.m. to 12:14 p.m.) 16· · · · · · COURT SECURITY OFFICER:· All rise.· This Honorable 17· ·Court is again in session. 18· · · · · · THE COURT:· Mr. Browne, I understand that your 19· ·witness is available by telephone? 20· · · · · · MR. BROWNE:· That is correct, Your Honor. 21· · · · · · THE COURT:· Are you ready to proceed? 22· · · · · · MR. BROWNE:· I am, Your Honor. 23· · · · · · THE COURT:· And your next witness is? 24· · · · · · MR. BROWNE:· Dr. Roswell Lee Evans. 25· · · · · · THE COURT:· Dr. Evans, can you hear me? Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 78 ·1· · · · · · THE WITNESS:· I can. ·2· · · · · · THE COURT:· Good.· I'm going to ask our clerk to ·3· ·place you under oath, please. ·4· · · · · · THE CLERK:· Okay. ·5· · · · · · THE COURT:· Madam Clerk? ·6· · · · · · THE CLERK:· Do you solemnly swear that the testimony ·7· ·you are about to give before this Court will be the truth, ·8· ·the whole truth and nothing but the truth, so help you God? ·9· · · · · · THE WITNESS:· I do. 10· · · · · · THE CLERK:· Great.· Thank you.· Please state your 11· ·name for the record and spell your last name. 12· · · · · · THE WITNESS:· My name is Roswell Lee Evans, Jr., and 13· ·it's E-v-a-n-s. 14· · · · · · THE CLERK:· Thank you. 15· · · · · · MR. BROWNE:· May I inquire, Your Honor? 16· · · · · · THE COURT:· You may. 17· · · · · · · · · · · · · DR. ROSWELL LEE EVANS, 18· ·called as a witness on behalf of the defendants, testified by 19· ·telephone as follows: 20· · · · · · · · · · · · ·DIRECT EXAMINATION 21· ·BY MR. BROWNE: 22· ·Q.· · Good morning or afternoon, Doctor, depending on your 23· ·time.· I believe we're still on morning time? 24· ·A.· · That's right.· That's correct. 25· ·Q.· · Doctor, could you please tell the Court what your Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 79 ·1· ·educational background is. ·2· ·A.· · My educational background is that I have a bachelor's ·3· ·in pharmacy and doctor of pharmacy and a residency, and ·4· ·that's -- that's formal education. ·5· ·Q.· · And, Doctor, do you have in front of you a document ·6· ·known as your curriculum vitae? ·7· ·A.· · Yes. ·8· ·Q.· · And is that, Doctor, a 46-page document? ·9· ·A.· · Yes, it is. 10· ·Q.· · And would that represent a current copy of your 11· ·experience and publications and work history? 12· ·A.· · Yes. 13· · · · · · MR. BROWNE:· Your Honor, may I approach? 14· · · · · · THE COURT:· You may. 15· · · · · · MR. BROWNE:· I'm now approaching and showing the 16· ·clerk what has been marked as Defendants' Exhibit 1 17· ·previously provided to defense counsel.· I'd ask that it be 18· ·admitted. 19· · · · · · THE COURT:· Without objection? 20· · · · · · MR. NORGARD:· Yes, no objection. 21· · · · · · THE COURT:· It will be so marked and admitted. 22· · · · · · (Defendants' Exhibit 1 received in evidence.) 23· ·BY MR. BROWNE: 24· ·Q.· · Doctor, what does a pharmacologist do? 25· ·A.· · Well, a pharmacologist basically studies the impact of Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 80 ·1· ·medications on body systems.· I happen to be on the clinical ·2· ·side.· And using medications appropriately in patients, ·3· ·it's -- is kind of what my focus is, and particularly I'm ·4· ·focused on psychiatric and neurology-based drugs. ·5· ·Q.· · And, Doctor, I'm sorry, could you please speak up? ·6· ·A.· · Sure. ·7· ·Q.· · Thank you. ·8· · · · · · THE COURT:· Do we have the ability to increase the ·9· ·volume? 10· · · · · · THE CLERK:· I'm trying, but it doesn't seem to. 11· · · · · · THE WITNESS:· I can speak up.· Does that help? 12· · · · · · THE CLERK:· Yes.· Thank you. 13· · · · · · THE WITNESS:· If I start mumbling, let me know. 14· · · · · · THE COURT:· Thank you. 15· ·BY MR. BROWNE: 16· ·Q.· · And, Doctor, you mentioned the study of drugs.· How 17· ·often in your career have you had occasion to actually 18· ·consult with or review the effect or impact of various drugs? 19· ·A.· · Well, from a legal perspective? 20· ·Q.· · Well, let's start with, in general, over the course of 21· ·your career. 22· ·A.· · Well, my practice has been essentially taking care of 23· ·patients with psychiatric disorders by -- through medication 24· ·treatment, so my -- my skill set is the evaluation of those 25· ·patients and then the appropriate implementation of Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 81 ·1· ·pharmacotherapy.· So from that perspective, that's consumed ·2· ·pretty much my entire career. ·3· ·Q.· · And now you are presently dean of the Auburn University ·4· ·School of Pharmacy? ·5· ·A.· · Yes, sir. ·6· ·Q.· · Is that correct?· And do you also have a consulting ·7· ·practice as well? ·8· ·A.· · Yes, I do. ·9· ·Q.· · And what does that consist of, Doctor? 10· ·A.· · Typically in the last few years my consulting practice 11· ·has focused on a few legal cases throughout the year, and I 12· ·do see a few patients that are referred to me for evaluation, 13· ·so that's -- that's pretty much it. 14· · · · · · I also maintain an active practice now with my 15· ·students that's more community-based, in which they're seeing 16· ·patients and presenting them for evaluation of their drug 17· ·therapy and interventions with that drug therapy. 18· ·Q.· · And, Doctor, are you board certified in any area? 19· ·A.· · Yes, I'm a board-certified psychiatric pharmacist, also 20· ·I'm a Fellow of the College of Clinical Pharmacy and a Fellow 21· ·in the American Society of Health Systems Pharmacists. 22· · · · · · MR. BROWNE:· Your Honor, I ask that the witness be 23· ·tendered as an expert in pharmacology. 24· · · · · · THE COURT:· Any objection? 25· · · · · · MR. NORGARD:· I think that's ultimately for the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 82 ·1· ·Court to decide. ·2· · · · · · THE COURT:· It is.· I'm just curious whether you had ·3· ·any specific objections.· Do you wish to inquire about his ·4· ·qualifications? ·5· · · · · · MR. NORGARD:· I'll do that on my cross and he can ·6· ·continue to testify. ·7· · · · · · THE COURT:· All right. ·8· · · · · · MR. NORGARD:· I'm just not going to stipulate and ·9· ·agree that he's necessarily an expert. 10· · · · · · THE COURT:· The Court will find him one at this 11· ·juncture. 12· ·BY MR. BROWNE: 13· ·Q.· · Doctor, have you recent -- thank you, Your Honor. 14· · · · · · Doctor, have you recently testified in the case of 15· ·Muhammad v. State on the matter or efficacy and safety of 16· ·midazolam? 17· ·A.· · Yes. 18· ·Q.· · And, Doctor, I'm -- we have the benefit of your 19· ·testimony in that case, but some of that testimony might be 20· ·relevant here.· Have you had a chance to review your 21· ·testimony in that case? 22· ·A.· · Yes, I have. 23· ·Q.· · And, Doctor, have you had a chance to review any 24· ·additional material, such as an expert affidavit from 25· ·Dr. Lubarsky? Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 83 ·1· ·A.· · Yes, I received that this morning and I did have a ·2· ·chance to review it. ·3· ·Q.· · Doctor, what is the impact of midazolam hydrochloride ·4· ·in the amount of 250 milligrams?· What would you expect the ·5· ·impact of that amount of midazolam to be? ·6· ·A.· · Well, the impact eventually would be respiratory ·7· ·arrest, cardiac arrest, severe oxygen deprivation and death, ·8· ·if untreated. ·9· ·Q.· · And why do you come to that conclusion in that amount? 10· ·And, again, that's 250 milligrams followed by another 11· ·250 milligrams.· Is that your understanding of what is called 12· ·for in Florida's lethal injection protocol? 13· ·A.· · Yes, yes, it is.· There are reported cases of as little 14· ·as 71 milligrams of this drug causing death in humans.· The 15· ·dose that we're talking about is, you know, 40-something 16· ·times more than the normal dose used in therapeutic medicine. 17· ·So it has some pretty devastating effects pharmacologically. 18· ·Q.· · And how quickly would a dose of 250 milligrams of 19· ·midazolam hydrochloride, administered intravenously, how 20· ·quickly would you expect that dose to render an individual 21· ·unconscious? 22· ·A.· · Anywhere from 2 to 4 minutes, and the literature talks 23· ·about 2 to 5 minutes.· But this drug is very, very rapidly 24· ·absorbed from the system and penetrates tissue very quickly, 25· ·so you're going to get a huge impact on the central nervous Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 84 ·1· ·system, very, very quickly.· So within a few minutes you ·2· ·would begin to create an impact from the drug. ·3· · · · · · Anybody who's ever had a colonoscopy has had the ·4· ·benefit of midazolam, and it doesn't take but just a fuse, ·5· ·just a very short amount of time before you're rendered not ·6· ·necessarily unconscious, but in the doses that are used, but ·7· ·you don't remember a thing. ·8· ·Q.· · Well, and that would be a -- much smaller doses for a ·9· ·colonoscopy; is that correct? 10· ·A.· · Right, right.· Two to 5 milligrams, depending on the 11· ·age, and oftentimes that dose is reduced and given in 12· ·combination with a narcotic, but the midazolam by itself will 13· ·induce kind of an unconscious state very quickly for those 14· ·kind of procedures. 15· ·Q.· · Now, in the amounts prescribed, are you aware, through 16· ·your research or study of literature, what level of midazolam 17· ·is required for, say, 180-pound man to be rendered 18· ·unconscious? 19· ·A.· · Well, in a therapeutic thing, 180 -- what did you say, 20· ·170-pound man? 21· ·Q.· · Or 180. 22· ·A.· · 180-pound, is probably about 80 kilograms.· It -- you 23· ·know, it's not a very big dose.· It's about 5 milligrams, so 24· ·it's a pretty small dose to use therapeutically. 25· ·Q.· · Now, Doctor, depending on the dosage provided, would Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 85 ·1· ·the anesthetic effect, both in inducing possibly ·2· ·unconsciousness and the length or duration of that ·3· ·unconsciousness, be affected by the dose of midazolam given? ·4· ·A.· · Yes, the duration of impact would increase with the ·5· ·size of the dose.· So, you know, we don't have a great deal ·6· ·the experience from a scientific perspective about what kind ·7· ·of duration that size dose would create.· We could probably ·8· ·guesstimate it from mathematical calculations, but it would ·9· ·probably exceed 4 to 6 hours. 10· ·Q.· · Doctor, if you were intending to render someone 11· ·unconscious and your goal was to render them incapable or 12· ·unaware of noxious stimuli or pain, would a dose of 13· ·250 milligrams in your opinion be sufficient to achieve that 14· ·result? 15· ·A.· · Yes, it would.· The dose alone would create an 16· ·anesthetic situation with a would-be anesthetized, and so 17· ·I doubt very seriously if any pain would be felt or 18· ·encountered in this scenario. 19· ·Q.· · Well, how does midazolam impact the brain at higher 20· ·levels? 21· ·A.· · Well, it -- it's a matter -- it's really a continuum. 22· ·Lower doses, as you escalate the dose, begin to impact more 23· ·receptors in the body, and the particular receptor that we're 24· ·talking about is called a GABA receptor.· And the brain is 25· ·absolutely full of GABA receptors, and the drug blocks GABA, Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 86 ·1· ·which is a regulation -- or regulatory receptor.· So as you ·2· ·increase the dose, you have more impact on GABA and very ·3· ·quickly you begin to have an impact on transmission in the ·4· ·brain, so you -- to stop it. ·5· ·Q.· · So would it matter in your opinion whether or not ·6· ·midazolam itself had any analgesic properties? ·7· ·A.· · No. ·8· ·Q.· · And why is that? ·9· ·A.· · Because I think, you know, the analgesic piece -- I 10· ·think people are rendered so deeply in an anesthetic state 11· ·they're really not going to be able to discern pain.· And I 12· ·guess the argument has been that the procedure where we 13· ·administer other drugs in large amounts are -- create some 14· ·painful stimuli.· So far, I don't think that we have seen 15· ·that to be an issue. 16· ·Q.· · And would that be in accordance with your understanding 17· ·of the literature that you have studied and any readily 18· ·available pharmacological textbooks, in reaching your 19· ·conclusions in this case? 20· ·A.· · Yes.· I mean, when we talk about the drug being 21· ·approved as an anesthetic, induction of anesthesia, that's 22· ·pretty much what we're talking about.· We're basically 23· ·rendering a person unable to discern pain and be aware of 24· ·their surroundings, and it's a dose-related phenomenon.· So 25· ·as we increase the dose, we're going to get more anesthesia Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 87 ·1· ·and put the person much more into almost a comatose kind of ·2· ·state. ·3· ·Q.· · Is it your understanding, Doctor, that midazolam is ·4· ·used as an anesthetic to actually induce unconsciousness? ·5· ·A.· · Yes, it is.· It's even approved by the FDA to induce ·6· ·anesthesia in regular medical practice.· It's usually ·7· ·combined with other agents, but it's approved to induce ·8· ·anesthesia. ·9· ·Q.· · Doctor, why would you include, say, for instance, an 10· ·opiate as well if you were conducting a major surgical 11· ·procedure? 12· ·A.· · Well, in lower doses of midazolam, you would add -- you 13· ·would add a narcotic like meperidine, for instance, because 14· ·it tends to stabilize the response.· In other words, if you 15· ·gave a lower dose, the -- along with a narcotic, you would 16· ·get a more stable response from the patient as the drug is 17· ·distributed.· Midazolam is distributed in just about all the 18· ·tissues in the body, and so in some ways it's -- in lower 19· ·doses it's a little bit unpredictable about the level of 20· ·anesthesia that you can achieve by itself.· In higher doses, 21· ·the doses we're talking about, I'm not sure that's going to 22· ·be a problem. 23· ·Q.· · Now, is there any doubt in your mind whatsoever, 24· ·Dr. Evans, that if you administer one syringe with 25· ·250 milligrams of midazolam followed by a second syringe of Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 88 ·1· ·250 milligrams of midazolam, that an individual will in fact ·2· ·be insensate, unconscious and incapable of feeling pain? ·3· ·A.· · I have no doubt about that. ·4· ·Q.· · And that's to a reasonable degree of medical or ·5· ·pharmacological certainty? ·6· ·A.· · Yes, yes. ·7· ·Q.· · Doctor, there's been some reference to the possibility ·8· ·of paradoxical reactions with administration of ·9· ·benzodiazepines.· Are you familiar with that concept? 10· ·A.· · Yes, and I have actually seen it in practice, but it 11· ·usually occurs at much lower doses.· In normal therapeutic 12· ·use the incidence is less than 1 percent and oftentimes 13· ·it's -- again, it's a dose-related phenomenon. 14· ·Q.· · Is that based on your study of research into 15· ·paradoxical reactions and actually based on your own 16· ·experience? 17· ·A.· · Yes. 18· ·Q.· · Now, can you tell the Court how you might observe a 19· ·paradoxical reaction? 20· ·A.· · Well, the worst case scenario of paradoxical reactions 21· ·is that the individual basically almost has a rage reaction 22· ·or becomes combative, you know, in -- and that's, I think, is 23· ·the fear, that somebody would respond that way.· It does 24· ·occur, even in other drugs, not just midazolam, but sometimes 25· ·when you begin to block some of the GABA receptors which are Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 89 ·1· ·inhibitory to behaviors, you could see a reaction which is ·2· ·labeled, you know, a paradoxical reaction.· Most of the time ·3· ·it's not very severe, but, frankly, you know, there are case ·4· ·reports in which people who have gone in for dental ·5· ·extractions are given midazolam and become combative. ·6· ·Q.· · Now, Doctor, are you talking about and have you ·7· ·reviewed the dosages amount -- or amounts in those reported ·8· ·1 percent of cases where there have been paradoxical ·9· ·reactions? 10· ·A.· · Yeah, you're talking about from an IV perspective, 11· ·you're talking about 2 to 5 milligrams. 12· ·Q.· · So, Doctor, if you were given a small amount of 13· ·midazolam, you might see a paradoxical reaction and you would 14· ·put the probability at 1 percent; is that correct? 15· ·A.· · Right, exactly. 16· ·Q.· · Now, Doctor, have you, in the amounts that -17· ·substantial amounts of midazolam, are you aware of the 18· ·paradoxical reaction occurring in amounts similar to 19· ·Florida's protocol? 20· ·A.· · I've not experienced it, nor have I read anything that 21· ·would suggest that in this level that there have been 22· ·paradoxical reactions. 23· ·Q.· · Would it be fair to say if you had a large -- very 24· ·large dose of midazolam, you would likely skip right through 25· ·the paradoxical reaction and go straight to unconsciousness? 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Hearing, Evidentiary on 02/05/2014 Page 90 ·1· ·A.· · I think that's quite possible, I mean very likely that ·2· ·that would happen, as -- because we're really saturating all ·3· ·these receptors very, very quickly with this drug.· One of ·4· ·the beauties of this drug is it's so fast-acting. ·5· ·Q.· · Would it be fair to say that as opposed to, say, sodium ·6· ·thiopental or pentobarbital, that in larger amounts or doses ·7· ·the effect on an individual and their consciousness is quite ·8· ·similar? ·9· ·A.· · Pretty similar.· And even with those drugs, you know, 10· ·there have been reports of paradoxical reactions, but there's 11· ·not much in terms of incidence or dose-related phenomena. 12· ·Q.· · Doctor, if you were given a very substantial dose of 13· ·midazolam hydrochloride and similar large doses of 14· ·pentobarbital and sodium thiopental, is it your testimony 15· ·that the effect on the individual, regarding their 16· ·consciousness, would be similar or the same? 17· ·A.· · I think it would be quite similar. 18· · · · · · MR. BROWNE:· Thank you, Your Honor.· I don't believe 19· ·I have any additional questions. 20· · · · · · THE COURT:· Thank you, Mr. Browne. 21· · · · · · Mr. Norgard? 22· · · · · · · · · · ·CROSS-EXAMINATION 23· ·BY MR. NORGARD: 24· ·Q.· · My name is Bob Norgard.· I'm one of the attorneys that 25· ·represents Juan Carlos Chavez. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 91 ·1· · · · · · First of all, can you hear me all right? ·2· ·A.· · I can.· Thank you. ·3· ·Q.· · The first thing that I want to do is I want to ask some ·4· ·additional questions about your training and background. ·5· ·A.· · Okay. ·6· ·Q.· · You have a Bachelor of Science degree in pharmacy; is ·7· ·that correct? ·8· ·A.· · That's right. ·9· ·Q.· · Then you have a Ph.D. in pharmacy; is that correct? 10· ·A.· · No, I have a doctor of pharmacy degree, which is really 11· ·a clinical degree. 12· ·Q.· · Okay.· But basically that's in pharmacy as well? 13· ·A.· · Sure. 14· ·Q.· · And the area in which you're board certified is as a 15· ·psychiatric pharmacist; is that correct? 16· ·A.· · That's correct. 17· ·Q.· · All right.· Now, as a person who practices that 18· ·particular discipline, do you ever use midazolam 19· ·hydrochloride? 20· ·A.· · Not therapeutically, no. 21· ·Q.· · Have you ever used midazolam hydrochloride in any 22· ·therapeutic context, ever at all? 23· ·A.· · Not under my control.· I've certainly been witness to 24· ·the use of the drug in clinical environments, but not that 25· ·I've used. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 92 ·1· ·Q.· · And, in fact, you are not a medical doctor? ·2· ·A.· · I am not a medical doctor, no. ·3· ·Q.· · You cannot make evaluations and then prescribe dosages ·4· ·of drugs for particular situations? ·5· ·A.· · Not without a collaborative agreement. ·6· ·Q.· · You can talk to a doctor and give them your thoughts ·7· ·and opinions on a subject, but ultimately it's the doctor who ·8· ·makes the evaluation, makes the determination and prescribes ·9· ·the medication? 10· ·A.· · Well, if I'm practicing under a collaborative agreement 11· ·I can do all of those things, but a physician is actually 12· ·supervising those activities, yes. 13· ·Q.· · Regardless of -- throughout your background and your 14· ·experience, have you ever personally induced anesthesia in a 15· ·patient? 16· ·A.· · No. 17· ·Q.· · In your practice, have you ever utilized vecuronium 18· ·bromide in any way? 19· ·A.· · No. 20· ·Q.· · Have you ever personally used potassium chloride for 21· ·any level? 22· ·A.· · Only as part of the treatment team that's treating 23· ·people for medical disorders, not in the realm that we're 24· ·talking about here. 25· · · · · · THE COURT:· Mr. Norgard, let me interrupt you just a Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 93 ·1· ·moment. ·2· · · · · · Madam Clerk, may I see you? ·3· · · · · · Thank you. ·4· · · · · · MR. NORGARD:· Sure. ·5· ·BY MR. NORGARD: ·6· ·Q.· · Have you ever used pentobarbital as a drug in your ·7· ·practice? ·8· ·A.· · No.· Pentobarbital really had, in modern-day practice, ·9· ·had very little application to the treatment of patients. 10· ·Q.· · What about sodium thiopental? 11· ·A.· · Same thing. 12· ·Q.· · Have you ever been called upon in your career to 13· ·actually, in the real world, make a consciousness evaluation 14· ·to determine if a person is sufficiently insensate for 15· ·purposes of their then being administered noxious stimuli? 16· ·A.· · No. 17· ·Q.· · And would you agree that that determination, in terms 18· ·of degree of unconsciousness, a degree of being at a surgical 19· ·plane where the person is insensate, would be even more 20· ·important the more noxious the stimuli is? 21· ·A.· · Yes. 22· ·Q.· · Would you agree, although you don't yourself do these 23· ·things, that in a clinical use, in a clinical situation, that 24· ·midazolam is typically administered prior to the induction of 25· ·anesthesia in surgical settings for purposes of essentially Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 94 ·1· ·offering some sedation? ·2· ·A.· · I think -- that is the most typical way it's used, is a ·3· ·premedication, yes. ·4· ·Q.· · All right.· And midazolam is not appropriate as a sole ·5· ·and total anesthetic in surgeries involving noxious stimuli; ·6· ·isn't that true? ·7· ·A.· · I think -- Well, it is approved for induction of ·8· ·anesthesia systematically, or at least in a real world's ·9· ·phenomena, it's not used that way at all, not by itself. 10· ·It's used in combination with other agents. 11· ·Q.· · Because midazolam hydrochloride has absolutely no 12· ·analgesic properties in and of itself; correct? 13· ·A.· · That's true. 14· ·Q.· · And that is why it is typically utilized with some type 15· ·of opioid; is that correct? 16· ·A.· · That's true, especially in the doses that we're talking 17· ·about. 18· ·Q.· · Fentanyl, hydromorphone, drugs of those natures, as 19· ·they address issues of pain; correct? 20· ·A.· · Correct. 21· ·Q.· · Now, you said that 250 milligrams of midazolam would 22· ·cause respiratory arrest, oxygen deprivation; is that 23· ·correct? 24· ·A.· · That's true. 25· ·Q.· · Respiratory arrest is very painful, isn't it? 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Hearing, Evidentiary on 02/05/2014 Page 95 ·1· ·A.· · Well, it's actually hard to assess that because most ·2· ·people in this situation don't remember it. ·3· ·Q.· · If you stop breathing and you're conscious, it is very ·4· ·painful, isn't it? ·5· ·A.· · Well, I would assume that it can be very painful. ·6· ·Q.· · Have you ever been under water, where you just didn't ·7· ·quite get to the surface before your oxygen ran out? ·8· ·A.· · I understand the parallel, yes. ·9· ·Q.· · And the way you described it is that, you know, the 10· ·dosages of midazolam that we're dealing with here would 11· ·eventually lead to death, in your opinion, but not 12· ·immediately; correct? 13· ·A.· · Well, you mean instantaneously?· No.· Fairly quickly, 14· ·however.· And if the doses -- when you begin to shut down the 15· ·central nervous system, this is not going to take very long 16· ·at all, and -- if left as a single drug.· As a -- within this 17· ·protocol, there are other -- certainly other agents that are 18· ·going to be in play here. 19· ·Q.· · Okay.· Do you have, just so I can know for a fact, do 20· ·you have any -- since you don't use this yourself in clinical 21· ·practice and since nobody uses 500 milligrams of midazolam 22· ·hydrochloride in clinical settings, do you have, based on 23· ·your opinion, any idea how long it would take the person to 24· ·die? 25· ·A.· · No.· There's no -- no real evidence, other than Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 96 ·1· ·anecdotal, from cases that have been -- where this has been ·2· ·used before. ·3· ·Q.· · You said that -- a few moments ago that you thought it ·4· ·would be relatively quickly? ·5· ·A.· · Very quickly, yes; that's my opinion. ·6· ·Q.· · But you have no evidence to support how long in the ·7· ·real world that would actually take? ·8· ·A.· · Again, nothing other than anecdotal, from previous ·9· ·experience in these cases. 10· ·Q.· · Are we talking 5 minutes, 10 minutes? 11· ·A.· · I would -12· ·Q.· · 15 minutes? 13· ·A.· · I would say five minutes on outset.· Five to ten, no 14· ·more than that. 15· ·Q.· · Okay.· Even though you have no studies you can base 16· ·that on, you're just throwing out a number of 5 to 10 minutes 17· ·before death? 18· ·A.· · Just simply because of the action of the drug, how 19· ·quickly it actually has an impact. 20· ·Q.· · And being in pain for 5 or 10 minutes, that's -- can 21· ·be -- kind of the analogy of being at a football game versus 22· ·an Auburn game when they're not losing, to being in a 23· ·dentist's chair under -- in pain for 5 to 10 minutes, there's 24· ·a big difference, isn't there? 25· ·A.· · Oh, I would imagine. 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Hearing, Evidentiary on 02/05/2014 Page 97 ·1· ·Q.· · Great comeback, by the way, against Alabama.· Sorry. ·2· ·Had to throw that in. ·3· ·A.· · Thank you.· I happened to get to see that one. ·4· ·Q.· · All right.· Focusing on the fact that in this Midazolam ·5· ·Protocol, just for shorthand purposes, we're using ·6· ·500 milligrams, are you aware of any scientific literature, ·7· ·FDA studies, drug company studies, that have actually tested ·8· ·the effects of 500 milligrams of midazolam hydrochloride on a ·9· ·human being? 10· ·A.· · I think that protocol would be very difficult to get 11· ·approved.· No, there is no such -- no such studies that have 12· ·been done. 13· ·Q.· · To your knowledge, have there been any studies to the 14· ·extent I just described, as to how long such a dose, 15· ·500 milligrams, would last? 16· ·A.· · No, no.· But you do know that the normal doses last up 17· ·to 6 hours, 4 to 6 hours.· So you begin to extrapolate and 18· ·say, okay, how much more, 40-plus times more.· You're going 19· ·to get some extension in duration of action on this drug. 20· ·And you don't really need it that long, based on what the 21· ·purpose of the drug is. 22· ·Q.· · Are you aware of any scientific studies, FDA testing, 23· ·drug company testing, that has tested the efficacy of 24· ·500 milligrams of midazolam to determine if it prevents pain 25· ·or a feeling of suffocation when administered? 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Hearing, Evidentiary on 02/05/2014 Page 98 ·1· ·A.· · No.· I think that's the same scenario that you painted ·2· ·before.· No, there's no way in the world anybody would ever ·3· ·approve such a protocol. ·4· ·Q.· · Now, it sounds to me, from what I was listening to ·5· ·during your direct examination, that you're almost saying ·6· ·more is better, in terms of getting a certain effect from a ·7· ·drug.· But isn't it also true -- and I'll even be very ·8· ·specific as it relates to midazolam -- that you reach a -·9· ·what I'll call a ceiling effect? 10· ·A.· · Well, that's postulated.· And whether you 11· ·actually reach that ceiling effect or not is a little bit 12· ·unclear.· As I said before, GABA receptors are actually 13· ·throughout the entire body, and hypothetically if you 14· ·saturated those receptors, that's as much an impact as you're 15· ·going to get from the drug.· But, frankly, if you have 16· ·blocked those GABA receptors, you've achieved your 17· ·pharmacological outcome that you actually want. 18· ·Q.· · Do you know at what point those benzodiazepine GABA 19· ·receptors reach a saturation point?· Is it 70 milligrams, 20· ·100, 200? 21· ·A.· · We have no idea.· You know, it -- my hypothesis or my 22· ·guess would be that we saturate -- in normal doses we 23· ·basically are saturating CNS receptors to the point where 24· ·we're gaining preanesthesia or some level of anesthesia and 25· ·it's titrated.· Say you titrate to effect, it's not a finite Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 99 ·1· ·dose.· So if you're putting someone under anesthesia with ·2· ·using this drug, you continue to titrate the dose up to get ·3· ·the required effect from the drug, and so you don't really ·4· ·know.· And I think it's going to be somewhat of an ·5· ·individual, on an individual basis, how a person actually ·6· ·responds to this drug. ·7· · · · · · So when you start looking at something as massive as ·8· ·500 milligrams, you certainly, certainly might be saturating ·9· ·everything, but I think you've achieved your pharmacological 10· ·outcome long before you -- the impact of the 500 milligrams. 11· ·Q.· · The bottom line is you don't know whether or not the 12· ·body is saturated by midazolam at 50 milligrams, 60 -13· ·A.· · No. 14· ·Q.· · -- 70, 80? 15· ·A.· · No, you don't know that. 16· ·Q.· · And since those dosages aren't even used in any 17· ·context, you don't really know what surgical plane is 18· ·necessarily reached; correct? 19· ·A.· · No.· The only thing you can do is extrapolate the 20· ·impact, the pharmacological impact from normal doses, and as 21· ·you begin to look at larger doses, the impact should be 22· ·greater, to -- to -- basically our impression. 23· ·Q.· · But that's speculation, because we just simply don't? 24· ·A.· · Don't have the data, no, no.· And again, you have to 25· ·work off the anecdotal piece of the fact that the drug has Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 100 ·1· ·been used successfully without problems, and this does. ·2· ·Q.· · When you say anecdotally used without problems, are you ·3· ·talking about other executions? ·4· ·A.· · Yes.· That's the only -- that's the only evidence that ·5· ·you really have that this works. ·6· ·Q.· · Well, who has ever talked to a person that's been ·7· ·executed to see what they would feel? ·8· ·A.· · No, you don't know that.· That's what I'm talking ·9· ·about.· I mean, I don't know what you would -- what you would 10· ·achieve under any circumstance in terms of trying to assess 11· ·the impact of the person who is receiving the treatment. 12· ·Q.· · And in this protocol that we're talking about, they're 13· ·given a paralytic; right? 14· ·A.· · Yes. 15· ·Q.· · In a person who is paralyzed, you're not going to be 16· ·able to tell if they're in pain; right? 17· ·A.· · Well, that's true. 18· ·Q.· · Now, before I move on from this particular point, the 19· ·benzodiazepine -- we already talked about the -- somewhat of 20· ·the mechanics of midazolam hydrochloride, but it acts on what 21· ·are frequently called the benzodiazepine receptors; correct? 22· ·A.· · That's true, the GABA, GABA receptors. 23· ·Q.· · And they're finite; right?· They're not infinite.· They 24· ·are a finite number of receptors; correct? 25· ·A.· · Billions, yes. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 101 ·1· ·Q.· · Now, barbiturates, on the other hand, such as sodium ·2· ·thiopental and pentobarbital, they act on GABA receptors but ·3· ·in a different area; correct? ·4· ·A.· · They work at a different GABA receptor, yes. ·5· ·Q.· · And they also affect other receptors as well; right? ·6· ·A.· · Sure. ·7· ·Q.· · And that's why barbiturates are so dangerous, because ·8· ·they are so highly toxic with the way they operate on the ·9· ·system? 10· ·A.· · Yes. 11· ·Q.· · And that's why they can be used to induce comas so 12· ·readily? 13· ·A.· · Yes.· You can actually use midazolam in the same way, 14· ·though. 15· ·Q.· · Doctor, I'm sorry.· Has anybody ever used midazolam to 16· ·induce a coma? 17· ·A.· · Yes, they have.· To maintain that level of 18· ·unconsciousness, a continuous -- a continuous infusion of the 19· ·drug has been used, is used. 20· ·Q.· · Can you tell me what surgical procedure uses midazolam 21· ·where the person is induced to the point of being in a coma? 22· ·A.· · What surgical procedures? 23· ·Q.· · Yes, with midazolam alone, to reach that anesthetic 24· ·plane. 25· ·A.· · Well, I'm not so sure that we're talking -- when I was Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 102 ·1· ·talking about this, that I was referring to surgical ·2· ·procedures.· People who need to be maintained in a comatose ·3· ·state after some trauma, this drug has been used to do that. ·4· ·So it is used now.· If you're talking about the surgical ·5· ·piece of somebody doing, you know, something as invasive as ·6· ·cardiothoracic surgery, no, you wouldn't use this drug alone. ·7· ·Q.· · Even for purposes of -- I mean, certainly if you were ·8· ·injecting potassium bromide or vecuronium bromide or ·9· ·potassium chloride; right? 10· ·A.· · Well, any type of noxious stimuli would, frankly, at 11· ·least as severe as, you know, a surgical -- deep surgical 12· ·procedure, would be something you would want to cover 13· ·yourself with other agents besides just midazolam.· If you're 14· ·talking about something like giving a parenteral injection, 15· ·you know, potassium chloride is caustic.· It does hurt to 16· ·give it, even in normal doses.· But I think we've achieved 17· ·enough anesthesia with this particular agent that that's not 18· ·going to be a problem. 19· ·Q.· · You say -20· ·A.· · And it hasn't really been a problem. 21· ·Q.· · Okay.· You say you think, but do you know for a fact 22· ·that that person was insensate to pain, the pain of the 23· ·vecuronium bromide or potassium chloride? 24· ·A.· · The insensate piece, in terms of testing, whether or 25· ·not the person is sufficiently comatose or insensate, is as Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 103 ·1· ·appropriate as it can be, based on my knowledge.· So if they ·2· ·don't react to painful stimuli, they're pretty much there.· I ·3· ·mean, before you even introduce a drug like potassium ·4· ·chloride. ·5· ·Q.· · In the Midazolam Protocol, what painful stimuli is ·6· ·utilized to make sure the person is sufficiently insensate to ·7· ·experience dose -- vecuronium bromide and potassium chloride? ·8· ·A.· · It basically is a glabellar tap, which is pretty ·9· ·painful. 10· ·Q.· · A tap on the eyelid is pretty painful? 11· ·A.· · Well, actually I think it's even more severe than a tap 12· ·on the eyelid.· It's applying a fair amount of pressure in 13· ·the eye socket in order to elicit pain. 14· ·Q.· · Is that anywhere close to the pain associated with 15· ·having your lungs paralyzed? 16· ·A.· · It's hard to equate on that basis, but what you're 17· ·essentially assessing is whether the person is insensate. 18· ·That's all you can actually -- I think that would be all that 19· ·you could actually determine. 20· ·Q.· · Do you really believe that anesthesiologists, during 21· ·surgery, simply push on somebody's eyeball and shake their 22· ·shoulder and say, "See you later, Doctor, cut away"? 23· ·A.· · No, that's perpetually -- it's perpetually monitored? 24· ·Q.· · How a person reacts to certain stimuli correlates to 25· ·the level of pain associated with the stimuli; is that Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 104 ·1· ·correct? ·2· ·A.· · Can be, yes. ·3· ·Q.· · I mean, I'll go with your theory that more is better. ·4· ·If you hit somebody with a pencil versus a sledgehammer, ·5· ·you're having a lot different reaction; right? ·6· ·A.· · Absolutely. ·7· ·Q.· · All right.· Are you familiar with the LD50 testing that ·8· ·was done for purposes of the Food and Drug Administration ·9· ·approval process with midazolam hydrochloride? 10· ·A.· · Yes. 11· ·Q.· · Okay.· And the reason you're familiar with that is 12· ·because you read Dr. Lubarsky's affidavit or declaration? 13· ·A.· · No.· It was in my previous work. 14· ·Q.· · Okay.· With respect to the LD50 test, it showed that 15· ·50 percent of mice receiving an intravenous dose of 16· ·50 milligrams per kilogram died; is that correct?· I'm saying 17· ·that because I'm not expecting you to remember that number 18· ·off the top of your head, but does that sound right to you? 19· ·A.· · Why don't you say that again. 20· ·Q.· · Sure.· 50 percent of the mice, which is what you're 21· ·doing when you're doing a lethal dose 50 test -22· ·A.· · Right. 23· ·Q.· · -- at an intravenous dose of 50 milligrams per 24· ·kilogram, died? 25· ·A.· · I don't have that number in front of me, but if you've Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 105 ·1· ·pulled that number out, let's go with it and see what happens ·2· ·here. ·3· ·Q.· · Okay.· But you reviewed Dr. Lubarsky's declaration; ·4· ·right? ·5· ·A.· · I scanned it this morning, yes. ·6· ·Q.· · When you saw that, did you say, whoa, those numbers ·7· ·aren't right, I better go check this, or did they seem in ·8· ·line? ·9· ·A.· · It certainly could be in line, yeah.· If you do an 10· ·LD50, though, on a human being, in rats, for instance, 250 -11· ·215 milligrams is the LD50.· 215 milligrams per kilogram is 12· ·the LD50 in rats, is the dose, to the LD50.· If you convert 13· ·that to an LD50 for a human being, that's a 70-kilogram 14· ·person.· You're talking about 15,000 milligrams.· So what 15· ·we're really talking about here -16· ·Q.· · How many thousand? 17· ·A.· · 15,000. 18· ·Q.· · That's a lot.· A lot more than 500 milligrams? 19· ·A.· · Sure, it is.· But, you know, this is a pharmacodynamic 20· ·impact that -- effect that we're talking about here.· And, 21· ·you know, we know that people who have taken as little as 22· ·70 milligrams of this drug have died. 23· ·Q.· · But that would be at the extreme end of the bell curve; 24· ·right? 25· ·A.· · Extreme left end or the extreme right? Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 106 ·1· ·Q.· · I'll go with left or right.· I'm facing you, so we've ·2· ·got different orientations. ·3· ·A.· · That's right, okay.· It's on the -- it's certainly -·4· ·in the normal therapeutic range, it's on the upper end of ·5· ·dosing, way out there, okay.· So 70 milligrams is, you know, ·6· ·12 to 15 times more than a normal dose. ·7· ·Q.· · But in terms of the LD50, that would be the extreme end ·8· ·of somebody actually dying because of a low dose? ·9· ·A.· · Right. 10· ·Q.· · But the other extreme end, people could be alive at 11· ·even higher doses than the 15,000 you talked about? 12· ·A.· · Unlikely. 13· ·Q.· · Well, that's how bell curves work with LD50s? 14· ·A.· · I know, but you're talking about rats here, not 15· ·necessarily people. 16· ·Q.· · Okay.· But that's -- we experiment on rats, not people, 17· ·and that's what -- how the FDA and people decide if the drugs 18· ·are safe for their purpose; right? 19· ·A.· · And we try to extrapolate what happens in rats to 20· ·humans, and I can tell you that the pharmacodynamic effects 21· ·are different.· So, you know, telling me that we have to have 22· ·15,000 milligrams of drug, of midazolam, to kill 50 percent 23· ·of humans is probably not very accurate. 24· ·Q.· · But we -- you don't know, right, whether it's 15,000, 25· ·14,000? Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 107 ·1· ·A.· · I'm not so sure that you have to have a scientific ·2· ·experiment to do this, because you have to be able to use the ·3· ·data in front of you about the therapeutic effects and the ·4· ·pharmacological effects of this drug in the dose/response ·5· ·relationship and, frankly, we know that as we get into the ·6· ·larger doses, we begin to get into anesthesia, we begin to ·7· ·get into shutting down systems, body systems, and essentially ·8· ·we end up eventually causing the person to die. ·9· · · · · · So the eventual part is just a cascade as the whole 10· ·system begins to shut down, and it happens very rapidly with 11· ·this drug. 12· ·Q.· · Which -- I mean, I'm not trying to beat a dead horse, 13· ·but 5 minutes, 10 minutes, 15 minutes, we don't know? 14· ·A.· · We don't know.· The shorter -- the shorter is most 15· ·likely. 16· ·Q.· · But that's a guess; right? 17· ·A.· · Sure, it's a guess.· Hopefully an educated guess. 18· · · · · · MR. NORGARD:· If I could just have a moment, Your 19· ·Honor? 20· · · · · · THE COURT:· Yes, sir. 21· ·BY MR. NORGARD: 22· ·Q.· · All right.· The last area of questioning that I want to 23· ·get into is barbiturates and benzodiazepines, such as 24· ·midazolam hydrochloride are basically different drugs; right? 25· ·A.· · Yes. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 108 ·1· ·Q.· · The barbiturates are derived from barbiturates; right? ·2· ·A.· · Yes, they are barbiturates, yeah. ·3· ·Q.· · And the benzodiazepines are made by basically benzene ·4· ·rings and diazepine rings, and you have a different drug; ·5· ·right? ·6· ·A.· · A different drug, yeah.· Different chemical drug, let's ·7· ·put it like that. ·8· · · · · · MR. NORGARD:· All right.· I don't have any other ·9· ·questions.· Thank you. 10· · · · · · THE COURT:· Thank you, Mr. Norgard. 11· · · · · · Mr. Browne? 12· · · · · · MR. BROWNE:· Briefly, Your Honor. 13· · · · · · THE COURT:· Yes, sir. 14· · · · · · · · · · ·REDIRECT EXAMINATION 15· ·BY MR. BROWNE: 16· ·Q.· · Doctor, as a pharmacologist, one of your duties or 17· ·description of that field, pharmacology, is studying drugs, 18· ·often at the behest of manufacturers, to determine what the 19· ·impact or effect of particular drugs will be on human 20· ·subjects? 21· ·A.· · Right. 22· ·Q.· · Would that be fair to say? 23· ·A.· · Yes. 24· ·Q.· · So, in fact, if you are reading studies on drugs and 25· ·their impact and -- on human subjects, it's very likely that Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 109 ·1· ·those studies are authored by pharmacologists; is that ·2· ·correct, Doctor? ·3· ·A.· · A great number of them are, yes, both -- both at the ·4· ·basic discovery level as well as the clinical application ·5· ·level. ·6· ·Q.· · So even though you don't personally prescribe these ·7· ·drugs or use them to render someone unconscious, it is part ·8· ·of your profession to understand how they impact human ·9· ·subjects; is that correct, Doctor? 10· ·A.· · Yes, that's true. 11· ·Q.· · Now, Doctor, you mentioned that you have determined or 12· ·had case studies where death is brought about by as little as 13· ·71 milligrams of midazolam? 14· ·A.· · Yes. 15· ·Q.· · And so if we were extrapolating a therapeutic or a 16· ·loading dose of, say, 50 milligrams, you wouldn't want to go 17· ·much higher than that, would we, on human subjects? 18· ·A.· · Well, no, you wouldn't want to go that high in a human 19· ·subject at one time.· I think this case that we're talking 20· ·about was essentially an abuse case where somebody injected 21· ·the drug in an attempt to gain some pleasurable impact from 22· ·it. 23· ·Q.· · So we're not just guessing, are we, that 500 milligrams 24· ·will ultimately lead to death, are we, Doctor? 25· ·A.· · No, we're not. 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Hearing, Evidentiary on 02/05/2014 Page 110 ·1· ·Q.· · And in fact, in the literature that you studied and the ·2· ·FDA labeling and other material, is there not -- are there ·3· ·not cautionary statements, particularly when dealing with the ·4· ·elderly or young children? ·5· ·A.· · There's a black box warning regarding that, yes. ·6· ·Q.· · In other words, they caution practitioners to be ·7· ·careful not to provide an overdose and to slowly administer ·8· ·it; is that correct? ·9· ·A.· · That's true. 10· ·Q.· · And they are concerned because it can actually shut 11· ·down your brain and then other systems; is that correct? 12· ·A.· · Exactly. 13· ·Q.· · Doctor, you mentioned something about CNS receptors. 14· ·Can you tell me a little bit about what you meant by that? 15· ·A.· · The CNS receptors are GABA receptors within the brain 16· ·that are receptors that are -- when you block them, you 17· ·basically prevent the stimulus responses that -- they're 18· ·inhibitory receptors, so they inhibit activity.· So when you 19· ·block them, you get -- to the extent we're talking about, you 20· ·basically shut those receptors down.· You tie them up with 21· ·the drug. 22· ·Q.· · So, in other words, an individual who has had his 23· ·receptors blocked with a clinical overdose of midazolam, is 24· ·not going to feel any noxious stimuli, will they, Doctor? 25· ·A.· · It's unlikely. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 111 ·1· ·Q.· · And at 500 milligrams, isn't that extremely unlikely? ·2· ·A.· · Very unlikely. ·3· ·Q.· · Doctor, are you aware of the possibility of -- do ·4· ·individuals who pass away, sometimes their eyes open? ·5· ·A.· · Yes, they do.· And you -- you have to think about the ·6· ·westerns, when somebody comes up and closes their eyes.· So ·7· ·when somebody goes into a comatose state or a deep surgical ·8· ·anesthesia, their eyes oftentimes will open. ·9· ·Q.· · And are there sometimes during surgeries, procedures in 10· ·place, Doctor, to actually make sure that someone's eyes are 11· ·protected? 12· ·A.· · They tape the eyes shut. 13· ·Q.· · And is that because on a very deep level of 14· ·unconsciousness the eye may in fact open? 15· ·A.· · Yes, and will dry, and that's why they shut them. 16· ·Q.· · And you have experience, Doctor, working in hospitals; 17· ·is that correct? 18· ·A.· · Yes. 19· · · · · · MR. BROWNE:· No further questions, Your Honor. 20· ·Thank you. 21· · · · · · THE COURT:· Mr. Norgard? 22· · · · · · MR. NORGARD:· I don't have any further questions, 23· ·Your Honor. 24· · · · · · THE COURT:· Thank you very much, Dr. Evans. 25· · · · · · THE WITNESS:· You're welcome.· I hope this was Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 112 ·1· ·helpful. ·2· · · · · · THE COURT:· You are excused, sir. ·3· · · · · · THE WITNESS:· Thank you. ·4· · · · · · MR. BROWNE:· Thank you, Doctor. ·5· · · · · · THE COURT:· Very good.· Let's take a five-minute ·6· ·recess. ·7· · · · · · COURT SECURITY OFFICER:· All rise. ·8· · · · · · (Recess taken from 1:11 p.m. to 1:21 p.m.) ·9· · · · · · COURT SECURITY OFFICER:· All rise.· This Honorable 10· ·Court is back in session.· Please be seated. 11· · · · · · THE COURT:· Mr. Norgard and Ms. Rudenstine and 12· ·Mr. Browne, if you wish to make argument on the import of the 13· ·testimony that now has been added to our work, I'll give you 14· ·that opportunity.· If you choose not to do that, I am going 15· ·to ask you to, as I did previously in the order setting this 16· ·hearing, offer some argument on Muhammad and its 17· ·distinguishing features from this case. 18· · · · · · MR. NORGARD:· Okay. 19· · · · · · THE COURT:· Preference?· One or both, if you choose. 20· · · · · · MR. NORGARD:· Before we do that, could I call 21· ·Dr. Lubarsky for very brief rebuttal?· Three questions for 22· ·him. 23· · · · · · THE COURT:· Yes, I'll allow that. 24· · · · · · MR. NORGARD:· Thank you, sir. 25· · · · · · THE COURT:· Dr. Lubarsky, I'll remind you that you Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 113 ·1· ·remain under oath. ·2· · · · · · THE WITNESS:· Yes, Your Honor. ·3· · · · · · · · · · · · DAVID LUBARSKY, ·4· ·recalled as a witness on behalf of the Plaintiff, testified ·5· ·as follows: ·6· · · · · · · · · · · · DIRECT EXAMINATION ·7· ·BY MR. NORGARD: ·8· ·Q.· · Dr. Lubarsky, just three areas that I want to ask you ·9· ·about.· First of all, is midazolam ever used to induce comas? 10· ·A.· · Not of which I'm aware. 11· ·Q.· · And that's based on your extensive experience, 12· ·training, familiarity with the use of midazolam in your 13· ·field? 14· ·A.· · That's correct.· We run one of the largest trauma 15· ·centers in the United States of America, and we don't induce 16· ·comas with midazolam.· We do with barbiturates. 17· ·Q.· · Have you ever seen any literature talking about using 18· ·midazolam as a coma-inducing drug? 19· ·A.· · Yes.· It doesn't work because you cannot obtain EEG 20· ·silence. 21· ·Q.· · It does not work? 22· ·A.· · It does not work. 23· ·Q.· · Okay. 24· ·A.· · As a full coma agent. 25· ·Q.· · Just a couple questions about the eye-open thing.· Why Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 114 ·1· ·are eyes taped?· I mean, Dr. Evans testified it's so they ·2· ·don't open their eyes during surgery.· Why are eyes -- you do ·3· ·surgery and you're are anesthesiologist in there.· Why do you ·4· ·tape the eyes shut? ·5· ·A.· · We tape the eyes shut because anesthesiologists are ·6· ·working around the head and the neck and they can ·7· ·inadvertently lift up the eyelid and scratch the cornea.· Our ·8· ·nametags, our badges, our stethoscopes, the tubing to the ·9· ·endotracheal tube are all potential hazards.· We tape the 10· ·eyes for the sole purpose of protecting the cornea, not 11· ·because we expect that the patient is going to open their 12· ·eyes. 13· ·Q.· · And if there is a surgical plane of anesthesia where 14· ·they're insensate, are they going to be able to open their 15· ·eyes? 16· ·A.· · No. 17· ·Q.· · One thing that I just wanted to completely clarify for 18· ·our purposes here.· But using a drug to -- as an induction 19· ·for anesthesia, is that different than the actual drugs used 20· ·to achieve a surgical plane sufficient to render a person 21· ·insensate for noxious stimuli? 22· ·A.· · They are very different and they are not equal or 23· ·substitutable. 24· ·Q.· · And midazolam is not what you would use for the 25· ·surgical plane where the person would be insensate? Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 115 ·1· ·A.· · That is correct.· It would not be sufficient, and ·2· ·therefore it is not recommended to use it as a sole ·3· ·anesthetic agent for any surgical operation. ·4· · · · · · MR. NORGARD:· That's it, Your Honor. ·5· · · · · · THE COURT:· Mr. Browne, any cross? ·6· · · · · · MR. BROWNE:· Thank you, Your Honor.· No questions. ·7· · · · · · THE COURT:· Thank you, Dr. Lubarsky. ·8· · · · · · In fairness, do you wish to recall Dr. Evans? ·9· · · · · · MR. BROWNE:· Your Honor, I'm not sure we could 10· ·actually do that, given the doctor's schedule, but thank you. 11· · · · · · THE COURT:· Very good. 12· · · · · · Argument, Ms. Rudenstine? 13· · · · · · MS. RUDENSTINE:· Yes, Your Honor.· One moment, 14· ·please, Your Honor. 15· · · · · · THE COURT:· Yes, ma'am. 16· · · · · · MS. RUDENSTINE:· Okay.· Your Honor, I'll just 17· ·quickly go through what came out here that I think speaks 18· ·most directly to. 19· · · · · · THE COURT:· Would you use the podium, please, if you 20· ·don't mind. 21· · · · · · MS. RUDENSTINE:· Oh, absolutely. 22· · · · · · I'll speak most directly to the issues that came out 23· ·in testimony pertaining to the distinction between the 24· ·Muhammad case and this case. 25· · · · · · And just to review, to get beyond the res judicata Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 116 ·1· ·issue, we have to demonstrate that there are new experts ·2· ·and/or new factual allegations provided by the experts that ·3· ·would create justiciable issues of fact, and any new evidence ·4· ·in the field that's been developed or discovered since the ·5· ·prior proceeding and any new claims, and we have all of those ·6· ·present in this case. ·7· · · · · · Doctor Lubarsky, of course, is a new expert.· He did ·8· ·not testify in Mr. Chavez's case for the reason that ·9· ·Mr. Chavez did not get a hearing.· He also did not testify in 10· ·Mr. Muhammad's case.· Arthur versus Thomas clearly forecloses 11· ·the possibility that the hearing can be denied when new 12· ·expert testimony is being offered that creates a justiciable 13· ·issue of fact. 14· · · · · · And just a few of those facts I'll highlight for the 15· ·Court, which were not presented previously in the Muhammad 16· ·case, is midazolam is not approved by the FDA by itself to 17· ·induce anesthesia.· That's an issue on which Dr. Evans and 18· ·Dr. Lubarsky disagreed.· It has never been used that way in 19· ·the field.· Based on numerous factors, it's reasonable to 20· ·assume that Mr. Happ, Mr. Muhammad and Mr. McGuire, all of 21· ·whom underwent executions with the use of midazolam, felt the 22· ·impact of the second and third drugs when they were executed. 23· ·And that, again, is an issue on which the two experts 24· ·disagree. 25· · · · · · Giving a high dose of midazolam in the area of Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 117 ·1· ·500 milligrams makes it no more likely to cause a surgical ·2· ·plane of anesthesia than giving a known treatable amount of ·3· ·midazolam.· And, again, the two experts disagree on that ·4· ·point based on the ceiling that Dr. Lubarsky testified about. ·5· · · · · · Extrapolating from animal studies, doses of ·6· ·4,000 milligrams given to 170-pound man would only cause ·7· ·death in 50 percent of individuals, was what Dr. Lubarsky ·8· ·testified to, while Dr. Evans testified that he was quite ·9· ·sure an individual would be rendered dead with the kind of 10· ·doses that we have in this case.· And these are all 11· ·justiciable issues of fact that go to the very core of the 12· ·issue here, which is, is midazolam likely to cause a surgical 13· ·plane of anesthesia.· And Dr. Lubarsky explicitly testifies 14· ·that it is not used for that, it never has been used for 15· ·that, the FDA does not allow it, and therefore we have no 16· ·reason to think that it works in that intended manner. 17· · · · · · The second thing we have here is new evidence. 18· ·That's the Muhammad execution and the McGuire execution, 19· ·about which Dr. Lubarsky has opined that it's reasonable to 20· ·assume that their bodily movements were a reaction to the 21· ·noxious stimuli, meaning that they actually felt the pain of 22· ·the second and third drug, rather than just we had a, 23· ·quote/unquote, mishap, or that there was some kind of 24· ·involuntary reaction.· And, again, that is the core issue on 25· ·which the two experts disagree.· And I would respectfully Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 118 ·1· ·point out that if you agree with Dr. Lubarsky, then we have ·2· ·three out of four inmates -- and the fourth execution we ·3· ·think is inconclusive -- who experienced the extreme pain ·4· ·caused by those noxious stimuli, and therefore there is ·5· ·absolutely no way to say that it is not likely that midazolam ·6· ·will cause a torturous death. ·7· · · · · · THE COURT:· How is this Court to reconcile that ·8· ·argument with findings in Muhammad and some of its ancestry? ·9· ·If I recall correctly, that movement alone does not connote 10· ·pain. 11· · · · · · MS. RUDENSTINE:· Well, Your Honor, in Muhammad, we 12· ·had Dr. Heath and Dr. Evans, Dr. Heath being the defense 13· ·expert, both testifying that that was the case.· So, 14· ·actually, there was not a disagreement in Muhammad on that 15· ·issue.· We now have a disagreement because Dr. Lubarsky very 16· ·much disagrees with that conclusion.· And in addition, of 17· ·course, we didn't have McGuire and we didn't have the 18· ·Muhammad executions, so obviously your point is well taken, 19· ·which is that as a condition of that finding, one has to 20· ·agree that movement equals pain, and that's the new evidence 21· ·that we're bringing, the new testimony combined with the new 22· ·evidence that we're bringing to the table. 23· · · · · · The other new evidence which is relevant to the 24· ·three-to-one drug protocol as I mentioned earlier is that we 25· ·have Louisiana having switched as to a one-drug protocol Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 119 ·1· ·since Muhammad, and actually today at lunch I read on the ·2· ·front page of the Washington Post that the Virginia ·3· ·legislature is now considering bringing back the electric ·4· ·chair.· So there's considerable movement on this issue in the ·5· ·last month, in the last two months since Muhammad, since ·6· ·Mr. Chavez's pleadings were filed.· The extent to which the ·7· ·states are now questioning whether a three-drug protocol or ·8· ·maybe in even in the case of Virginia, lethal injection at ·9· ·all comports with the Eighth Amendment. 10· · · · · · So that claim, while having been raised earlier, 11· ·still has the potential to succeed on the merits.· In fact, 12· ·you know, depending on when a hearing is held in this case, 13· ·we may have even more evidence down the road.· So that claim 14· ·is not foreclosed by res judicata. 15· · · · · · And then finally, we have new claims in this case, 16· ·and all of the other claims remaining in the complaint are 17· ·new claims.· And I would just briefly respond on the 18· ·paralytic argument to two points made by opposing counsel in 19· ·opening arguments, the first being that the Fourteenth 20· ·Amendment is not an appropriate claim to be raising in this 21· ·context.· And as far as I know, a death row inmate has as 22· ·much right to liberty under the Fourteen Amendment as anybody 23· ·else.· So, yes, while it's -24· · · · · · THE COURT:· Emanating from where? 25· · · · · · MS. RUDENSTINE:· From the right to liberty in the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 120 ·1· ·due process clause of the Fourteenth Amendment. ·2· · · · · · THE COURT:· In the context of executions, why is not ·3· ·the Eighth Amendment the appropriate amendment to which this ·4· ·Court should look? ·5· · · · · · MS. RUDENSTINE:· Yes, Your Honor.· Well, the ·6· ·issue -- the core issue at the center of this claim is that ·7· ·inmates, as a vulnerable population -- and this is what the ·8· ·Court said in Sell and the two preceding cases on which it ·9· ·relied, Harper and Riggins, that -10· · · · · · THE COURT:· That death -- the causing of a death was 11· ·not a factual -- a fact in those cases that was considered by 12· ·the Court, was it? 13· · · · · · MS. RUDENSTINE:· That's correct, Your Honor, that's 14· ·correct.· But in Nelson versus Campbell, which was an 15· ·execution context case, the U.S. Supreme Court was examining 16· ·the propriety of a cut-down procedure to gain intravenous 17· ·access.· And what it said in that case was there is no 18· ·distinct -- and the State made the same argument in that 19· ·case, which is an execution context is different than a 20· ·treatment context.· And while we may have standards around 21· ·how we treat people, we can certainly administer a cut-down 22· ·procedure even if we can't prove that it's necessary to gain 23· ·access to the veins. 24· · · · · · What the U.S. Supreme Court said in that case is 25· ·there is absolutely no difference between a cut-down Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 121 ·1· ·procedure in an execution context and a cut-down procedure in ·2· ·a treatment context.· They are both forced procedures on ·3· ·inmates and they can both be considered under the Fourteenth ·4· ·Amendment. ·5· · · · · · And I would point to the other cases, Harper, ·6· ·Riggins and -- the name is escaping me, but the other case ·7· ·that we cited, the Eighth Circuit case we cited in our ·8· ·pleadings, all of which address competency, forced drugging ·9· ·to render someone competent.· And in the Eighth Circuit case, 10· ·that was in an execution context, and the question was does 11· ·an inmate have the freedom to be -- to resist forced 12· ·medication to render him competent to be executed.· And Sell 13· ·was applied in that context. 14· · · · · · And in the other cases, they looked at whether you 15· ·could render someone competent in the context of pretrial 16· ·proceedings and middle trial proceedings.· And the thing that 17· ·the Court is looking at is, how do we weigh the State's 18· ·interest in achieving the goal, the penological goal, whether 19· ·it be taking them to trial or executing them, against the 20· ·inmate's freedom from a forced procedure or forced 21· ·medication.· And it doesn't matter whether we're talking 22· ·about a penological goal of death or a penological goal of 23· ·guilty or what, but the inmate, the prisoner, or the pretrial 24· ·defendant has a right to liberty in all of those contexts and 25· ·the State has to prove that they have a particular interest Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 122 ·1· ·in depriving the inmate of that right. ·2· · · · · · And those cases look at, predominantly, is it a ·3· ·necessary procedure, so was the cut-down procedure necessary ·4· ·to gain access to the veins, and/or is it necessary to ·5· ·prevent harm to the inmate or others, in the case of forced ·6· ·medication for competency.· And in fact, in -- I believe it's ·7· ·Riggins -- it may have been Harper -- that was not competency ·8· ·for trial.· That was a case in which the Attorney General was ·9· ·having inmates shipped, who were mentally ill, to a treatment 10· ·facility and forcing them to take medication simply to render 11· ·them, not competent for trial or anything, but simply to 12· ·treat them, and someone resisted that treatment.· And there 13· ·again, the Court looked at weighing the State's interest, was 14· ·that inmate going to harm himself or others, against the 15· ·medical propriety of the drug, will it do -- will it actually 16· ·do anything to achieve the goal. 17· · · · · · And of course in this case we've presented evidence 18· ·that the paralytic does nothing to achieve any goal 19· ·enunciated by the Department of Corrections.· And that brings 20· ·me to my second point, which is that the State argued that 21· ·the U.S. Supreme Court in Baze has already decided that there 22· ·is a viable purpose of the paralytic.· That was drawn from 23· ·testimony, as you rightly pointed out, presented in the 24· ·Kentucky Circuit Court based on the Kentucky DOC's 25· ·representations as to why they used the paralytic.· And so Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 123 ·1· ·that was a factual finding made by the Circuit Court, and the ·2· ·U.S. Supreme Court simply applied that factual finding to its ·3· ·analysis.· No such evidence has been offered here.· We don't ·4· ·know why the DOC uses it, but we've offered testimony from ·5· ·former Secretary of the Department of Corrections McDonough ·6· ·that there is no purpose other than for the comfort of the ·7· ·witnesses and the dignity of the defendant, neither of which ·8· ·is a medical purpose, neither of which is necessary to ·9· ·achieve execution.· And so, therefore, the defendant's 10· ·interest, which is far, far more important here because it 11· ·has to do with his ability to convey that he is not 12· ·unconscious -- if possible at the time -- and therefore 13· ·potentially ward off incredibly painful execution, far 14· ·outweighs the comfort of the witness's interests that 15· ·Secretary McDonough puts forward.· And in the absence of any 16· ·other evidence proffered by the State as to what possible 17· ·purpose the paralytic has, certainly we would prevail on that 18· ·claim. 19· · · · · · And that's all for now, Your Honor.· Thank you. 20· · · · · · THE COURT:· Thank you. 21· · · · · · Mr. Browne? 22· · · · · · MR. BROWNE:· Your Honor, I'll first address the 23· ·application of Muhammad. 24· · · · · · The Eleventh Circuit in Muhammad made it very clear 25· ·that res judicata applies not only to those claims that the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 124 ·1· ·defendant actually raised in state court proceedings, but ·2· ·those he could have raised.· And in this case that is exactly ·3· ·the posture that Mr. Chavez is in before this Court.· There ·4· ·was nothing preventing him from raising those Dr. Lubarsky ·5· ·affidavits, the paradoxical reaction, in state court.· For ·6· ·whatever reason, he chose not to raise those claims.· He ·7· ·chose to adjudicate his lethal injection challenge under the ·8· ·Eighth Amendment in state court.· He is now seeking a second ·9· ·bite at the apple.· His lawsuit is clearly precluded.· He 10· ·chose to go to state court, render his constitutional claim 11· ·in a competent court.· His claims have been adjudicated.· Res 12· ·judicata applies to bar his suit. 13· · · · · · Now, with regard to, briefly, some of the other 14· ·arguments made here, the argument that Mr. Chavez has a right 15· ·to liberty is, frankly, ridiculous, Your Honor.· He is 16· ·confined on death row for capital murder, and I won't go into 17· ·the facts, but it is a well-deserved punishment that awaits 18· ·Mr. Chavez.· The idea that he has any liberty interest is 19· ·absurd. 20· · · · · · Now, the involuntary line of medication cases, 21· ·that's an interesting case on lethal injection.· If we were 22· ·to follow Mr. Chavez's argument, he could simply refuse 23· ·potassium bromide as well because he might choose not to have 24· ·his death in any manner be effected by the State of Florida. 25· ·So I don't think any of those lines of cases under the Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 125 ·1· ·Fourteenth Amendment applies. ·2· · · · · · The law that applies here, Your Honor, is the Eighth ·3· ·Amendment.· It is the amendment that directly applies.· Now, ·4· ·there's clear case law from the Supreme Court that says, when ·5· ·you have a specific amendment from the Constitution, like the ·6· ·Eighth Amendment, that is the amendment to apply, not due ·7· ·process. ·8· · · · · · So in this case the standard is clear.· It's well ·9· ·set forth.· And that is, has the defendant shown that the 10· ·State of Florida is about to execute him with a method that 11· ·is sure or very likely to inflict serious bodily injury and 12· ·needless suffering. 13· · · · · · Now, the Eighth Amendment, Your Honor, is a floor. 14· ·It is not the best practices.· It's not what could 15· ·theoretically be possible.· It is a constitutional floor. 16· ·And the Eleventh Circuit has rejected virtually every one of 17· ·these arguments repeatedly; in Valle, in Pardo, in Mann.· The 18· ·same arguments that he is making about the one-drug protocol 19· ·being necessary, no, that's not legally sufficient to state a 20· ·claim under the Eighth Amendment. 21· · · · · · So what we're left with here -- and if you -- if 22· ·Your Honor wants me to address briefly some of the factual 23· ·testimony here, I think if we need to address that at all, 24· ·it's rather clear, Dr. Lubarsky indicated on 25· ·cross-examination that he could not say the State of Florida Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 126 ·1· ·and its execution of Mr. Chavez with midazolam is sure or ·2· ·very likely to inflict serious bodily injury and needless ·3· ·suffering.· Their own expert said, Well, I don't have enough ·4· ·information, I don't believe I could render that opinion. ·5· ·And I'm paraphrasing, but his answer was clear. ·6· · · · · · Now, he would want, certainly, a risk-free ·7· ·proposition, and he -- I don't know if there's any execution ·8· ·method in the country that Dr. Lubarsky would be comfortable ·9· ·with, even though he states it's switched to, an opiate or 10· ·one-drug protocol, miraculously still have these lethal 11· ·injection challenges, even when there's no vecuronium bromide 12· ·or potassium chloride.· So that the notion that we think, 13· ·simply switch to a one-drug cocktail and all these defendants 14· ·will be happy, is simply untrue.· The real reason for 15· ·Mr. Chavez's lawsuit in this case is clearly to avoid or 16· ·delay the lawful punishment that was imposed upon him by the 17· ·State of Florida. 18· · · · · · And if we look at the testimony, you have Muhammad, 19· ·where the efficacy and safety of midazolam was clearly 20· ·established.· And I'm talking about the state court here. 21· ·Dr. Heath wasn't some, you know, fly-by-night expert.· He is 22· ·a board-certified anesthesiologist, and he says, I use 23· ·midazolam every single day in my practice, it safely and 24· ·effectively ablates consciousness.· And that's a quote.· When 25· ·asked by the Court what does that mean, destroys Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 127 ·1· ·consciousness. ·2· · · · · · So we have not only Dr. Evans who reaffirmed his ·3· ·prior testimony here.· There is no doubt in his mind ·4· ·whatsoever that in these amounts, the 250 milligrams given ·5· ·twice, there is no doubt in his mind, that individual will be ·6· ·insensate, unconscious and incapable of feeling pain. ·7· · · · · · Now, balanced against that testimony, you have ·8· ·Dr. Lubarsky, and he acknowledged that 50 milligrams of ·9· ·midazolam for a 180-pound man will render you unconscious. 10· ·Now, he claims that it doesn't have analgesic properties, but 11· ·the reason for that is we're not doing a surgical procedure 12· ·here, Your Honor.· If you're doing a surgical procedure, you 13· ·might want to have an opiate when you come out of surgery. 14· ·You don't want to feel any pain.· That's not what happens 15· ·here.· We're not performing -- the State of Florida is not 16· ·performing a medical procedure.· We are effecting 17· ·Mr. Chavez's death and we intend to do so. 18· · · · · · That's not a surgical procedure.· It's not a medical 19· ·procedure.· And we have certainly met or surpassed the floor 20· ·set by the Supreme Court in Baze.· We have a consciousness 21· ·check.· You notice, Your Honor, there was some testimony -22· · · · · · THE COURT:· Mr. Browne, was it Baze that opined that 23· ·the vecuronium bromide and potassium chloride injections 24· ·without an anesthetic would be cruel and unusual punishment? 25· · · · · · MR. BROWNE:· I believe there is language that you Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 128 ·1· ·can -- yes, Your Honor, I believe they would not have ·2· ·confirmed Kentucky's protocol if they simply administered ·3· ·vecuronium and potassium bromide.· I think that's correct, ·4· ·yes.· But the point is, Your Honor, if you have an Eighth ·5· ·Amendment floor, we are far above that floor in our protocol. ·6· ·We've established it in Muhammad.· We've established it by ·7· ·case law.· And even the resort to paradoxical reactions, did ·8· ·you hear anything compelling on or about paradoxical ·9· ·reactions?· Dr. Lubarsky admitted it's about a 1 percent 10· ·probability in general.· And you would notice it, wouldn't 11· ·you?· He described it.· You would be -- you could talk, you'd 12· ·be moving, thrashing about and aggressive.· Florida has a 13· ·consciousness check in our protocol, and that was something 14· ·that Kentucky didn't have in Baze.· It was not 15· ·constitutionally required.· Justice Ginsburg commended 16· ·Florida for having a consciousness check. 17· · · · · · The likelihood of someone having that paradoxical 18· ·reaction and it not being noticed is infinitesimally small. 19· ·So small that Mr. Chavez could not possibly meet his burden 20· ·of proof under the Eighth Amendment. 21· · · · · · And again, without even resort to this hearing 22· ·testimony, the State of Florida believes it is entitled to 23· ·judgment on the pleadings in this case, and we ask as much 24· ·from Your Honor.· And I very much appreciate your time, Your 25· ·Honor. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 129 ·1· · · · · · THE COURT:· Thank you. ·2· · · · · · MR. NORGARD:· I'm going to do our rebuttal. ·3· · · · · · A little early for a judgment on the pleadings ·4· ·since, you know, to a certain extent the Court has to take ·5· ·our claims as true and our affidavits as true. ·6· · · · · · I'm going to be very concise and focus on clearly ·7· ·distinguishing this case from Muhammad. ·8· · · · · · First thing I'm going to take head on is the statute ·9· ·of limitation issue.· I'm not going to try to regurgitate 10· ·facts for Your Honor.· You had the opportunity to hear this 11· ·full hearing.· You know, I don't know how quick you're going 12· ·to get a transcript, but one of the things, when you look at 13· ·the facts or look at the -- if it's just your bench notes and 14· ·not a transcript, there is a significant, substantial 15· ·difference between sodium thiopental and pentobarbital versus 16· ·midazolam hydrochloride.· They're in a totally different 17· ·family. 18· · · · · · Throughout these proceedings you heard differences 19· ·between the barbiturates versus the benzodiazepines.· This is 20· ·what we are talking about when it comes to a substantial 21· ·change.· The first two are barbiturate derivatives.· The 22· ·other is a benzene ring, a diazepine ring. 23· · · · · · THE COURT:· Well, Mr. Norgard, putting that aside, 24· ·is not the critical issue, though, whether or not in their 25· ·impact they are significantly different, as opposed to Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 130 ·1· ·whether or not they have different names? ·2· · · · · · MR. NORGARD:· I agree with that.· And what I was ·3· ·building towards is when you start, even within their basic ·4· ·chemical structure, work their way towards how they affect ·5· ·the body, work your way through the facts regarding how they ·6· ·are used in -- as far as, you know, the sodium thiopental and ·7· ·pentobarbital are used to induce comas.· Midazolam is not. ·8· ·Midazolam is -·9· · · · · · THE COURT:· Arguably not.· I believe Dr. Evans 10· ·testified that not that it was used to induce comas, but that 11· ·it was used to maintain a comatose state, which was not the 12· ·question that put to Dr. Lubarsky on your rebuttal 13· ·examination. 14· · · · · · MR. NORGARD:· Well, bottom -- okay, let me phrase it 15· ·this way and then I'll get back to what I was addressing. 16· · · · · · I'm going to, first of all, go back to square one 17· ·and then I'll get into my argument.· What this Court is going 18· ·to need to do, obviously is you've heard from two different 19· ·experts.· It will be your job, obviously, to ultimately 20· ·determine credibility, to determine weight.· And I'm not 21· ·going to do this for you like I would with a jury, but when 22· ·you go through the various credibility factors and when you 23· ·stack up what was said by these doctors, both on direct and 24· ·cross, I would submit that the most credible witness was 25· ·Dr. Lubarsky, has the adequate training, practices in that Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 131 ·1· ·area, has the type of qualifications to do what he's talking ·2· ·about.· We weren't dealing with somebody who was simply ·3· ·giving theoretical conclusions who, when pressed on the point ·4· ·said, well, what is the evidence that supports it.· You know, ·5· ·on the issue of death, is it 50 -- you know, on the issue of, ·6· ·for example, when does it reach the saturation or ceiling ·7· ·point?· Is it 50, 60, 70, 100?· Oh, I don't know.· Even ·8· ·though on direct he said more is better.· Obviously more ·9· ·isn't better.· I'll let you do the credibility part. 10· · · · · · But in the context of the overall record, what I was 11· ·building towards was they are different chemically.· They are 12· ·different in how they affect the body.· They're different in 13· ·how they are used and they are different in their effects. 14· ·They're as different as apples and oranges.· They're as 15· ·different as salt and pepper.· That's why it's a substantial 16· ·change.· You have the testimony of Dr. Lubarsky to rely on. 17· ·You can look at what Dr. Evans said about the differences 18· ·between the drugs.· I feel that that's supported in the 19· ·record. 20· · · · · · And the reason that I am so grateful that we're here 21· ·talking to you versus writing, is that, you know, Judge 22· ·Corrigan in Muhammad was basing his decision on what was in 23· ·reported opinions.· You've heard from the horses' mouths 24· ·themselves, in terms of what these differences are.· It's not 25· ·just the mere substitution of one anesthesia for another. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 132 ·1· ·Clearly, the credible evidence shows that midazolam ·2· ·hydrochloride is not used as an anesthetic.· It's used as a ·3· ·premedication.· It's used to induce anesthesia, but it's not ·4· ·used as an anesthetic in highly noxious situations.· Bottom ·5· ·line, it's different. ·6· · · · · · As far as the res judicata issue, I have no problem ·7· ·with Mr. Muhammad being res judicata'd.· He got a hearing in ·8· ·state court where he was allowed to produce his expert, ·9· ·Dr. Heath.· The State produced Dr. Evans.· He lost.· It was 10· ·reviewed on appeal by the Florida Supreme Court, and under 11· ·the Eleventh Circuit case law.· I understand res judicata in 12· ·that context. 13· · · · · · We, in Chavez, begged the Court for an evidentiary 14· ·hearing, begged the Court for an opportunity to amend our 15· ·pleadings, given that we had literally 3 days to file a 16· ·successor motion and address everything.· We were denied an 17· ·evidentiary hearing.· We did not have the opportunity to 18· ·produce Dr. Lubarsky.· And in my arguments to the trial 19· ·court, I pointed out the deficiencies in Dr. Heath's 20· ·testimony, the deficiencies in Dr. Evans' cross X, the 21· ·deficiencies and the conclusions that could be corrected by 22· ·an effectively presented evidentiary hearing.· We did not get 23· ·an evidentiary hearing. 24· · · · · · THE COURT:· Let me make sure I understand the state 25· ·of the record below.· I recall language in the Supreme Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 133 ·1· ·Court's opinion in Chavez that there was not testimony ·2· ·presented.· I didn't take from the reading of just that ·3· ·opinion that it had been sought and denied.· Mr. Chavez did ·4· ·not have any evidentiary hearing -·5· · · · · · MR. NORGARD:· No evidence -·6· · · · · · THE COURT:· -- in the lower courts? ·7· · · · · · MR. NORGARD:· None at all, period.· We were not ·8· ·allowed to call a single witness on the subject of lethal ·9· ·injection.· Because when you look at the case law in and 10· ·history of the Florida Supreme Court, they have adopted the 11· ·position that whoever happens to come up first, in terms of 12· ·litigation, to litigate a lethal injection claim, that's your 13· ·one shot for everybody and anybody and we don't want to hear 14· ·any additional new evidence on that point.· Which I've got to 15· ·commend the Eleventh Circuit for their Arthur opinion where 16· ·they do recognize that in a scientific context courts -- it's 17· ·not just -- I mean, if the FDA weren't like that, like it's, 18· ·okay, you call your expert, we'll call ours and that's the 19· ·end of the story, this world would be in a terrible 20· ·situation.· You know, we are presenting new and distinct 21· ·evidence.· I'd put my cross-examination of Dr. Evans against 22· ·anything that came out in Muhammad in terms of showing why 23· ·his testimony is not credible, why you can't rely on it, what 24· ·the deficiencies are in his testimony.· So, you know, res 25· ·judicata does not apply to us. Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 134 ·1· · · · · · And on the Eighth Amendment claim, you know, in ·2· ·these contexts it comes down to a judge making the call, a ·3· ·judge making findings of fact, a judge making determinations ·4· ·as to credibility, making determinations as to what was ·5· ·presented and proved, and I will stand by what we presented ·6· ·in this courtroom. ·7· · · · · · Midazolam hydrochloride, is a first drug in this ·8· ·three-drug protocol; does not render the person insensate. ·9· ·And in fact, Dr. Evans testified that those high dosages in 10· ·his opinion would cause respiratory arrest and oxygen 11· ·starvation.· Well, that's part of the whole complaint about 12· ·vecuronium bromide, is that it paralyzes the diaphragm and 13· ·the person can't breathe.· And I was like pulling teeth to 14· ·get them to admit that that's painful, but my gosh, anybody 15· ·who has ever experienced oxygen deprivation knows how painful 16· ·that is.· And it starts at the very beginning of the process 17· ·with, according to Dr. Evans, the administration of 18· ·midazolam. 19· · · · · · This is a situation where, from the word go, there 20· ·is no analgesic.· And for Dr. Evans to say, oh, we don't need 21· ·a painkiller -- they do not do surgery using midazolam, 22· ·because the person is not going to remember the incredible 23· ·pain they are in necessarily, but even Dr. Lubarsky said that 24· ·if it's bad enough, they're going to remember it. 25· · · · · · This is not a drug -- you know, if you're doing Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 135 ·1· ·surgery where there's going to be noxious stimuli, you use ·2· ·midazolam to induce anesthesia, then you use other ·3· ·anesthetics, and you even combine it, beginning with opioids, ·4· ·I mean, the classic painkiller.· This protocol does not do ·5· ·that.· It doesn't do anything to prevent pain. ·6· · · · · · And I -- you know, I -- again, I had -- it was like ·7· ·pulling teeth with Dr. Evans, but I'm sorry, somebody ·8· ·pressing on your eyeball or shaking your shoulder is not the ·9· ·same as being injected with these two drugs in this protocol, 10· ·one which paralyzes your diaphragm and breathing, and the 11· ·other which is, even in small doses, extremely caustic and 12· ·painful.· And based on what Dr. Evans said about, you know, 13· ·respiratory breathing being impaired just simply by the 14· ·midazolam, you know, we're talking incredible, unnecessary 15· ·pain. 16· · · · · · We've offered the alternatives, the one-drug 17· ·protocol.· I mean, I'm not a doctor, but I can speculate as 18· ·good as Dr. Evans, let's give him 500 milligrams.· Or since 19· ·he came up with the number 15,000, that's -- you know, when 20· ·they used the pentobarbital and stuff, they used 5,000 21· ·milligrams.· If more is better, let's use his 22· ·15,000 milligrams but pump them full of opioids so they don't 23· ·feel pain.· I mean, I'm not a doctor, but I can speculate a 24· ·way to kill people painlessly. 25· · · · · · The process you've heard, using a drug that doesn't Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 136 ·1· ·prevent pain, a consciousness check -- even Dr. Evans ·2· ·indicated a consciousness check at one point by pressing on ·3· ·an eyeball and shaking an arm, once the noxious stimuli is ·4· ·injected, a noxious stimuli that paralyzes you no matter how ·5· ·much the pain is, you can't move, that's what we've got going ·6· ·on here. ·7· · · · · · And so I'll tell you what I told the trial court ·8· ·when I was shut down from presenting anything.· I see a ·9· ·hearing where it's not just Dr. Lubarsky.· You know, we've 10· ·got other experts that, you know, we've talked to.· We have, 11· ·you know, information coming from the FDA about paradoxical 12· ·reactions under the FDAA, the Food and Drug Administration 13· ·Amendment Act.· Now paradoxical reactions are required to be 14· ·reported to the FDA; information from the manufacturer 15· ·Hospira.· You know, there's -- you know, the LD50 studies. 16· ·This Court, in a full-blown evidentiary hearing, could hear 17· ·that from the horse's mouth, not from the people who read 18· ·about it. 19· · · · · · But for purposes of distinguishing our case from 20· ·Muhammad, it's as much apples as to oranges, salt to pepper. 21· ·You know, this is an issue that needs to be seriously looked 22· ·at.· I mean, you know, that's why I work here.· That's why 23· ·we're asking this Court to do this.· Thank you very much. 24· · · · · · THE COURT:· Thank you. 25· · · · · · MR. BROWNE:· Your Honor, may I briefly address a Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 137 ·1· ·couple of the arguments made by counsel? ·2· · · · · · THE COURT:· I'll allow it. ·3· · · · · · MR. BROWNE:· I'll try to keep it very brief, Your ·4· ·Honor.· Thank you. ·5· · · · · · Mr. Norgard claims he screamed up and down, ·6· ·essentially requesting a hearing on his claims in state ·7· ·court.· Clearly, he did.· What he did not do is follow the ·8· ·pleading requirements of Rule 3.851, which require specific ·9· ·facts, and on a successive motion, what witnesses you would 10· ·have called to prove those facts.· What was absent from 11· ·Mr. Norgard's submission -- and he did not file an amended 12· ·motion -- was any mention of Dr. Lubarsky or any other 13· ·expert.· The fact that he did not do so does not rescue his 14· ·claim from res judicata, Your Honor, because again, Muhammad 15· ·makes it clear it's not only the issues that you raised, but 16· ·the issues you could have raised.· And based on the evidence 17· ·in the trial court, it was clear that summary denial under 18· ·Florida law was appropriate. 19· · · · · · Now, they mention the Arthur B. Thomas case.· I've 20· ·read Arthur v. Thomas, Your Honor.· I'm sure you have.· It 21· ·doesn't mention res judicata.· That case did not address res 22· ·judicata at all.· It is not precedent from which this Court 23· ·can distinguish Muhammad.· Again, Muhammad is directly on 24· ·point. 25· · · · · · Regarding the oxygen deprivation -- again, and Your Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 138 ·1· ·Honor heard the testimony -- midazolam will -- one of its ·2· ·side effects is suppressing, in higher doses, respiration. ·3· ·But what Mr. Norgard failed to mention was it's shutting down ·4· ·your brain as well.· You're not feeling the sensation of ·5· ·breathing or struggling to breathe because your brain has ·6· ·ceased to function; you are in a deep, comatose level of ·7· ·unconsciousness.· And that's why Dr. Evans, based upon the ·8· ·known effects of midazolam, could testify in court that at ·9· ·500 milligrams there is no chance that he is feeling pain. 10· ·He is in a comatose state.· Again, 71 milligrams, Your Honor, 11· ·is sufficient to, on certain cases studies, actually kill 12· ·someone.· And we are exceeding that dose multiple times over. 13· ·Midazolam is safe and effective for the purpose for which the 14· ·State of Florida intends to use it. 15· · · · · · We believe that there is no substantial likelihood 16· ·that Mr. Chavez would succeed on the merits of his claim in 17· ·federal court, and we ask that you deny the restraining order 18· ·and reject the stay of execution in this case. 19· · · · · · THE COURT:· Mr. Norgard, let me ask you, did you 20· ·author the declaration of Dr. Lubarsky in the State court, 21· ·consistent with the rules of procedure that would have 22· ·permitted you to have done that? 23· · · · · · MR. NORGARD:· The short answer is no.· What we did 24· ·is we filed our motion, made certain allegations that are -25· ·other than maybe the paradoxical reactions consistent with Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com YVer1f JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 139 ·1· ·the claims that we're presenting here.· When the State, at ·2· ·the -- what we call the Huff -- you're probably familiar with ·3· ·it -- at the Huff hearing in state court when they argued ·4· ·that the motion was insufficient, we had specifically in the ·5· ·motion asked for leave to amend, given that we had three days ·6· ·to do this.· We were denied any leave to amend to present an ·7· ·expert such as Dr. Lubarsky and the motion was denied without ·8· ·hearing and without leave to amend, even though Florida case ·9· ·law provides that you should get leave to amend.· So that's 10· ·where we were. 11· · · · · · THE COURT:· All right. 12· · · · · · MR. NORGARD:· Thank you, sir. 13· · · · · · THE COURT:· Lady and gentlemen, thank you all very 14· ·much for your presentations, and I will be deciding this 15· ·matter as expeditiously as I can.· Thank you. 16· · · · · · MR. BROWNE:· Thank you, Your Honor. 17· · · · · · COURT SECURITY OFFICER:· All rise. 18· · · · · · (Proceedings concluded at 2:05 p.m.) 19 20 21 22 23 24 25 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Page 140 ·1· · · · · · · · · · · · C E R T I F I C A T E ·2 ·3 ·4· ·UNITED STATES DISTRICT COURT) ·5· ·MIDDLE DISTRICT OF FLORIDA) ·6 ·7· · · · ·I hereby certify that the foregoing transcript is a ·8· ·true and correct computer-aided transcription of my stenotype ·9· ·notes taken at the time and place indicated therein. 10· · · · ·Dated this 7th day of February, 2014. 11 12 13 14 15 · · · · · · · · · ·L. MARIE SPLANE, CRR, RDR, FPR 16 17 18 19 20 21 22 23· ·Certified Realtime Reporter (CRR) 24· ·Registered Diplomate Reporter (RDR) 25· ·Florida Professional Reporter (FPR) Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 2- 53:5 1 1 1:1 24:16 34:23 54:25 55:4 61:19 79:16,22 88:12 89:8,14 128:9 2-milligram 27:20 2.2 53:24 200 72:4 98:20 ·Index: 1..acute 45:10 71:4,6 95:21 97:6, 8,15,24 99:8,10 105:18 109:23 117:1 135:18 138:9 51 1:1 2013 24:12 1- 27:20 10 64:19 65:2,8 96:10, 6 2014 3:2 215 105:11 6 53:22,25 85:9 97:17 10,000 23:11 22 1:1 60 34:24 99:12 131:7 100 55:5 57:13,18 68:12 25 54:1 16,20,23 107:13 98:20 131:7 108 1:1 10:28 50:21 10:41 50:21 10,11,18 85:13 87:25 88:1 94:21 105:10 127:4 2:05 139:18 7 113 1:1 106:5 131:7 71 83:14 109:13 138:10 73 1:1 12 23:9 106:6 12:14 77:15 3 24:18 30:21,25 53:22, 25 61:19 132:15 3.851 137:8 15 13:7 96:12 106:6 107:13 15,000 105:14,17 106:11,22,24 135:19,22 1500 13:22 accurate 15:16 58:5 87:20 100:10 114:20 122:16,18 123:9 achieved 40:12 71:22 80 84:22 99:14 98:16 99:9 102:16 4,000 45:9 71:8 117:6 82-kilogram 53:23 acknowledged 127:8 acquaint 66:20 40-plus 97:18 9 40-something 83:15 46-page 79:8 19 74:5,6 101:2 136:13 acting 71:13,14 5 5 3:2 64:18 65:2 83:23 84:10,23 89:11 96:10, 16,20,23 107:13 50 43:11,23,24 44:21 45:7 54:1,14 57:11,18 69:17 72:2 99:12 104:15,16,20,21,23 106:22 109:16 117:7 127:8 131:5,7 500 31:9 33:6 40:19 acquainting 66:1 act 28:15 32:1,2 71:18, 90 1:1 9:09 3:2 5-milligram 53:5 83:22,23 89:11 accordance 86:16 achieving 121:18 1:11 112:8 2 23:15 24:17 61:19 45:25 82 53:25 5,000 135:20 2 accomplished 7:16 4 83:22 85:9 97:17 1983s 18:11 1:21 112:8 accident 41:14 achieve 50:3 85:13 A 22 127:9 abuse 109:20 79 1:1 84:19,21 180-pound 72:5 84:17, absurd 124:19 106:23 8 170-pound 84:20 117:6 180 53:12,24 54:17 absorbed 83:24 accused 45:8 3:14 3:13 4 14,000 106:25 63:4 67:19 72:6 85:25 94:11 104:6 115:21 118:5 120:25 78 1:1 12:15 76:24 77:1,10,12 12:30 77:4 absolutely 25:17 57:9 accomplish 4:3 70 98:19 99:14 105:22 70-kilogram 105:13 3 11:19 77:15 38:17 67:11 access 120:17,23 122:4 250 17:15 72:5,8,9 83:4, 110 3:13 absolute 15:17 26:9 action 34:15 49:23 50:4 71:21 96:18 97:19 a.m. 3:2 50:21 77:15 actions 24:10 abate 13:7,11 activates 70:16,18 ability 63:5,15 80:8 active 41:23 81:14 123:11 ablate 60:8 ablated 63:15 activities 92:12 activity 32:4,6 71:22 110:18 ablates 126:24 acts 100:20 absence 123:15 actual 67:11 114:19 absent 137:10 acute 41:25 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 add 7:13 59:10, 87:12, 13 added 112:13 addition 24:4 29:23 118:16 additional 5:13,17,18 15:4 42:18 57:13 59:12 82:24 90:19 91:4 133:14 address 7:1 10:15 15:24 16:7,12 22:23 94:19 121:8 125:22,23 132:16 136:25 137:21 ·Index: add..apple adults 69:18 alternatives 135:16 aesthetics 23:11 amend 132:14 139:5,6, affect 73:15 101:5 130:4 131:12 affected 85:3 affidavit 12:6 16:15 66:3 82:24 104:12 affidavits 129:5 affinity 74:11 8,9 amended 137:11 amendment 10:12 11:11,25 15:1,11 16:19 18:17 19:7,10,11,14 119:9,20,22 120:1,3 121:4 124:8 125:1,3,5,6, 13,20 128:5,20 134:1 136:13 affirmed 18:6 Amendments 12:23 addressed 8:9 afforded 20:7 America 113:15 addressing 130:15 afternoon 78:22 American 26:21 43:17 adequate 14:3 130:25 age 84:11 adequately 46:10 agent 66:25 67:3,13 adjudicate 124:7 adjudicated 124:11 adjunct 29:22 administer 52:2 56:11 65:1 72:4 86:13 87:24 110:7 120:21 administered 14:18 28:24 34:25 44:23,25 46:17 47:23 56:5 83:19 93:15,24 97:25 128:2 administering 23:6 44:12 administration 11:10 35:2 43:13 45:24 47:2 48:20 49:25 68:24 104:8 134:17 136:12 administrations 35:5 administrative 6:4 admit 4:17 134:14 admitted 79:18,21 128:9 admittedly 46:4 adopt 22:11 adopted 133:10 adrenaline 54:5 adult 53:6 68:25 69:5 102:17 113:24 115:3 agents 23:23 24:1 87:7 94:10 95:17 102:13 aggressive 128:12 agitated 55:14,15 agitation 56:16 agony 41:2 agree 26:1 56:19 57:2,5 58:10 59:9 67:24,25 69:12,22 82:9 93:17,22 118:1,20 130:2 agreed 17:8 51:15,19 68:3 81:21 ammonia 33:25 34:3 amnesia 27:24 amnesic 52:12 amnestic 27:12 52:3 amount 31:7, 53:11,15, 16,18,21 57:6 83:4,5,9 84:5 89:7, 103:12 117:2 amounts 84:15 86:13 89:7,16,17,18 90:6 127:4 amplify 20:2 49:21 analgesic 8:19 14:12, 20 28:4,5,6 31:22 86:6,9 94:12 127:10 134:20 99:1 102:17 107:6 111:8 114:13,19 116:17 117:2, 13 131:25 132:3 135:2 anesthesiologist 17:5 52:1 53:11 114:3 126:22 anesthesiologists 60:21 103:20 114:5 anesthetic 8:7,10,12, 15,17,23 9:3,4,8 13:2,13 14:9,11 25:20 27:19 29:8,10,11,25 30:5 32:8, 34:9 45:22,23 57:7 68:5 72:16 85:1,16 86:10,21 87:4 94:5 101:23 115:3 127:24 132:2,4 anesthetics 41:15 135:3 anesthetize 46:10 anesthetized 39:19,23 40:7,17, 41:21 42:9 45:18 85:16 anesthetizing 10:7 animal 38:25 71:7 72:19 117:5 animals 27:1 43:23 45:7 answering 49:3 anxiety 26:13 34:19 35:7,8 44:11 52:19 54:4 anxiolysis 44:10 52:3 agreement 92:5,10 analogy 9:3 14:5 96:21 apnea 66:8 ahead 18:25 analysis 15:23 123:3 apologize 4:25 5:8 air 26:12,13 49:7 65:11, ancestry 118:8 18 and/or 116:2 122:4 Alabama 97:1 anecdotal 96:1,8 99:25 alignment 47:17 anecdotally 100:2 alive 106:10 anesthesia 13:20 14:13 allegations 18:2,9,24 20:5 116:2 138:24 alleged 18:18 allegedly 68:8 allowed 36:23 37:4 75:13 133:8 23:7,9,24 24:1,14,15 25:12,22 26:23,24,25 27:14,15 28:19,23 29:13,14,23 40:9,12 45:24 50:1 58:12,19 59:1,3,5,6 67:14 68:3,6, 14 70:6 72:15 74:18 76:9 86:21,25 87:6,8,20 92:14 93:25 94:8 98:24 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com 58:23 76:24 apologized 4:22 apparent 56:4 apparently 65:15 appeal 132:10 appearance 5:11 appeared 17:12 appearing 3:18 57:1 appendix 22:12 30:21, 25 42:24,25 apple 21:2 124:9 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 apples 8:18 131:14 136:20 applicable 11:5 application 10:2 93:9 109:4 123:23 applied 33:3 121:13 123:2 applies 18:16,19 19:11 123:25 124:12 125:1,2,3 apply 19:9 44:16 45:13 125:6 133:25 applying 11:19 103:12 appointed 5:1,10 appointment 4:12 approach 79:13 approaching 79:15 appropriately 28:24 80:2 approval 43:13 104:9 approve 98:3 approved 29:9 59:2 86:21 87:5, 94:7 97:11 116:16 approximately 23:6 44:21 45:9 54:1 area 22:23 23:19 52:21 54:24 73:23,24,25 81:18 91:14 101:3 107:22 116:25 131:1 areas 27:22 73:10 113:8 Arguably 130:9 argue 7:15 21:12 47:20 48:5 arm 136:3 authoritative 23:25 arrest 13:23 83:7 94:22, authorities 47:16 25 134:10 arrive 20:11 45:4 Arthur 116:10 133:15 137:19,20 article 36:15 articles 23:16 31:10 ascertain 41:18,20 asleep 33:17 awake 25:7,8 32:14 awaken 32:15 16:4 33:2 64:18 67:3,6 84:15 86:23 89:17 97:6, 22 111:3 113:10 122:24 135:12 137:16 138:7 basic 109:4 130:3 basically 21:1 32:22 60:11 79:25 86:22 88:21 91:12 98:23 99:22 103:8 107:24 108:3 110:17,20 basing 68:11 131:22 basis 5:24 6:10 19:23 44:24 99:5 103:16 Baze 47:2,20,23 122:21 127:20,22 128:14 beat 107:12 B beauties 90:4 assess 95:1 100:10 Bachelor 91:6 began 7:10 assessing 103:17 bachelor's 79:2 begged 132:13,14 Assistant 73:11 75:25 back 31:5 34:1,6 42:19 begin 84:2 85:22 86:3 associate 3:19 association 26:22 68:4 71:1 49:3,4 61:12 112:10 119:3 130:15,16 background 79:1,2 91:4 92:13 assume 29:2 32:15 42:12 44:25 61:23 65:1, 3 68:22,24 95:5 117:20 behalf 3:25 22:5 78:18 balance 33:10,15 balanced 127:7 70:5 banned 46:23 assurances 72:12 bar 124:12 attack 35:9 barbiturate 13:12 attempt 109:21 attendant 11:18 73:11 75:25 122:8 attorneys 51:6,14 90:24 129:21 barbiturates 28:21 32:1 35:11,17,19 49:16, 22,25 71:2,17,22 73:13, 15,25 74:6,13,17 101:1, 7 107:23 108:1,2 113:16 129:19 base 96:15 based 5:25 12:2,14 Auburn 81:3 96:22 augment 32:3 author 23:22,25 138:20 authored 37:12 109:1 135:3 bad 134:24 assuming 7:6 53:23 assumption 28:13 42:3 beginning 134:16 begins 107:10 badges 114:8 55:3 88:25 95:14 97:17 99:21 107:6 backtrack 69:16 assumed 7:21 68:9 attorney 3:18,21 4:19 arise 20:4 awaits 124:17 asserts 8:11 12:6 argument 9:25 18:3 28:12 119:19 124:14 125:17, 132:18 137:1 avoid 126:15 aspect 24:21 36:16 attention 72:23 arguments 7:1 10:15 authority 4:23 5:2 aware 5:2 6:8 11:18 36:17 argued 122:20 139:3 19:8 20:21 48:10 112:12,16 115:12 118:8 120:18 124:14,22 130:17 ·Index: apples..big 16:22 37:9,23 38:25 43:7 46:8,19 47:20 66:3 68:8,22 72:14 74:22,23, 25 75:20 76:1,13 88:14, 15 95:22 97:20 103:1 113:11 116:19 117:4 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com 113:4 behaviors 34:21 89:1 behest 108:18 beings 57:22 64:1 believes 128:22 bell 44:1 105:23 106:13 bench 129:13 benefit 10:5 63:7 66:24 82:18 84:4 benzene 108:3 129:22 benzodiazepine 28:19 35:4 54:24 73:22 74:10 98:18 100:19,21 benzodiazepines 24:9 34:14 35:21 42:6,11 73:14,16,24 74:15,18 88:9 107:23 108:3 129:19 big 84:23 96:24 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Billions 100:25 bind 32:3 71:14 73:24 74:1,2,10 binding 31:25 47:21 biologic 44:2 bit 27:8,20,23 65:13 69:16 87:19 98:11 110:14 bite 21:2 124:9 black 110:5 block 29:23 77:5 88:25 110:16,19 blocked 98:16 110:23 blocks 85:25 blurring 16:2 board 60:3 81:18 91:14 board-certified 17:4 60:2 81:19 126:22 Bob 3:25 90:24 bodily 72:10 117:20 125:11 126:2 body 26:19 80:1 85:23 87:18 98:13 99:12 107:7 130:5 131:12 bolster 36:25 bolstering 37:2 bolus 56:13,14 bono 5:1,5 borne 68:17 bottom 76:1,10 99:11 130:14 132:4 Brian 3:6 called 1:1 8:10 15:2 briefing 5:13,17 briefly 6:25 10:14 12:25 17:1 22:24 49:21 108:12 119:17 124:13 125:22 136:25 bring 33:22 34:1 37:22, 23 46:3 118:21,22 119:3 brings 18:8 122:19 broad 34:22 bromide 63:17,22 92:18 102:8,23 103:7 124:23 126:11 127:23 128:3 134:12 brought 43:17 109:12 Browne 1:1 3:11,17 4:16 5:4,21 9:22,23 10:4,14,19 16:4,25 17:1, 20,23 19:20,24 20:11, 12,15,18,20 30:14 35:25 36:24 37:4,8 38:5 41:4 46:24 47:14,15,18 50:8, 14,15,19,24 51:1,2,4 59:8 60:19 72:18 73:1 76:18,20,23 77:5,10,18, 20,22,24 78:15,21 79:13,15,23 80:15 81:22 82:12 90:18,20 108:11, 12,15 111:19 112:4,12 115:5,6,9 123:21, 127:22, 136:25 137:3 139:16 building 130:3 131:11 burden 6:9,11 128:19 box 110:5 burning 26:18 brain 15:13 32:6 33:11 butchered 70:17 C break 50:16 77:4 calculate 53:16,18 breathe 26:12 67:5 calculations 45:4,5 134:13 138:5 breathing 65:10,11 69:1 71:10 95:3 135:10, 13 138:5 22:5 31:8 45:10 59:24 78:18 83:11 85:24 93:12 100:21 137:10 calls 65:2 calm 27:21 Campbell 120:14 candidly 4:17 bringing 37:12 38:9,19 34:7,8 40:5 71:22 85:19, 24 86:4 110:11,15 138:4,5 ·Index: Billions..character 85:8 call 21:5 77:2 98:9 112:20 133:8,18 139:2 capital 69:7 124:16 capsule 33:25 cardiac 13:23 83:7 cardiothoracic 102:6 care 54:10 80:22 career 80:17,21 81:2 93:12 careful 110:7 Carlos 3:14 4:1 90:25 carried 19:15,19 cascade 107:9 case 3:13 5:14 6:1,7,14 7:19 8:1,13,15 9:19 15:2,3,23 16:1,14 17:11 18:4,7 19:2,12,13,14 21:1 22:12 24:2 27:4,7 32:9 37:19,20 44:10 45:8 47:17 48:3 59:25 64:7,9,12,21 65:4,7 66:2,6,10 69:3,13 70:6 82:14,19,21 86:19 88:20 89:3 109:12,19,20 112:17 115:24 116:6,8, 10,16 117:10 118:13 119:8,12, 120:15,17,19, 24 121:6,7,9 122:5,8,17 124:2,21 125:4,8 126:15 128:7,23 129:7 132:11 133:9 137:19,21 138:18 139:8 cases 11:1 12:5 14:6 17:13 25:18 68:13 81:11 83:13 89:8 96:1,9 120:8, 11 121:5,14 122:2 124:20,25 138:11 casual 63:16 caught 20:20 caused 118:4 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com causing 75:13,25 83:14 107:8 120:10 caustic 45:25 102:15 135:11 caution 110:6 cautionary 110:3 ceased 138:6 ceiling 28:16 31:24 42:5,8,11 49:8 70:23 71:12 98:9,11 117:4 131:6 center 120:6 centers 113:15 central 71:16 83:25 95:15 century 23:7 certainty 17:16 33:1 35:21 45:17 46:8, 76:13 88:5 certified 60:3 81:18 91:14 certifying 7:19 certiorari 18:6 cetera 22:16 24:11 35:16 63:11 chair 23:8 96:23 119:4 challenge 10:11 19:18 124:7 challenged 18:8 challenges 47:19 126:11 chamber 54:6 chance 55:5 82:20,23 83:2 138:9 change 7:7 8:13 9:18, 20,25 10:3 11:15,16,17, 22 41:21 77:1 129:21 131:16 changed 12:11 64:16 changing 74:13 chapter 24:1 character 74:12 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 characteristics 24:16 35:1 46:2 Chavez 3:14 4:1,20 6:17 7:10 9:12 11:16,25 12:4,10,20,24 14:5 15:1, 14 18:7,12, 20:21 21:1 90:25 116:9 124:3,14,18 126:1 128:19 132:13 133:1,3 138:16 Chavez's 15:3 19:15 20:5 116:8 119:6 124:22 126:15 127:17 check 47:21 67:6 68:23 69:1 105:7 127:21 128:13,16 136:1,2 chemical 26:18 108:6 130:4 chemically 131:11 chemicals 45:25 children 110:4 chloride 26:17 34:4,5 48:18 92:20 102:9,15,23 103:4,7 126:12 127:23 choices 30:3 claims 6:14 9:12,14,15 11:6,7 18:13,16,20,22, 24 19:9 116:5 119:15, 16,17 123:25 124:6,11 127:10 137:5,6 139:1 ·Index: characteristics..constitution combativeness 55:23 concise 129:6 combination 27:23 concluded 139:18 30:6 84:12 94:10 combine 135:3 combined 87:7 118:21 clarify 20:20 114:17 comeback 97:1 class 34:14 comfort 123:6,14 classic 135:4 comfortable 126:8 clause 120:1 Comity 19:1 clear 4:18 37:13 56:9 commend 133:15 condemned 54:5 commended 128:15 condition 118:19 comment 32:24 60:11 conducted 30:17 57:21 58:15 63:4 123:24 125:4,8,24 126:5 137:15,17 clerk 21:7,14,15,22,24 78:2,4,5,6,10,14 79:16 80:10,12 93:2 clinical 23:3,10 27:7,9 36:8 80:1 81:20 91:11, 24 93:23 95:20,22 109:4 110:23 close 6:11 17:3 103:14 closed 62:2,4 75:5,14 64:22 65:20 66:11 73:12 confirmation 74:14 committed 19:17 confirmed 74:25 128:2 common 15:13 56:23 conflicting 67:9 communities 36:19 confused 4:23 community-based confusion 4:14,21 5:9 81:15 chose 18:14 124:6,7,10 cocktail 63:17 126:13 comparison 54:8 chronic 35:6 cocounsel 4:2 compelling 6:14 48:2 Circuit 5:15 6:1 10:5 coexisting 53:9 circumstance 63:1 100:10 circumstances 7:17 54:12 cite 37:1 cited 18:10,22 47:16 121:7 claim 6:5 8:3 11:21,23 12:1,3,12,13,14,18 13:1 14:10,25 15:1 19:7 119:10,13,20 120:6 123:18 124:10 125:20 133:12 134:1 137:14 138:16 College 81:20 colonoscopy 84:3,9 Columbia 17:5 coma 17:25 28:18 49:25 70:1,25 71:4 74:18 101:16,21 113:24 128:8 competency 121:8 122:6,7 competent 121:9,12,15 124:11 complaint 7:4 8:9 9:10 11:9 119:16 134:11 completely 13:7 17:10 60:8 67:20,21,23 114:17 coma-inducing 113:18 comports 119:9 comas 101:11 113:9,16 concentrations 42:1 130:7,10 comatose 13:24 87:1 102:2,25 111:7 130:11 138:6,10 combative 34:20 54:18 conducting 87:10 confined 124:16 compared 27:16,18 collaborative 92:5,10 17:14 30:12 38:14,21 61:1,2 63:18 67:16 68:11 86:19 131:3 132:21 comments 23:12 39:1 CNS 98:23 110:13,15 18:23 121:7,9 122:24 123:1,24 125:16 132:11 133:15 conclusions 14:21 commentary 47:14 company 97:7,23 124:23 64:1 67:11,18 68:8 72:14 75:9,16,18 76:12 83:9 118:16 clarification 5:4 closes 111:6 choose 112:14,19 conclusion 37:10 63:9 concept 88:9 concern 16:3 concerned 110:10 concerns 48:8 88:22 89:5 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com connected 11:15 connection 3:13 connote 118:9 conscious 41:1 65:9 95:3 consciousness 13:7, 8,11,15,25 14:4 15:22 31:17 32:19 35:20 39:9 47:21 60:8 67:6,18 68:23 69:1,9 74:13 90:7, 16 93:13 126:24 127:1, 20 128:13,16 136:1,2 considerable 119:4 consideration 59:14 considered 38:13 72:16,17 120:11 121:3 consist 81:9 consistent 68:18 138:21,25 constitution 11:12 125:5 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 constitutional 124:10 125:15 constitutionally 128:15 consult 51:15,19 77:6 80:18 consulted 51:5,14,20 consulting 81:6,10 consumed 81:1 contacted 51:14,16 contend 7:8 contended 14:6 contentions 10:22 context 12:17 25:23 27:8,10 30:8,10 33:19 36:20 37:17 38:2 42:20 43:5 46:18 47:8,10 48:22,24 49:10,14 72:11 91:22 99:17 119:21 120:2,15,19,20 121:1,2, 10,13,15 131:10 132:12 133:16 contexts 7:15 121:24 134:2 continue 4:14 10:17 40:11 56:10 61:15 66:12 82:6 99:2 continued 49:24 core 117:11,24 120:6 cornea 114:7,10 correct 22:13,14 27:4,5 28:7 30:4 33:23 36:6,7, 9,10 39:13,14 45:12 46:6 48:15 51:7,11,12, 24,25 52:14 53:1,2,14 54:18 55:25 56:3 57:15 58:13,17 59:10,17,18,25 60:4,5,25 61:2 64:5,8, 10,15 65:10 66:5,18 67:23 68:7,10,25 69:3, 17 70:2,3,11,15 76:14 77:20 78:24 81:6 84:9 89:14 91:7,9,15,16 94:12,15,19,20,23 95:12 99:18 100:21,24 101:3 104:1,16 109:2,9 110:8, 11 111:17 113:14 115:1 120:13,14 128:3 corrected 132:21 Corrections 10:22 16:16 122:19 123:5 correctly 118:9 correlates 103:24 controls 18:23 21:3 convened 3:13 convert 105:12 convey 123:11 convictions 19:18 convulsive 48:17 copy 22:19 79:10 courtroom 24:19 37:10 134:6 courts 15:10 47:19 133:6,16 create 8:23 69:6,9 84:2 20:13 79:17 119:18 137:1 counsel's 47:14 couple 4:6 10:15 control 63:24 91:23 72:22 76:20 133:1 counsel 3:12,22 7:10 continuum 34:10 85:21 contrast 14:19 Court's 5:12 6:19 19:23 cover 102:12 country 11:14 126:8 contradiction 65:6 60:13,16 66:4 71:3 72:21,25 73:6 76:17,19 77:3,7,12,14,16,17,18, 21,23,25 78:2,5,7,16,25 79:14,19,21 80:8,14 81:24 82:1,2,7,10 88:18 90:20 92:25 107:20 108:10,13 111:21,24 112:2,5,7,9,10,11,19,23, 25 115:5,7,11,15,19 116:15 118:7 119:24 120:2,4,8,10,12,15,24 121:17 122:13,21,24 123:1,2,20 124:1,3,5,8, 10,11 125:4 126:20,25 127:20,22 129:1,4,23 130:9,17 132:8,10,13, 14,19,24 133:6,10 136:7,16,23,24 137:2,7, 17,22 138:8,17,19,20 139:3,11,13,17 Corrigan 131:22 continuous 101:18 contradicted 66:9 ·Index: constitutional..decision 113:25 137:1 court 3:4,5,7,8,10,12,23 4:5,21,24 5:1,6,10,15, 16,18 6:13,17,20 7:7,14, 18 9:12,14,15,21 10:4, 13,16,20 11:13,14,25 12:19 13:17 14:7,10,16, 24 15:5,15,20 16:3,24 17:19 18:4,5,6,8,14,21 19:1,3,4,6,10,20 20:2,7, 13,16,25 21:6,13,19 22:3,20, 24:25 27:4 30:16,19,25 36:2 37:4, 15,18 38:1,4 41:9 42:23 43:4 46:25 47:1,3,5,15, 22 48:4, 50:9,13,16,17, 20,22,24 51:13 52:1 53:3,16 58:18 59:21 85:7,15 86:13 116:3 creates 45:17 116:12 credibility 60:11 130:20,22 131:9 134:4 credible 130:24 132:1 133:23 Crews 5:14 crimes 19:17 critical 129:24 cross 115:5 130:24 132:20 cross-examination 1:1 30:18 51:3 54:21 90:22 125:25 133:21 curriculum 22:11,13 79:6 curve 44:1 105:23 curves 106:13 customarily 37:6 cut 103:22 cut-down 120:16,21,25 121:1 122:3 CV 3:13 D dangerous 101:7 darn 41:20 data 23:21 31:19 38:22 44:7 45:13,14,15 71:7 72:13 99:24 107:3 date 7:6 David 22:1,4 113:3 Davis 3:6 day 17:6 51:23 77:1 126:23 days 132:15 139:5 dead 62:1,3 107:12 117:9 deal 55:8 64:14 85:5 dealing 25:23,24 37:21 95:10 110:3 131:2 dean 81:3 death 14:18 17:11 19:16 30:9 38:16 44:11 45:2 61:24 70:25 83:7,14 95:11 96:17 109:12,24 117:7 118:6 119:21 120:10 121:22 124:16, 24 127:17 131:5 decency 12:1,2 decide 10:23 82:1 106:17 cross-examine 30:16 decided 5:14 122:21 cruel 127:24 deciding 139:14 curious 82:2 decision 18:5 38:2 current 22:13 79:10 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com 131:22 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 declaration 24:3,5 30:7 31:4 39:17 45:3 65:23 104:12 105:3 138:20 declared 69:7 denial 137:17 denied 18:6 20:21 116:11 132:16 133:3 139:6,7 declaring 8:1 dental 89:4 deep 13:8 69:19,20,25 dentist's 96:23 70:7 102:11 111:7,13 138:6 deeply 17:24 86:10 default 23:20 defendant 6:9 7:3,22, 25 121:24 123:7 124:1 125:9 defendant's 123:9 defendants 1:1 4:8 12:7 21:2 78:18 126:13 defendants' 1:1 79:16, 22 defending 51:21 defense 6:3 10:9 17:4, 11 51:5,14 59:25 79:17 118:12 defenses 6:5,23 deficiencies 132:19, 20,21 133:24 deficient 47:11 defined 24:15 25:12 29:15 50:1 definitive 23:23 degree 8:8 17:16 27:25 45:2,16 46:8,13 52:3 71:24 76:13 88:4 91:6, 10,11 93:18 deny 19:22 138:17 department 10:22 16:16 23:5 122:19 123:5 dependent 19:25 depending 53:8 78:22 84:10,25 119:12 depends 32:16 34:24 deposed 64:10,11 depressed 14:2 depression 71:21 74:12 75:13 deprivation 83:7 94:22 134:15 137:25 71:21 disorder 35:9 disorders 34:19,20 92:23 disputes 17:13 developed 116:4 disputing 37:9 Deyoung 10:6 distinct 120:18 133:20 diaphragm 134:12 distinction 115:23 135:10 diazepine 108:4 129:22 die 43:12 61:24 62:2,5 95:24 107:8 died 104:16,24 105:22 difference 11:2 24:22 25:12 44:9 74:16 96:24 120:25 129:15 differences 15:25 20:6 73:13 129:18 131:17,24 differentiate 24:21 distinctions 13:1 distinctly 49:23 distinguish 13:11 137:23 distinguishability 5:13 distinguished 19:12 distinguishing 112:17 129:7 136:19 distributed 87:17 distribution 44:3,8 District 3:5,7 disturbance 54:20 derivatives 129:21 difficulty 55:8 disturbances 34:19 derived 108:1 dignity 123:7 DOC 11:19 123:4 describe 53:3 direct 1:1 22:7 30:18 DOC'S 122:24 description 44:6 55:13 64:20 65:12,16,18 108:17 descriptions 46:4 designed 58:8 desired 68:13 determination 9:23,24 116:1 diseases 53:9 develop 43:25 97:10 deliver 72:15 demonstrate 31:16 devastating 83:17 difficult 62:8 65:22 detail 27:9 demands 26:22 determining 68:5 depth 14:4 57:7 68:5 delay 126:16 48:17 109:11 differently 74:3,4 destroys 126:25 delivery 40:17 46:22 determined 7:13 43:16 depriving 122:1 degrees 55:2 delivered 13:12 23:11 ·Index: declaration..doctors 92:8 93:17 determinations 134:3, 4 determine 6:21 37:19 43:14 67:25 68:2 93:14 97:24 103:19 108:18 130:20 71:13,14 78:20 98:5 113:6 130:23 131:8 directly 6:2,14 115:18, 22 125:3 137:23 disagree 116:24 117:3, 25 disagreed 116:18 disagreement 118:14, 15 disagrees 118:16 discern 86:11,23 discipline 91:18 discoordinated 55:17 56:22 doctor 17:17 30:22 36:4,25 41:11 43:7,10 47:24 51:5,23 52:25 53:21 54:13,21,22 55:6, 21 56:15 57:5,16,24 58:10 59:9,19 61:3,15, 18 64:3 66:5,16 67:18 69:22 70:17 71:24 72:7, 21 73:3 78:22,25 79:3,5, 8,24 80:5,16 81:9,18 82:13,14,18,23 83:3 84:25 85:10 87:3,9 88:7 89:6,12,16 90:12 91:10 92:1,2,6,7 101:15 103:22 108:16 109:2,9, 11,24 110:13,24 111:3, 10,16 112:4 116:7 135:17,23 discovered 116:4 doctor's 41:7 115:10 discovery 109:4 doctors 16:21 21:11 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 37:12 130:23 document 79:5,8 documented 26:24 dosage 17:9 84:25 dosages 89:7 92:3 95:10 99:16 134:9 dose 13:13,21 14:16 29:2,21 31:14,16 38:11, 12 42:4,13 43:11,12,22, 23 44:10,11,23,25 45:4, 7 52:25 53:4 54:11 57:6 65:25 72:4 83:15,16,18, 20 84:11,23,24 85:3,5,7, 12,15,22 86:2,25 87:15 89:24 90:12 97:14 99:1, 2 103:7 104:15,21,23 105:12 106:6,8 109:16 116:25 138:12 dose-related 86:24 88:13 90:11 dose/response 107:4 doses 12:17 13:7 14:21 27:13 32:2 34:21 38:22 39:3 41:23 44:5,17 52:23 54:7 55:2 57:22 60:8 63:3,9 68:16 70:20, 22 71:2,18 74:15,17 84:6,8 85:22 87:12,19, 20,21 88:11 90:6,13 94:16 95:14 97:16 98:22 99:20,21 102:16 106:11 107:6 117:5,10 135:11 138:2 23 84:2 85:25 86:20 87:16 90:3,4 91:24 93:6 95:16 96:18 97:7,19,21, 23 98:7,15 99:2,3,6,25 101:19 102:3,6 103:3 104:8 106:22 107:4,11 108:4,6 110:21 114:18 117:22 118:24 122:15 134:7, 135:25 136:12 drugging 121:8 drugs 23:13 26:5,8 27:13,16 28:14,25 29:6 32:7 33:16 35:14,17 36:13,18 40:24 41:2,23, 25 43:16 46:12,17 47:9, 22 49:15 57:20,22 59:12,13 63:8,12 65:2 68:12,24 76:11 80:4,16, 18 86:13 88:24 90:9 92:4 94:18 106:17 107:24 108:17,19,24 109:7 114:19 116:22 131:18 135:9 dry 111:15 Duke 23:5 dunked 26:11 dunking 49:6 duration 85:2,4,7 97:19 duties 108:16 dying 62:6 106:8 dystonic 55:16 dosing 106:5 E education 79:4 Emanating 119:24 educational 79:1,2 emergency 19:21 EEG 31:21 49:11,25 encompassing 24:15 68:15 70:7,24 74:18 113:19 effect 15:7 18:13 28:16 31:24 42:4,5,8,11 49:8, 13,24 56:15,17 57:14 58:7 60:20 68:13 70:23 71:12 80:18 85:1 90:7, 15 98:6,9,11,25 99:3 105:20 108:19 encountered 85:18 end 10:25 32:8,9,23 57:12 65:19 71:11 105:23,25 106:4,7,10 107:8 133:19 endoscopy 27:22 endotracheal 114:9 effected 124:24 ends 29:2 effecting 127:16 enhance 36:12 effective 17:21 44:10 enhances 71:14,15 138:13 effectively 60:7 126:24 132:22 effectiveness 56:7 32:16 36:18 83:17 97:8 106:20 107:3,4 131:13 138:2,8 74:12 enlighten 7:14 enliven 32:20 entire 7:20 26:19 29:4 34:14 63:13 81:2 98:13 entitled 4:19 128:22 enunciated 122:19 efficacious 23:14 environment 75:15 efficacy 13:13 17:2 environments 91:24 82:15 97:23 126:19 equal 13:25 28:14,15 Eighth 10:12 11:25 15:1,11 16:19 18:17 19:10,14 119:9 120:3 121:7,9 124:8 125:2,6, 13,20 128:4,20 134:1 114:22 equals 118:20 equate 13:15 103:16 equates 13:15 equivalent 29:3,6 electric 119:3 escalate 85:22 electrical 32:6 escalating 43:23 electrically 70:7 escaping 121:6 electroencephalograp hic 28:17 essentially 6:20 8:11 77:3,8 129:3 earned 19:16 eleventh 5:15 6:1 7:4,9 draw 64:1 E-v-a-n-s 78:13 drawn 38:21 122:22 earlier 37:23 118:24 11:19,24 13:4 14:8,19 16:10,18 17:22 26:21 27:3,15,17,18 28:9,11 29:13,14 30:23 32:16 34:25 35:2 42:15 43:12, 13 44:9,12 46:19 47:8,9, 20 48:23,25 49:7,13,18 52:2 57:6 59:4 63:16 68:15 69:14 71:19,20 76:3,9 81:16,17 83:14, eliminates 69:21 elderly 110:4 87:23 127:3,5 drug 9:2 10:7,23,25 educated 107:17 effects 29:1 31:11,14 due 19:7 120:1 125:6 doubt 47:24 49:9 85:17 ·Index: document..euthanasia 119:10 early 6:23 39:15 54:21 ease 52:19 10:5 18:23 123:24 125:16 132:11 133:15 easily 19:12 elicit 103:13 easy 23:12 33:17 59:15 elicited 61:11 edges 17:14 eliciting 37:25 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com 11:19 13:9 14:7 74:5 80:22 93:25 103:17 107:7 109:20 137:6 established 10:11 17:3 126:20 128:6 euthanasia 27:1 28:22 35:24 36:16 38:14 39:1 68:6 72:17,19 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 evaluate 33:15 evaluated 31:13 evaluation 32:24 73:13 80:24 81:12,16 92:8 93:13 evaluations 92:3 Evans 1:1 13:9,18,24 14:23 16:21 77:24,25 78:12,17 111:24 114:1 115:8 116:17 117:8 118:12 127:2 130:9 131:17 132:9 133:21 134:9,17,20 135:7,12,18 136:1 138:7 Evans' 132:20 event 52:10,20 events 52:4,6 63:7 67:11 eventual 107:9 eventually 35:19 83:6 95:11 107:8 evidence 5:18 9:15 11:6,7 12:2,9, 14:11,19 15:2,4,18 16:13,22 17:1 18:7 20:23 31:20 43:6 63:2 66:6 68:17 79:22 95:25 96:6 100:4 116:3 117:17 118:20,22,23 119:13 122:17 123:3,16 131:4 132:1 133:5,14,21 137:16 evidentiary 6:21 18:5 20:22,23 37:21 38:3 42:21 59:20 132:13,17, 22,23 133:4 136:16 evolving 12:1 exact 61:21 67:13 examination 1:1 16:4 22:7 30:18 73:8 75:24 78:20 98:5 108:14 113:6 130:13 examine 9:7 examining 120:15 excitability 56:21 exclusively 27:12 Excuse 72:21 excused 112:2 execute 125:10 executed 48:21 74:20 100:7 116:22 121:12 executing 121:19 execution 6:7,8 7:22 13:15 14:1 15:8,19 26:20 30:10 45:1 54:6 61:4,9,12,19 62:12,15, 19,21 64:4,14 65:21 66:3,16,18,21,23 67:1 68:10 117:18 118:2 120:15,19 121:1,10 123:9,13 126:1,7 138:18 executions 9:1 12:3,16 16:15,22 18:19 39:16 46:4 62:17 68:18 100:3 116:21 118:18 120:2 exercise 76:22 exhaust 6:4 Exhibit 1:1 30:21 79:16, EXHIBITS 1:1 exist 15:24 expect 33:1 38:11 52:22 57:12 83:4,20 114:11 expected 55:24 56:2 expecting 104:17 expedite 4:9 expeditiously 20:3 139:15 experience 22:16,24 23:4,9 36:6,9 39:11 40:7 67:15 76:3 79:11 85:6 88:16 92:14 96:9 103:7 111:16 113:11 experienced 89:20 118:3 134:15 exceed 85:9 experiencing 41:1 exceeding 138:12 experiment 106:16 exception 9:6 experimentation 12:14 42:16 experimented 63:25 experimenting 32:23 expert 13:18 15:2,3 16:21 17:4 18:9,12 60:11 65:21,23 76:21 81:23 82:9,24 116:7,12 118:13 126:3,21 132:8 133:18 137:13 139:7 experts 17:24 27:6 37:4,7 116:1,2,23 117:3, 25 130:19 136:10 explain 24:25 30:10 extremes 44:1 54:2 eye 40:25 41:6,12 61:3, 6,7,18,22 62:3,10,15,17 63:10 64:2 103:13 111:14 eye-open 113:25 eyeball 103:21 135:8 136:3 eyelid 14:3 33:7,20 103:10,12 114:7 eyes 40:21,25 41:13 61:25 62:1,2,3,4 75:5,7, 10,14 111:4,6,8,10,12 114:1,2,4,5,10,12,15 31:23 44:14 45:5 62:8 75:3 F explains 4:13 explanation 39:21 74:8 face 25:6,8,9 56:13 explicitly 117:13 facilitates 31:25 exploring 7:10 30:8 facility 122:10 exposures 35:16 facing 7:22 106:1 expound 66:13 fact 6:22 9:23 15:3,18 extension 97:19 extensive 113:11 22 107:2 ·Index: evaluate..false extent 29:7,12 35:6 39:24 47:18 97:14 110:19 119:6 129:4 18:16 19:25 20:1 35:22 42:7 49:11 51:10 62:25 68:15 70:1 72:14 92:1 95:19 97:4 99:25 102:21 108:24 110:1 111:14 116:3,13 120:11 122:6 134:3,9 137:13 external 25:2 factors 116:19 130:22 extra 18:9 facts 13:10 66:2,20 extractions 89:5 extraordinarily 72:3 extraordinary 6:8 extrapolate 71:7 97:17 106:19 extrapolating 109:15 117:5 extrapolation 54:6 extreme 33:2,12 35:7 44:4 105:23,25 106:7,10 118:3 extremely 29:2 63:3 71:24 72:1 76:11 111:1 135:11 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com 116:14 124:17 129:10, 13 130:5 137:9,10 factual 7:13 15:21 46:3 47:17 116:2 120:11 123:1,2 125:22 failed 18:23 138:3 failure 6:4 12:21 fair 18:5 89:23 90:5 103:12 108:22 fairly 5:22 29:21 95:13 fairness 115:8 faith 54:9 false 54:7 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 familiar 31:11 59:19 60:9,13,18 62:5 64:20 66:17 88:9 104:7,11 139:2 familiarity 59:22 113:12 familiarize 36:17 familiarized 27:3 family 30:2 129:17 fast-acting 90:4 FDA 29:9 44:22 59:2 87:5 97:7,22 106:17 110:2 116:16 117:15 133:17 136:11,14 FDA-APPROVED 13:19 14:8, 69:11 137:11 filed 5:10 18:11 22:12 119:6 138:24 finally 14:2 119:15 find 17:12 62:8 75:20 82:10 finding 13:17 118:19 123:1,2 findings 14:4 15:25 48:9 118:8 134:3 26:13 33:2 69:22 100:7 110:24 127:14 131:18 135:23 feeling 17:25 49:8 88:2 97:25 127:6 138:4,9 128:5 Florida 3:6 9:1,14 11:13 12:7,16,19 13:17 14:7, 16 20:25 21:1 23:2 65:5 66:4,16 124:24 125:10, 25 126:17 127:15 128:12,16,22 133:10 137:18 138:14 139:8 Florida's 17:9 83:12 89:19 flows 74:7 fly-by-night 126:21 focused 80:4 81:11 feet 67:4,19 Focusing 24:12 97:4 Fellow 81:20 follow 124:22 137:7 felt 49:4 85:17 117:21 Food 43:13 104:8 field 37:7 57:23 58:11, 24 108:17 113:13 116:4, 19 file 7:4 18:25 132:15 found 8:13 15:11 70:13 12:23 19:6,11 119:19 120:1 121:3 125:1 fourth 11:8 12:14 118:2 frankly 29:4 55:20 89:3 98:15 102:10 107:5 124:15 freedom 121:11,20 frequency 74:5 frequently 58:3 60:6 100:21 front 27:13 64:23 79:5 104:25 107:3 119:2 front-end 37:19 feels 49:4 Fentanyl 94:18 77:9 123:15 Fourteenth 11:10 112:5 focus 55:19 80:3 129:6 Feltgen's 68:25 forward 20:8,17 21:7,13 five-minute 50:16 feelings 40:14 Feltgen 67:3 forms 12:3 Fourteen 119:22 floor 125:13,15 127:19 feel 15:9 22:25 23:9 forming 37:5,7 fit 66:2 fear 54:4 71:25 88:23 138:17 formal 68:5 79:4 four-year 7:6 flawlessly 42:12 federal 18:25 19:3,6 form 38:24 59:4 finite 98:25 100:23,24 FDLE 66:25 February 3:2 forecloses 19:5 116:10 foundation 41:5 flap-open 74:5 features 112:17 foreclosed 9:19 119:14 finds 7:7 18:9 FDAA 136:12 feature 35:13 ·Index: familiar..granting 136:12 football 96:21 force 11:10 35:24 forced 121:2,8,11,20 122:5 forces 39:1 44:20 forcing 122:10 full 13:13 18:4 21:24 38:17 85:25 113:24 129:11 135:22 full-blown 37:21 38:3 42:21 136:16 fully 22:15 35:14 39:23 40:20 41:21 45:18 46:10 56:3 66:1 function 138:6 86:2 88:25 98:12,16,18 100:22 101:2,4 110:15 GABA-A 73:20 gain 109:21 120:16,22 122:4 gaining 98:24 game 96:21,22 gasping 63:11 64:3 65:11,18 gateway 74:6 gather 6:20 gave 54:14 57:11 71:3 87:15 general 13:20 34:9,13 54:23,25 55:10 57:5,7 73:11,12 75:25 80:20 122:8 128:10 General's 3:18 genetics 35:16 gentlemen 139:13 Ginsburg 128:15 give 8:1 16:5 21:18 35:19,20 41:23 43:22 53:15,24 57:13,20 64:22 69:4 72:1 78:7 92:6 102:16 112:13 135:18 giving 54:13 102:14 116:25 117:2 131:3 glabellar 103:8 gnaws 17:13 goal 85:11 121:18,22 122:16,18 God 3:7 21:20 78:8 good 3:10,11,23 21:6 66:15 73:3 74:8 78:2,22 112:5 115:11 135:18 fundamentally 74:24 gosh 134:14 fuse 84:4 government 4:8,12,14 5:19 G GABA 28:16 32:1,4 70:10,15,18 71:15,16,19 73:22 74:10,15 85:24,25 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com gracious 76:25 granted 3:23 granting 6:6 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 ·Index: grateful..imperative grateful 131:20 he'll 21:10 highlight 12:25 116:14 great 34:2 55:8 78:10 head 26:11 34:6 49:5 highly 101:8 132:4 85:5 97:1 109:3 greater 57:6,7 74:11 62:17,19 63:10 64:21 104:18 114:6 129:8 Health 81:21 99:22 grounds 5:25 49:2 grown 53:12 guarantee 63:13 guess 16:11 62:2 86:12 98:22 107:16,17 guessing 109:23 guesstimate 85:8 guilty 121:23 guy 55:4 H half 71:10 hand 21:17 28:21 101:1 handy 27:15 Happ 13:25 14:1 15:18 65:14 66:18 67:1,4,20 68:10 75:21 116:20 Happ's 13:14 15:15 happen 32:12 55:10 56:13 68:19 70:21 80:1 90:2 happened 68:10 75:6 97:3 hear 5:20 19:25 48:10 77:25 91:1 128:8 129:10 133:13 136:16 heard 130:18 131:23 135:25 138:1 hearing 4:2 5:23 6:12, 21 18:5 20:22,23 21:11 24:6 30:11 37:17,21 38:3 42:22 59:20 112:16 116:9,11 119:12 128:21 129:11 132:7,14,17,22, 23 133:4 136:9,16 137:6 139:3,8 hearings 12:5,10 hearsay 30:14 36:1,25 37:3,5,14 heart 25:16 heat 20:21 Heath 14:23 17:4,8 59:24 118:12 126:21 132:9 Heath's 132:19 heavily 65:10,11 67:5 heavy 68:25 held 26:12 49:5 59:20 119:12 hinges 12:1 human 12:14 31:12 44:13,16 57:22 63:25 69:6 97:9 105:10,13 108:19,25 109:8,17,18 history 79:11 133:10 humane 48:19 hit 104:4 humans 44:18 45:13 hold 36:12 holding 17:20 52:21 holdings 48:9 honest 64:21 honestly 61:12 Honor 3:17,20 4:16,25 5:4,9,21 6:6,7,18 10:4, 14,19,21 16:6 17:1,23 18:21 19:1,16 20:12,15, 18,19 22:18 30:14,20 35:25 36:24 37:8,16 41:4 42:17 46:24 47:6, 18 50:8,11,12,15,19 51:2 60:10 72:18 73:1,4 76:15,18,23 77:20,22 78:15 79:13 81:22 82:13 90:18 107:19 108:12 111:19,23 113:2 115:4, 6,9,13,14,16 118:11 120:5,13 123:19,22 124:15 125:2,13,22 127:12,21 128:1,4,24,25 129:10 136:25 137:4,14, 20 138:1,10 139:16 Honorable 3:6,8 77:16 112:9 hope 3:19 111:25 83:14 106:20,23 hunger 26:13 hurt 102:15 hydrochloride 49:19 83:3,19 90:13 91:19,21 94:11 95:22 97:8 100:20 104:9 107:24 129:16 132:2 134:7 hydromorphone 94:18 hypothesis 98:21 hypothetical 72:5 hypothetically 98:13 I idea 71:5 95:23 98:21 124:18 identical 9:14 14:6 identify 3:15 ill 122:9 imagine 26:9,14 69:10 96:25 immediately 7:11 55:14 56:9 61:23 95:12 happening 26:20 helper 71:20 horrendous 19:17 immobile 29:16 happy 64:24 66:13 helpful 20:8 112:1 horse 107:12 immobility 24:17 46:2 helps 74:10 horse's 136:17 impact 79:25 80:18 hereout 21:3 horses' 131:23 hide 48:17 Hospira 37:24 136:15 high 13:6 14:21 39:2 Hospital 17:5 126:14 hard 23:12 32:24 42:9, 10 55:9 67:8 95:1 103:16 harm 7:24 40:14 46:15, 17 48:21 52:23 72:10 122:5,14 harming 72:1 Harper 120:9 121:5 122:7 hazards 114:9 49:23 55:2 63:3 71:2,18 74:17 109:18 116:25 134:9 higher 13:21 34:17,21 44:22 45:10 57:6 60:8 70:22 74:15 85:19 87:20 106:11 109:17 138:2 hospitals 111:16 83:3,5,6,25 84:2 85:4, 19,22 86:2,3 96:19 98:14 99:10,20,21 100:11 105:20 108:19, 25 109:8,21 116:22 129:25 hour 7:4,9 impacted 52:18 hours 13:14 85:9 97:17 impaired 135:13 Huff 139:2,3 impeach 16:21 huge 83:25 imperative 20:8 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 impervious 69:10 75:14 implementation 80:25 import 112:12 important 28:12,14 35:22 66:10 74:9 93:20 123:10 imposed 7:18 126:16 impression 99:22 improper 37:2 68:10 impulsive 34:21 54:19 inability 68:13 inaccurate 54:7 inadequacy 69:15 inadequate 68:17 inadequately 40:17 inadvertently 114:7 inappropriate 29:9 incapable 70:2 85:11 88:2 127:6 incidence 34:22 88:12 90:11 include 36:8 41:25 87:9 included 66:7 individuals 61:24 111:4 117:7 induce 14:13 25:21 28:18 31:21 49:11 54:9 58:11,19 69:17 84:13 87:4,5,7 101:11,16 113:9,15 116:17 130:7, 10 132:3 135:2 induced 15:10 57:24 70:7 92:14 101:21 induces 69:24 inducing 25:21 59:6 85:1 induction 13:19 23:23 24:1 27:15 58:24 86:21 93:24 94:7 114:18 indulge 50:15 infinite 100:23 infinitesimally 128:18 infirmities 15:13 30:20 33:4 36:12 37:18 38:1 43:3,8 44:24 61:8 126:4 136:11,14 inconclusive 118:3 inhibit 70:10 110:18 incorrect 68:9 inhibitory 70:16 74:12 135:14 incredibly 26:21 34:3 123:13 indicating 40:15 individual 35:1 53:17 55:23 69:21 70:2 72:3 83:20 88:1,21 90:7,15 99:5 110:22 117:9 127:5 89:1 110:18 inhibits 69:20 70:15 interventions 81:17 intravenous 104:15,23 120:16 intravenously 83:19 introduce 103:3 inmates 15:13 26:19 intrudes 39:9 44:23 118:2 120:7 121:3 122:9 invasive 102:5 input 32:17 34:7 invoke 9:8 inquire 51:1 78:15 82:3 involuntary 19:13 insensate 14:17 15:22 17:10,22 24:17,23 25:3, 9,14,16,19,24,25 29:15, 16,20,24 31:18,20 39:12,18 40:21 45:19 46:2,11 49:12 50:2 58:20 76:6,10 88:2 93:14,19 102:22,24,25 103:6,17 114:14,21,25 127:6 134:8 105:10 information 6:20 7:13 interrupt 9:21 92:25 inmate's 121:20 instance 30:23 87:9,13 41:17 inhaled 34:3 incredible 134:22 17:22 31:20 33:1 40:17 41:1 45:6,18 47:19 49:4 54:5 64:4 119:21 121:11,23 122:1,5,14 insist 40:11 incomplete 68:8 increased 35:9 inmate 13:20 14:17 inform 24:11 38:20 including 5:25 86:2,25 126:2 inflict 125:11 126:2 infusion 101:18 increase 32:4 80:8 85:4 ·Index: impervious..judicata instances 20:1 instantaneously 95:13 insufficient 10:10 139:4 intend 16:12 19:15 77:2 127:17 intended 63:12 69:3 117:24 124:20 involvement 24:2 involving 12:1 94:5 isolated 63:1 isolation 68:21 issuance 7:11 issue 4:7,9,11 5:13 7:10,14 8:5,10 9:9,18 11:5,12,14,21 12:5,23 14:15 16:2 19:3 24:20 35:7 46:25 47:23 86:15 116:1,13,17,23 117:12, 24 118:15 119:4 120:6 129:9,24 131:5 132:6 136:21 issues 6:22 15:21 19:6, 24 20:3,4 41:24 94:19 115:22 116:3 117:11 137:15,16 IV 89:10 117:16 J intending 85:10 intends 138:14 James 16:16 intensive 9:24 job 130:19 injecting 26:18 102:8 intent 69:6,8 John 3:14 injection 17:13 18:8 interest 11:17 121:18, Jr 78:12 injected 32:13 109:20 135:9 136:4 19:14 23:16,21 47:7,24 51:6,18,21 56:13, 63:14 72:10 83:12 102:14 119:8 124:7,21 126:11 133:9,12 25 122:13 123:10 124:18 interesting 124:21 interests 123:14 injections 127:23 interfere 52:17 injury 72:10 125:11 interferes 52:15 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com Juan 3:14 4:1 90:25 judge 3:7 24:20 131:21 134:2,3 judgment 5:24 6:15 128:23 129:3 judicata 5:25 9:10 11:5 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 18:3,16,19 19:8 115:25 119:14 123:25 124:12 132:6,11 133:25 137:14, 21,22 judicata'd 132:7 juncture 82:11 jury 130:21 legislature 119:3 locate 42:23 43:1 Lady 139:13 length 85:2 log 61:12,21 language 132:25 lethal 17:13 18:8 19:14 logs 66:22 68:12 large 13:13 29:21 31:14 38:11,12,22 41:23 56:13,14 68:16 86:13 89:23,24 90:13 Justice 128:15 large-dose 35:5 justiciable 6:21 116:3, larger 42:4 90:6 99:21 12 117:11 107:6 largest 23:8 113:14 K Kentucky 122:24 128:14 law 6:14 8:13 10:11 19:12 21:1 48:3 66:4 125:2,4 128:7 132:11 133:9 137:18 139:9 Kentucky's 128:2 lawful 19:15 126:16 key 14:24 15:6 40:8 laws 29:4 kid 49:6 lawsuit 124:9 126:15 kill 42:10 43:7 44:19,20 45:7 71:8 106:22 135:24 138:11 kilo 53:22,25 kilogram 44:21,23 104:16,24 105:11 kilograms 84:22 kind 6:21 34:6 48:7 55:17 80:3 84:13,14 85:6 87:1 96:21 117:9, 23 knees 14:4 lawyer 72:22 lawyers 21:12 29:6 lay 26:10 52:15 67:25 68:2 74:8 75:3 laying 75:4 LD50 30:8,11 31:1 37:24 42:19 43:10,15,16,21 44:14,17,20 104:7,14 105:10,11,12,13 106:7 136:15 LD50S 106:13 lead 13:21 17:10 95:11 knew 66:3 ·Index: judicata'd..main 109:24 23:16,21 43:11 45:4, 47:7,24 51:6,18,21 63:14 72:10 83:12 104:21 119:8 124:7,21 126:10 133:8,12 level 8:24 13:8 25:14 33:10,11,12 37:19 39:11, 40:12 49:13 53:8 54:4,9 59:22 69:9,19,20, 23,25 75:4 84:16 87:19 92:21 98:24 101:17 103:25 109:4,5 111:13 138:6 levels 26:2,3,6 54:5 57:19 70:7 85:20 liberty 11:11 119:22,25 121:24 124:15,18 life 69:7 lift 114:7 ligand 73:23 ligands 32:2 likelihood 6:10 128:17 138:15 limit 7:18 limitation 129:9 limitations 6:3 7:6 9:9, 18 10:1,8 11:20 limited 20:6 47:1,18 knowledge 36:12 leads 49:25 listening 98:4 learn 40:9 literally 132:15 learning 34:19 literature 24:8 55:22 L-u-b-a-r-s-k-y 22:2 labeled 89:2 56:19 76:4 83:22 84:16 86:17 97:6 110:1 113:17 Lee 1:1 77:24 78:12,17 litigate 133:12 left 95:16 105:25 106:1 litigation 7:12 18:21 125:21 58:7 77:11 looked 14:16 121:14 122:13 136:21 looseness 58:24 losing 96:22 lost 132:9 lot 63:21 104:5 105:18 Louisiana 118:25 low 55:1 65:25 70:20 71:18 106:8 lower 44:5 85:22 87:12, 15,18 88:11 133:6 Lubarsky 1:1 4:3 7:13 12:5 13:3 15:12,16 17:12 18:10,22 21:4,7, 13 22:1,4,10 50:24 76:19 82:25 112:21,25 113:3,8 116:7,18 117:4, 7,13,19 118:1,15 124:4 125:24 127:8 128:9 130:12,25 131:16 132:18 134:23 136:9 137:12 138:20 139:7 Lubarsky's 104:12 105:3 lungs 103:15 listened 28:12 leave 139:5,6,8,9 longer 13:22 40:2,6 lunch 77:3,11 119:1 leading 23:23 L 97:14,20 99:10 lines 35:22 124:25 knowing 76:3 38:23,24 43:17 46:3 57:23 68:11 76:2 97:13 103:1 long 95:15,23 96:6 19:3 133:12 labeling 110:2 legal 80:19 81:11 live 4:3 lack 15:6 16:2 38:16 legally 125:19 loading 109:16 41:5 46:1,2 56:7,21 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com M M-o-n-t-l-a-r-y 3:20 Madam 78:5 93:2 made 4:12,13,22 8:16 10:9 14:10,23 27:6 28:13 58:15 67:18 73:12 108:3 120:18 123:1,24 124:14 137:1 138:24 main 44:9 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 maintain 81:14 101:17 130:11 maintained 26:24 102:2 major 59:10,16 87:10 make 8:15 9:2,19 10:11 23:12 25:15,18,19 26:15 29:3,16 32:24 33:16 38:1 40:5 41:20 48:18 49:11,17 57:21 59:15 63:9,17 65:8 67:11,15 70:5 72:14 92:3 93:13 103:6 111:10 112:12 132:24 makes 72:22 74:11 92:8 117:1 137:15 making 125:18 134:2,3, 4 51:6 68:20 82:15 85:21 86:5 121:21 136:4 139:15 matters 4:6 36:5 37:6 Mcdonough 16:15,17 123:5,15 Mcguire 12:6 16:15 64:4,9,13,17,18 65:9,21 74:22 75:21 116:20 117:18 118:17 meaning 8:20 28:6,18 32:3 44:10 55:16 117:21 means 25:1,3 40:1,6 43:22 44:3 49:24 51:8 52:15 58:21 meant 110:14 measure 14:3 44:12 malpractice 71:25 mechanics 100:20 mammals 43:19 mechanism 28:11 man 53:12 72:5 84:17, 20 117:6 127:9 manifest 55:6 Mann 10:5 125:17 manner 8:4 42:6 117:16 124:24 manufacturer 30:23 136:14 manufacturers 108:18 marked 79:16,21 markedly 26:3 market 43:17 marshal 4:8 mask 48:18 masking 63:18 69:14 massive 99:7 material 37:1 82:24 110:2 materials 24:3,4,5 39:16 65:20 mathematical 85:8 matter 10:11 25:17 30:16 32:17 35:21 42:7 31:25 35:15 49:22 50:4 62:9 71:20 73:15,17 mechanisms 24:10 medical 16:20 17:16 33:14 45:16 46:7,13,20 57:22 67:21 76:13 87:6 88:4 92:1,2,23 122:15 123:8 127:16,18 medication 19:13 80:23 92:9 121:12,21 122:6,10 124:20 medications 80:1,2 medicine 83:16 meet 16:18 128:19 meeting 6:11 memorized 59:23 memory 52:16,17,18,24 mental 34:18 mentally 122:9 mention 14:23 137:12, 19,21 138:3 mentioned 33:9 34:24 39:2 41:3 54:22,23 64:3 80:16 109:11 110:13 118:24 ·Index: maintain..months meperidine 87:13 Miller's 23:24 mere 131:25 milligrams 13:8,22 merits 6:10 7:23 119:11 138:16 met 127:19 method 64:14 125:10 126:8 methodology 32:23 Miami 60:23 mice 43:20 44:21 45:13 104:15,20 Michael 3:14 midazolam 8:7,10,16, 19 9:8 11:16 12:4,15 13:1,4,19 14:8 17:2,6, 15,21 23:1 24:13 25:15 26:6 27:2,7,9,11,25 28:3,9,16 29:7,12,18 30:1,9 31:7,8,12,16,21, 25 32:5,7,9,11,12 33:6 34:12 38:13 39:17,22 40:1,20,23 43:6 44:15, 25 45:17,22 46:8 47:10, 12 48:22,23,25 49:10, 19,24 50:2,6 51:23 53:11 54:13 55:1 56:5, 14 57:9,10,25 59:2 60:6, 7 63:4 64:19 65:3,24 66:7,17 68:12,16 69:2,8, 23 70:9,23 71:4,23 72:8, 9,15 73:14,16 74:21,24 75:25 76:2,4 82:16 83:3, 5,19 84:4,12,16 85:3,19 86:6 87:3,12,17,25 88:1, 24 89:5,13,17,24 90:13 91:18,21 93:24 94:4,11, 21 95:10,21 97:4,8,24 98:8 99:12 100:20 101:13,15,20,23 102:13 103:5 104:9 106:22 107:24 109:13 110:23 113:9,12,16,18 114:24 116:16,21,25 117:3,12 118:5 126:1,19,23 127:9 129:16 130:7,8 132:1 134:7,18,21 135:2,14 138:1,8,13 17:15 31:9 33:6 40:19 44:21 45:9,10 53:22 54:1,14 57:11,13 64:19 65:2,8 69:17 71:4,6,8 72:2,5,8,9 83:4,10,11, 14,18 84:10,23 85:13 87:25 88:1 89:11 95:21 97:6,8,15,24 98:19 99:8, 10,12 104:16,23 105:11, 14,18,22 106:5,22 109:13,16,23 117:1,6 127:4,8 135:18,21,22 138:9,10 million 23:10 mind 77:7 87:23 115:20 127:3,5 minor 14:9 minutes 13:21 17:8 50:18 60:9 83:22,23 84:1 96:10,12,13,16,20, 23 107:13 miraculously 126:10 mishap 117:23 mishaps 18:18 misleading 16:8 misread 56:7 mixed 19:25 mockery 29:3 modern-day 93:8 moment 9:22 25:3 50:11 58:18 61:13 62:24 75:10 93:1 107:18 115:13 momentarily 3:19 21:10 moments 96:3 monitored 103:23 monitoring 28:24 67:15 monitors 63:6,23 Midazolams 74:5 month 119:5 middle 3:5 121:16 months 7:8 119:5 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 Montlary 3:20 20:11 nametags 114:8 moot 4:10 narcotic 27:23,24 84:12 morning 3:10,11 78:22, 23 83:1 105:5 motion 5:16 19:21,22 132:16 137:9,12 138:24 139:4,5,7 mouth 136:17 mouths 131:23 move 18:3 20:8 39:22 40:3,5,10 77:8 100:18 136:5 moved 40:1 movement 12:8 13:14, 24,25 14:1 15:16 39:19 40:6,15 41:6,13 62:10, 14,17,25 63:10 74:23 118:9,20 119:4 movements 46:1 55:17 56:22 74:20 75:1 117:20 moving 40:2 56:16 62:19 65:16 128:12 Muhammad 5:14 9:7, 13,16 11:24 12:4,7,10, 20 13:10,16 14:5 15:1, 23,25 16:14 17:2 18:15, 23 20:5,24 27:4,7 37:20 48:6 59:20 61:4,9 62:11, 15,16,19 65:7 66:9 75:21 82:15 112:16 115:24 116:15,20 117:18 118:8,11,14,18 119:1,5 123:23,24 126:18 128:6 129:7 131:22 132:7 133:22 136:20 137:14,23 Muhammad's 116:10 multiple 138:12 mumbling 80:13 murder 124:16 muscles 62:7 muscular 41:13 N names 130:1 87:13,15 narcotics 29:22 nation 23:22 naturally 71:16 naturally-occurring 74:10 nature 46:11 natures 94:18 necessarily 25:18 33:6, 21 45:1 52:9 55:10 61:2 65:25 82:9 84:6 99:18 106:15 134:23 neck 114:6 needed 40:13 41:18,20 53:11 needless 125:12 126:2 Nelson 120:14 nerve 29:23 nerves 27:21 nervous 71:16 83:25 95:15 Netherlands 35:24 36:16 38:13 neural 75:13 neurology-based 80:4 ·Index: Montlary..operating 133:5,7 137:5 138:3,19, 23 139:12 observer 63:16 66:25 normal 31:25 44:3 55:4 observers 63:23,24 83:16 88:11 97:16 98:22 99:20 102:16 106:4,6 note 4:7 35:22 66:10 notes 61:10 129:13 notice 5:11 127:21 128:10 noticed 128:18 notion 12:15 126:12 noxious 16:10 24:17 25:4,14,25 26:2,3,7,15 29:16 32:13 33:11 34:3, 5 40:7,18 69:10 85:12 93:15,20 94:5 102:10 110:24 117:21 132:4 135:1 136:3,4 Norgard 1:1 3:25 4:19 19:9 20:10,19 21:11 22:3,8,18,21,22 30:19, 20 31:2,6 36:3,22 37:15, 16 38:6 41:10 42:17,25 43:5,9 47:5,6 48:12 60:10,15,17 73:7,9 76:15 79:20 81:25 82:5, 8 90:21,23,24 92:25 93:4,5 107:18,21 108:8, 10 111:21,22 112:11,18, 20,24 113:7 115:4 129:2,23 130:2,14 obtain 113:19 occasion 80:17 occur 25:15 88:24 occurred 11:18 12:4 39:16 61:7 67:6 69:1 occurring 68:23 71:16 89:18 occurs 62:25 88:11 offer 13:6 14:11,19 76:21 112:16 offered 116:12 123:3,4 135:16 offering 94:1 noxiousness 26:6 offers 16:17 number 3:13 5:25 Office 3:18 23:13,15,25 24:16,17,18 45:8 51:5,8 96:16 100:24 104:17,25 105:1 109:3 135:19 numbers 105:6 numerous 9:12 51:16 116:19 OFFICER 3:4 50:20,22 77:14,16 112:7,9 139:17 official 64:23 oftentimes 84:11 88:12 111:8 Ohio 9:1 12:6,16 64:4, 10,11 66:12 nurse 56:4 O neuronally 41:23 non-noxious 52:20 67:4 Norgard's 137:11 neuronal 71:21 nobody's 56:12 observed 46:5 63:6 oath 21:8,14,16 78:3 113:1 object 6:12 30:14 35:25 41:4 46:24 objecting 41:4 objection 4:12,15 5:5, 19,20 36:24 41:9 42:19, 21 47:14 48:4,7,11 60:10 72:22 79:19,20 81:24 objections 82:3 observation 68:9 observe 67:10 88:18 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com Ohio's 64:14 66:11 one-drug 11:24 12:11 118:25 125:18 126:10, 13 135:16 open 40:21 41:14 61:25 62:1,3 75:6 111:4,8,14 114:2,11,14 opened 41:12 61:18,22 62:4 75:10 opening 40:24 41:6 61:3,7 62:11,15,17 64:2 119:19 operate 60:22,25 74:2,4 101:8 operating 40:10 52:21 54:4 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 operation 23:10 70:8 115:3 opiate 59:10,13 64:19 65:3 87:10 126:9 127:13 opined 117:19 127:22 overrule 41:9 48:4,10 overseeing 23:10 overwhelms 39:8 oxygen 83:7 94:22 95:7 134:10,15 137:25 opinion 20:25 38:21,24 41:15 45:16,21 46:7,9, 12 47:3 48:1 50:5 64:23 65:21 66:2 85:13 86:5 95:11,23 96:5 126:4 133:1,3,15 134:10 opinions 24:11 37:5, 43:7 47:24 74:19,22 92:7 131:23 opioid 94:15 opioids 30:2,5 135:3,22 opponent 47:25 opportunity 10:18 18:12 20:22 21:4 76:21 112:14 129:10 132:14, 17 opposed 16:1 71:19 P p.m. 77:15 112:8 139:18 pain 8:21 15:9,16 27:25 28:6 30:2 39:5,7,24 46:15,17 48:18,24 52:23 69:22 70:2 75:17,19 76:7,11 85:12,17 86:11, 23 88:2 94:19 96:20,23 97:24 100:16 102:22 103:13,14,25 117:21 118:3,10,20 127:6,14 134:23 135:5,15,23 136:1,5 138:9 pain-relieving 59:11 painful 26:21 39:7 ·Index: operation..pharmacological paralyzes 134:12 135:10 136:4 paraphrasing 126:5 Pardo 10:5 125:17 perfectly 30:17 perform 68:6 performing 27:1 59:9 127:15,16 parenteral 102:14 period 10:8 37:1 133:7 part 14:25 24:2 29:19 permission 3:21,23 30:21 32:12 39:8 43:13 74:9 92:22 107:9 109:7 131:9 134:11 pass 61:24 111:4 past 18:11 patient 31:19 34:22 40:14 41:18,19,20 42:13 52:5,8,23 54:9 55:2 58:22 59:4,16 63:4 72:1 87:16 92:15 114:11 patient's 52:19 patients 33:16 80:2,23, 25 81:12,16 93:9 Paula 3:19 pause 13:22 permitted 76:20 138:22 perpetually 103:23 person 13:24 15:9 17:10 29:19 31:17 32:11 33:5 35:6 39:4,12,18 40:1,19 46:10 48:21 52:15 53:23 58:20 61:6 75:4 76:1,6,10,25 86:23 87:1 91:17 93:14,19 95:23 99:5 100:6,11,15 101:21 102:22,25 103:6, 17,24 105:14 107:8 114:20,25 134:8,13,22 person's 75:4 personal 38:23,24 opposing 119:18 76:11 86:14 94:25 95:4, 5 103:2,5,9,10 123:13 134:14,15 135:12 opposite 15:7,17 painkiller 134:21 135:4 peer-studied 36:11 oranges 8:18 131:14 painless 59:16 pencil 104:4 personnel 28:25 painlessly 135:24 penetrates 83:24 perspective 80:19 81:1 painted 98:1 penological 121:18,22 Palmer 3:14 pentobarbital 8:14 90:5 129:25 136:20 order 5:12,16 6:19 8:1 14:25 16:18 19:21 24:11 29:18 76:20 103:13 112:15 138:17 ordered 4:8 5:18 orientations 106:2 outcome 98:17 99:10 outline 8:9 24:3 outlined 24:4 39:17 outset 96:13 outweighs 123:14 overcame 75:12 overcome 49:13 overcoming 34:8 overdose 65:3 110:7,23 panic 26:13 34:19 35:9 paradoxical 14:23 15:5 16:23 18:2,13 24:9 34:11,13,18 35:7,9,12 42:14 54:22 55:5,18,22 56:1,10,12,17,25 57:2 88:8,15,19,20 89:2,8,13, 18,22,25 90:10 124:5 128:7,8,17 136:11,13 138:25 parallel 95:8 paralytic 11:10,17,20 46:19,23 47:3,10,13 48:14,16,24 69:4 100:13 122:18,22,25 123:17 paralyzed 103:15 peer-reviewed 23:19 36:11,19 49:15,18 50:6 70:14 90:6,14 93:6,8 101:2 129:15 130:7 135:20 pentothal 13:2 70:13 people 23:13 33:14, 34:18,20 44:4,5,20 53:19 56:7 60:24 62:2 63:3 66:23 67:25 68:2 70:6 71:10 74:20 86:10 89:4 92:23 102:2 105:21 106:10,15,16,17 120:21 135:24 136:17 pepper 131:15 136:20 percent 34:23,24 43:11, 23,24 45:7 54:25 88:12 89:8,14 104:15,20 106:22 117:7 128:9 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com personality 54:19 personally 23:6,11 63:6 67:9 92:14,20 109:6 85:6 89:10 pertaining 115:23 pertinent 12:22 23:4 Ph.d. 91:9 pharmacist 81:19 91:15 Pharmacists 81:21 pharmacodynamic 49:24 105:19 106:20 pharmacodynamics 29:5 pharmacokinetics 29:4 pharmacological 86:18 88:5 98:17 99:9, 20 107:4 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 pharmacologically 83:17 pharmacologist 79:24, 25 108:16 pharmacologists 109:1 pharmacology 81:23 108:17 pharmacotherapy 81:1 pharmacy 79:3 81:4,20 91:6,9,10,12 phase 61:19 phenomena 90:11 94:9 pleasurable 109:21 podium 115:19 point 6:2,15 11:8 12:22 16:7 17:19,25 24:14 31:17 32:10,23 36:22 39:7 40:14 41:8 42:9,17 43:23 45:12 48:6 61:18 65:19 69:9 77:2 98:18, 19,23 100:18 101:21 117:4 118:1,18 121:5 122:20 128:4 131:3,7 133:14 136:2 137:24 pointed 14:24 122:23 132:19 points 9:6 32:9 119:18 ·Index: pharmacologically..procedures 10,14 87:6 88:10 92:17 93:7,8 95:21 126:23 practices 48:1 91:17 125:14 130:25 practicing 92:10 practitioner 56:4 59:3 practitioners 58:11 110:6 preanesthesia 98:24 precedent 9:9 10:5 47:21 137:22 precedential 47:16 48:5,8 pool 26:11 49:5 preceding 48:9 120:8 poor 70:4 precisely 42:7 phrase 130:14 population 25:19 34:22 preclude 5:2 6:6 19:2 physical 68:17 42:8, 44:13 54:25 63:8 120:7 phenomenon 86:24 88:13 physician 38:23 71:25 72:4 92:11 physicians 54:10 60:21 physiologic 67:16 pick 73:10 piece 86:9 99:25 102:5, 24 pin 75:5,7,11,12 place 21:15 63:22,23 78:3 111:10 precluded 7:2 12:13 124:9 presiding 3:7 pressed 131:3 pressing 135:8 136:2 pressure 103:12 presuppose 47:16 pretrial 121:15,23 pretty 19:11 35:18 55:21 74:8 81:2,13 83:17 84:24 86:22 90:9 103:2,8,10 prevail 123:17 prevent 8:20 11:19 110:17 135:5 136:1 preventing 124:4 prevents 97:24 previous 8:13,14 26:20 35:16 46:4 96:8 104:13 previously 15:5 79:17 populations 55:2,9 predicate 46:9 portion 29:24 predominantly 122:2 pricked 75:5,10 posed 16:11 Preference 112:19 primarily 13:10 27:11 position 5:23 133:11 preliminarily 4:6 principles 19:2 possibility 17:18 54:23 preliminary 6:22 38:2 prior 8:7 9:8 11:16 13:1 56:24 69:14,21 88:7 111:3 116:11 possibly 13:23 85:1 128:19 premedication 132:3 preop 52:20 116:15 18:18,19 27:21 40:17 61:23 67:6 93:24 116:5 127:3 preparation 24:6 prisoner 121:23 Post 64:12,16 119:2 prescribe 92:3 109:6 pro 5:1,5 places 38:12 postulated 34:16 98:10 prescribed 42:7 84:15 probability 45:2 57:3 plaintiff 4:1 7:3 19:12 posture 124:3 prescribes 92:8 potassium 26:17 34:4 present 8:20 16:11,22 22:5,13 113:4 plane 14:13 26:23,24 28:19, 45:23 58:25 59:5, 6 68:3,6,14 72:15 74:17 76:7,9 93:19 99:17 101:24 114:13,20,25 117:2,13 play 35:7 95:18 pleading 4:18 137:8 pleadings 5:22,24 6:11, 13,15 8:11,16 119:6 121:8 128:23 129:3 132:15 48:18 92:20 102:8,9,15, 23 103:3,7 124:23 126:12 127:23 128:3 potential 7:24 114:9 119:11 potentially 7:25 37:22 45:4 123:13 pounds 53:12,24 54:17 20:23 21:4 67:10 139:6 presentations 139:14 presented 9:12,13,16 15:5 20:24 116:15 122:17,23 132:22 133:2 134:5 presenting 81:16 133:20 136:8 139:1 Powell 62:22 presently 81:3 practice 17:6 51:24 preserve 12:23 57:25 60:7 80:22 81:7, Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com 89:14 128:10 problem 87:22 102:18, 20 132:6 problems 23:17 100:1, 2 procedure 27:21 28:1,2 63:5 67:17 86:12 87:11 101:20 102:12 120:16, 22 121:1,20 122:3 127:11,12,16,18,19 138:21 procedures 14:9 84:14 101:22 102:2 111:9 121:2 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 proceed 77:21 proceeding 48:2 116:5 proceedings 14:14 27:4 121:16 124:1 139:18 process 4:7 7:20 19:7 52:9 59:5 63:14,25 70:16 104:9 120:1 125:7 134:16 135:25 processes 43:14 produce 12:21 28:17 29:13,14 30:9 59:4 66:7, 8 68:14,15 70:24,25 74:17 76:5,9 132:8,18 12:11 17:9 23:1 24:13 26:6 27:2 28:9 29:19 30:10 31:7 32:12 40:24 45:11,17 46:8,12,18,20 47:10 48:22,23 51:21 64:14,23,24 65:2,4 66:6, 11,14,15,17 76:5 83:12 89:19 95:17 97:5,10 98:3 100:12 103:5 118:24,25 119:7 125:18 126:10 128:2,5,13 134:8 135:4,9,17 protocols 11:3 23:16, 17 47:7 prove 120:22 121:25 137:10 produced 132:9 proved 134:5 produces 76:8 provide 27:14,23 29:24 producing 38:16 profession 109:8 professional 41:15 proffer 38:5 43:2,4 proffered 15:4 123:16 37:18 38:1 45:23 64:25 66:13 110:7 provided 25:11 79:17 84:25 116:2 psychiatric 54:19 80:4, 23 81:19 91:15 program 23:8 publication 23:20 prone 34:20 35:8 publications 23:19 prong 47:11 pronouncement 61:24 79:11 24:8 properly 14:18 pulled 105:1 properties 8:18,20 pulling 134:13 135:7 pump 135:22 punishment 124:17 126:16 127:24 proposed 68:19 pure 42:2,3 proposition 17:21 purpose 16:20 24:14 18:15 126:7 propriety 120:16 122:15 prosecutors 51:20 protected 111:11 protecting 114:10 protocol 7:5,8,11,22,24 8:5 10:7 11:15,22,24 26:10 66:2 87:1 89:14 108:7 130:12 133:21 putative 24:10 puts 123:15 putting 68:20 99:1 129:23 37:17,25 43:8 46:20,22 48:13 97:21 106:18 114:10 122:22 123:6,8, 17 138:13 Q pursuant 5:12 push 103:21 raising 6:24 10:9 19:7 119:20 124:4 ran 95:7 57:12 106:4 rapidly 34:1 83:23 qualifications 22:15,25 82:4 131:1 107:10 rarely 27:25 qualifies 23:12 rate 26:5 qualities 14:12,20 rats 43:19 44:20 105:10, 52:12 12 106:14,16,19 quality 63:24 reach 39:12 98:8,11,19 quantifiable 53:13 101:23 131:6 quantity 52:4 53:3 reached 99:18 quarter 23:7 reaching 86:18 question 9:14,22 10:16 react 73:18 103:2 18:20 34:2 36:1, 37:23 38:10,20 60:16 66:12 69:8,25 73:2 121:10 130:12 119:7 39:9 42:18 49:3 76:16 90:19 91:4 108:9 111:19,22 112:21 113:25 115:6 quick 7:16 58:4,8 129:11 quickly 11:8 83:18,20, 24 84:1,13 90:3 95:13 96:4,5,19 115:17 quote 126:24 quote/unquote 117:23 R reacting 55:24 56:2 reaction 15:6 18:13 35:7,12,17 54:22,24 55:5,22 56:1,10,12,25 57:2 62:6 75:16,18 88:19,21 89:1,2,13,18, 25 104:5 117:20,24 124:5 128:18 reactions 14:24 15:12 16:23 18:2 24:9 34:11, 13,18 35:10 42:14 55:19 56:18 88:8,15,20 89:9, 22 90:10 128:7,9 136:12,13 138:25 reacts 103:24 read 36:17 37:11 59:22 61:11 89:20 104:12 119:1 136:17 137:20 readily 86:17 101:12 reading 66:22, 108:24 133:2 purposes 6:24 24:13 93:15,25 97:5 102:7 104:8 114:18 136:19 12:18,24 14:25 18:1,17, 18,20,22 19:4,9 24:20 48:7 119:10 124:1,2 137:15,16 range 53:5,22 54:1 questions 10:10 20:1 pull 31:3 propofol 27:18 58:5,6,7 put 9:22 10:23 23:13 questioning 107:22 published 23:15,21 proof 128:20 28:4,5 31:22 32:8 59:11 70:9,13,19 71:13,14,15 86:6 94:12 127:10 ·Index: proceed..reaffirmed rage 88:21 readings 35:23 raise 8:5 18:12,17 19:24 ready 77:21 21:17 124:6 raised 4:7 8:3 11:13,24 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com reaffirmed 127:2 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 real 93:13 94:8 95:25 96:7 126:14 realm 92:23 rear 34:6 reason 19:1 38:9 48:6, 16 52:18 58:9 63:14 104:11 116:8 117:16 124:6 126:14 127:11 131:20 reasonable 17:16 32:15 33:1 39:21 45:2, 16 46:7,13 63:18 75:9, 16,18 76:13 88:4 117:19 reasons 9:10 47:2 rebuttal 112:21 129:2 130:12 recall 60:1 115:8 118:9 132:25 recalled 1:1 113:4 received 63:3 79:22 83:1 receiving 40:1 41:2 100:11 104:15 recent 6:1 82:13 recently 5:14 18:7 82:14 receptor 32:3,4 42:1 73:20,25 85:23,24 86:1 101:4 receptors 28:16 32:1 70:10 71:15 73:18,19,22 74:2,11,14 85:23, 88:25 90:3 98:12,14,16,19,23 100:21,22,24 101:2,5 110:13,15,16,18,20,23 recess 50:17,21 77:13, 15 112:6,8 reckless 72:4 reconsideration 19:21 relation 73:19 reconvene 77:4 relationship 107:5 repeat 62:13 record 3:15 15:23 20:2 relative 39:16 repeatedly 47:19 21:25 22:11,20 33:13 78:11 131:10,19 132:25 recorded 56:18 records 12:21 recover 71:10 relevant 45:12 47:1 48:2,3 67:15 82:20 118:23 recross 76:17 reliable 27:16 58:6 Redirect 1:1 73:6,8 reliably 17:7 25:17 108:14 reduced 84:11 reducing 44:11 refer 62:21 65:23,24 reference 4:22 30:15 42:23 88:7 44:19 65:8 66:7 70:25 71:9 reliance 38:17 relied 37:1,6 120:9 relief 6:6 27:25 relies 19:13 30:22 referenced 31:3 36:15 relieve 28:6 references 30:25 relitigating 19:5 referred 24:12 61:4 rely 36:5,11 37:5 44:19 81:12 45:15 131:16 133:23 21 86:23 125:17 repetitive 23:22 63:10 repetitively 42:5 reply 4:13,17,22 5:6 report 41:6 62:18 63:10 reported 36:18 40:24 46:1 62:14 63:11 67:14 74:19,23 83:13 89:7 131:23 136:14 reports 62:16 66:22 67:9 75:20 89:4 90:10 represent 79:10 representations 122:25 representing 4:20 represents 90:25 request 3:21 requesting 137:6 require 44:5 137:8 referring 64:4 102:1 relying 8:13 refers 62:25 remain 23:19 113:1 refuse 124:22 remaining 119:16 regard 7:18 9:20 19:24 remains 15:21 requirements 137:8 remand 47:1 requiring 5:12 remedy 6:4,8 res 5:25 9:10 11:5 18:3, 20:3,4 28:11 124:13 regarded 23:24 regional 29:22 regular 69:18 87:6 regulation 86:1 regulatory 86:1 regurgitate 22:19 129:9 recognized 47:2 rejected 47:19 125:16 recollection 52:6,8 related 24:9 27:17 reconcile 118:7 relevance 30:11 reliability 38:16 68:12 reject 138:18 recommended 115:2 releasing 62:7 recovery 59:15 recognize 18:1 133:16 recommend 38:15 ·Index: real..residual 30:12 42:19 65:20 66:9 73:21 74:24 relates 5:15 17:22 20:5 64:11 98:8 remember 52:10,11 84:7 95:2 104:17 134:22,24 required 5:16 29:18 53:16 59:12 84:17 99:3 128:15 136:13 15,19 19:8 115:25 119:14 123:25 124:11 132:6,7,11 133:24 137:14,21 remind 112:25 rescue 137:13 render 13:23 14:17 research 3:19 7:23 17:7,9,15 29:19 53:11, 17,19 54:1 60:8 70:1 72:3 76:10 83:20 85:10, 11 109:7 114:20 121:9, 12,15 124:10 126:4 127:9 134:8 rendered 4:9 13:20 20:25 33:5 54:15 84:5, 17 86:10 117:9 rendering 17:22 58:20, Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com 23:3,15,18 31:15 37:9 84:16 88:14 reserve 38:5 reside 60:22 residency 79:3 residents 41:16 residual 58:7 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 resist 121:11 resistance 41:25 resistant 42:14 44:4 resisted 122:12 resisting 11:17 resolved 6:14 46:25 47:23 resort 128:7,21 respect 15:25 16:2 28:3 35:11 39:18 70:19 104:14 review 16:17 23:3 36:17 39:15 46:19 61:10 65:20 80:18 82:20,23 83:2 115:25 reviewed 24:3,5,7 36:15 37:11 59:23,24 61:14 89:7 105:3 132:10 ride 52:20 ridiculous 124:15 Riggins 120:9 121:6 122:7 rightly 16:7 122:23 respiration 14:2 67:15 ring 129:22 83:6 94:22,25 134:10 135:13 respond 10:18 25:3 33:7 88:23 119:17 responded 5:17 responding 25:2 responds 99:6 response 6:22 14:2 33:13 38:19 48:17 87:14,16 responses 110:17 responsive 73:1 responsiveness 44:3 rest 21:9 restart 10:8 restless 55:15 restraining 5:16 138:17 rings 108:4 rise 3:4 20:10 50:20,22 77:14,16 112:7,9 139:17 risk 34:11,13,17 35:9 45:18 46:14,16 risk-free 126:6 risks 11:18 road 7:9 119:13 room 21:9 40:10 52:21 54:4 56:5 Roswell 1:1 77:24 78:12,17 routinely 14:9 43:16 52:24 row 119:21 124:16 Rudenstine 4:1,21,25 5:8 6:18 10:17,21 16:6, 24 29:6 31:3 112:11 115:12,13,16,21 118:11 119:25 120:5,13 rests 10:1,2 Rudenstine's 4:11 result 19:16 45:1 85:14 Rule 137:8 resulting 48:21 rules 37:13 138:21 results 15:6 42:4 44:14 ruling 19:23 38:5 retake 50:25 run 113:14 reversed 47:4 safety 17:2 44:12 82:15 select 34:23 126:19 salt 131:15 136:20 salts 33:25 34:6 saturate 98:22 saturating 90:2 98:23 99:8 save 3:8 scanned 105:5 scenario 85:18 88:20 98:1 schedule 115:10 school 33:15 81:4 science 44:7 70:4 74:23,25 76:4 91:6 scientific 12:17 31:10, 15 36:4,19 56:18 97:6, 22 107:1 133:16 scientifically 39:10 54:7 safe 106:18 138:13 sensation 8:21 138:4 sense 26:13,15 65:24 sensitive 44:5 sentence 19:15,19 69:7 separate 7:12 September 7:5 served 46:20 service 4:7,9 session 3:6 77:17 112:10 set 5:22 80:24 125:9 127:20 setting 19:22 112:15 settings 14:3 93:25 95:22 settled 39:10 severe 15:13 83:7 89:3 103:11 shake 33:20 103:21 shaken 33:8 Scott 3:17 shaking 135:8 136:3 scratch 114:7 shape 59:3 screamed 137:5 share 22:24 seated 3:9,12 21:22 shipped 122:9 50:23 112:10 secondhand 46:5 Secretary 16:16 123:5, 15 SECURITY 3:4 50:20, sedate 57:10 short 84:5 138:23 short-acting 8:22 13:5 shorter 77:8 107:14 shorthand 24:13 97:5 shot 133:13 shoulder 33:8,21 103:22 135:8 sedated 55:13 56:3,9 show 6:9 13:3 44:9 sedation 44:10 56:22 showed 104:14 94:1 S Sell 11:12 120:8 121:12 scientist 23:21 22 77:14,16 112:7,9 139:17 return 21:10 reversal 35:4 55:12 seeking 5:1 124:8 saturation 98:19 131:6 rigidity 55:17 respiratory 13:23 71:1 safely 60:7 126:23 saturated 98:14 99:12 respectfully 117:25 138:2 ·Index: resist..shown sedative 8:17 9:4 27:12 52:25 53:3 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com showing 57:1 79:15 133:22 shown 125:9 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 ·Index: shows..studied shows 132:1 sledgehammer 104:4 specificity 16:2 shut 95:14 110:10,20 sleep 23:13 56:8 speculate 75:6,8 111:12,15 114:4,5 136:8 shutting 107:7 138:3 sickness 53:8 side 44:4,5 138:2 significant 8:19 15:11 38:8 64:2 129:14 significantly 44:22 129:25 signs 57:1 silence 28:18 31:21 49:11 50:1 68:15 70:24 74:18 113:20 silent 70:7 similar 70:1,19 89:18 90:8,9,13,16,17 similarities 15:24 20:6 similarly 32:1 simple 25:5 49:17 50:7 62:10 simply 6:23 9:5 10:24 11:1 47:20 55:17 62:6 71:20 76:5 96:18 99:23 103:21 122:10,11 123:2 124:22 126:13,14 131:2 135:13 single 17:6 41:5 43:12 95:16 126:23 133:8 sir 21:5 22:9,21 43:8 73:7 81:5 107:20 108:13 112:2,24 139:12 sit 3:21 66:14 situation 11:4 69:6 85:16 93:23 95:2 133:20 134:19 sleeping 25:5,7 slightly 74:14 77:8 slower 13:12 slowly 110:7 small 27:13 43:19 84:24 89:12 128:18,19 135:11 smaller 57:3 84:8 smell 34:7 smelling 33:25 34:5 Society 81:21 socket 103:13 sodium 13:2 49:14,17 90:5,14 93:10 101:1 129:15 130:6 sole 29:13,14 45:23 59:4 68:15 72:16 76:9 94:4 114:10 115:2 solely 74:22 42:2,3 99:23 sped 7:20 speedy 27:17 spell 21:25 78:11 spend 33:14 spot 10:23 square 130:16 111:10 Sonya 4:1 sort 15:14 16:10 37:6 71:17 sorts 41:24 42:1 sought 5:24 133:3 sound 104:18 sounds 98:4 source 43:2 size 71:8 85:5,7 speaks 115:17 skill 80:24 specific 23:12 38:10,20 skip 89:24 43:22 61:14,21 66:11 73:23,24 82:3 98:8 125:5 137:8 specifically 7:1 34:18 55:1 139:4 110:3 states 3:5,7,8 9:1 11:12 23:18 51:13,19 113:15 119:7 126:9 statistical 44:6 statistically 53:18 status 67:16 statute 4:18 6:3 7:6 9:9, 18 10:1,8 11:20 129:8 stable 87:16 stay 6:7,8 33:16 138:18 stack 130:23 step 21:13 58:25 stand 4:18 21:15 50:17, stepped 21:9 25 77:13 134:5 standard 12:1 16:18 125:8 standards 12:2 60:22 61:1 120:20 start 59:5 71:10 80:13, someone's 27:21 69:7 statements 27:6 44:18 statutory 4:22 somebody's 33:24 103:21 58:15 stabilize 87:14 stands 17:21 18:15 speak 80:5,11 115:22 slaps 25:6 speculation 41:5,8 solemnly 21:17 78:6 situations 132:4 slapped 25:7,9 135:17,23 statement 16:19 35:23 20 99:7 130:3 starting 48:14 starts 134:16 starvation 134:11 state 6:1,5,24 7:17,21 8:10 9:6,12,13 10:8 12:10 14:6 18:5,8,13,21 19:4,9,17 21:24 33:22 38:19 45:1 51:10,17 59:21 64:10,11 66:4, 67:11 76:6,20 78:10 82:15 84:13 86:10 87:2 102:3 111:7 120:18 121:25 122:20 123:16 124:1,5,8,10,24 125:10, 19,25 126:17,20 127:15 128:22 130:11 132:8,9, 24 137:6 138:10,14,20 139:1,3 State's 10:22 13:18 42:19 121:17 122:13 stated 15:15 42:20 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com stethoscopes 114:8 stimulation 75:12 stimuli 16:10 24:17 25:2,4,14 26:1,2,3 29:17 32:13 33:11 34:3 40:8 54:3 69:10 85:12 86:14 93:15,20 94:5 102:10 103:2,5,24,25 110:24 117:21 118:4 135:1 136:3,4 stimulus 25:11 33:3 40:18 49:13 110:17 stipulate 82:8 stop 15:20 17:19 40:12 41:18 49:8 58:10, 62:18 72:23 86:4 95:3 story 10:25 133:19 straight 89:25 stretcher 52:20 strong 32:13 47:24 structure 130:4 struggle 26:14 struggling 138:5 students 81:15 studied 32:22 42:2 56:12 86:17 110:1 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 studies 12:17 14:20 31:10,13,15 36:11 39:1 43:14 73:21 79:25 96:15 97:7,11,13,22 108:24 109:1,12 117:5 136:15 138:11 study 30:15 31:1 37:11, 13 38:7 84:16 88:14 studying 55:8 108:17 stuff 135:20 subject 92:7 109:19 133:8 subjects 108:20,25 109:9,17 submission 137:11 submit 10:10 130:24 submits 6:1 submitted 5:18 subpopulations 34:17, 23 substantial 6:9 7:7 8:13 9:17,20,25 10:3 11:22 46:14,16 89:17 90:12 129:14,20 138:15 substantially 8:6 49:18 substitutable 114:23 substitute 74:15 substituted 8:14 substituting 10:6,25 50:6 substitution 8:6,12 9:3,4,7 10:9 11:16 50:7 131:25 succeed 119:11 138:16 success 6:10 successfully 13:12 100:1 successive 137:9 successor 132:16 suffer 72:9 suffered 52:23 suffering 125:12 126:3 suffers 15:14 sufficient 37:18 85:13 114:20 115:1 125:19 138:11 sufficiently 40:6 93:14 102:25 103:6 suffocation 49:9 97:25 suggest 39:25 46:6 89:21 suggested 26:20 suggests 31:19 63:12 suit 124:12 sum 63:2 summarize 16:13 ·Index: studies..testified surgical 14:3,9,13 26:22,23 27:21 28:1,2, 19, 45:23 59:1,4,6 68:2, 6,14 70:8 72:15 74:17 76:7,9 87:10 93:18,25 99:17 101:20,22 102:1, 4,11 111:7 114:13,20,25 115:3 117:1,12 127:11, 12,18 surpassed 127:19 surrounding 75:14 surroundings 86:24 survive 43:24 susceptibility 55:3 susceptible 16:9 54:2 55:9 102:1,4, 105:14,15,20 106:14 110:19 113:17 121:21 129:20 131:1,21 135:14 talks 83:22 tamp 32:5 Tampa 3:18 tap 14:3 33:7,20 103:8, 10,11 tape 111:12 114:4,5,9 taped 114:1 task 35:24 39:1 44:20 teach 40:8 teaching 33:14 summary 14:7 137:17 Sustained 36:2 50:9 team 92:22 supervising 92:12 swear 21:18 78:6 teeth 134:13 135:7 supplemented 30:5 switch 57:20 126:13 telephone 78:19 supply 22:12 switched 118:25 126:9 telling 67:12 71:3,12 support 12:17 14:20 syringe 87:24,25 96:6 supportable 9:5 system 71:16 83:24 84:1 95:15 101:9 107:10 106:21 temporary 5:16 ten 13:7 96:13 supported 131:18 systematically 94:8 tend 55:19 69:2 supports 131:4 systems 44:2 80:1 Tender 50:12 supposed 28:1 47:13 81:21 107:7 110:11 suppresses 31:17 tenets 40:8 T suppressing 32:18 34:8 138:2 suppression 32:18 35:20 table 3:22 20:13 40:10 118:22 takes 71:7 Supreme 9:14 13:17 14:7,16 15:15 18:6 46:25 47:1,3 120:15,24 122:21 123:2 125:4 127:20 132:10,25 133:10 surface 95:7 surgeon 40:11 surgeries 94:5 111:9 surgery 28:22 59:10,17 69:12 102:6 103:21 114:2,3 127:13 134:21 135:1 tendered 81:23 taking 54:10 68:20 77:7 80:22 121:19 talk 28:10 65:13 86:20 92:6 128:11 talkativeness 55:23 56:16,20 talked 25:25 30:7 75:25 100:6,19 106:11 136:10 talking 40:18 52:19 56:24 71:9 83:15 85:24 86:22 87:21 89:6,10,11 92:24 94:16 96:10 100:3,8,12 101:25 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com term 58:19,24 74:8 terms 17:18 23:15 26:6, 10,17 30:22 48:20 90:11 93:17 98:6 100:10 102:24 106:7 131:24 133:11,22 terrible 26:21 133:19 territory 32:21 test 30:8,11,15,17 37:24 42:19 43:10 44:14 47:12 104:14,21 tested 31:11 97:7,23 testified 13:9,19,24 22:5 51:17 52:13 60:2, 20 64:7,9 67:4 78:18 82:14 113:4 114:1 117:4,8 130:10 134:9 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 ·Index: testifies..unreliable testifies 117:13 thought 5:6 42:25 96:3 train 33:18 unable 86:23 testify 15:12,17 17:24 thoughts 92:6 trained 41:16 67:14 unacceptable 38:15 thousand 105:16 trainees 40:9 unaware 85:12 thousands 41:15 training 22:16,24 23:8 unclear 15:21 55:11 thrashing 128:12 36:5,8 67:22 68:5 76:2 91:4 113:12 130:25 22:25 37:11,24 82:6 116:8,9 138:8 testifying 36:4 72:23 118:13 testimony 6:12 13:3 16:11,17 21:18 36:25 37:2 38:4 41:7 59:20,25 60:9 65:7 66:9,25 67:7 68:25 76:21 77:9 78:6 82:19,21 90:14 112:13 115:23 116:12 118:21 122:23 123:4 125:23 126:18 127:3,7,21 128:22 131:16 132:20 133:1,23,24 138:1 testing 30:23 43:18 97:22,23 102:24 104:7 tests 43:25 three-drug 10:7 11:23 28:9 46:18 119:7 134:8 three-to-one 118:24 throw 47:13 97:2 throwing 96:16 tie 110:20 tied 11:21 35:16 time 7:12,18,23 8:2 19:19 40:14 41:22 46:25 73:4 75:24 77:6 78:23 84:5 89:2 109:19 123:12 128:24 textbook 23:23,25 timely 8:3 textbooks 86:18 times 45:6 57:16 67:5 theoretical 46:3 49:2 131:3 83:16 97:18 106:6 138:12 theoretically 125:15 timing 61:22 67:13 theories 34:16 35:15 tissue 83:24 46:6 68:16,18 tissues 87:18 theory 68:22 104:3 titrate 33:16 98:25 99:2 therapeutic 83:16 titrated 98:25 84:19 88:11 91:22 106:4 107:3 109:15 therapeutically 84:24 91:20 today 3:13 6:24 8:8,15 9:11, 13:19 20:7,9 119:1 told 136:7 therapy 81:17 tolerate 70:8 thing 20:19 22:10 71:18 top 57:12 64:21 104:18 74:13 84:7,19 91:3 93:11 99:19 113:25 117:17 121:16 129:8 things 8:17 30:7 35:3 41:21 42:1 61:14 63:21 74:1 92:11 93:23 129:12 thiopental 13:2 49:14, 18 50:5 90:6,14 93:10 101:2 129:15 130:6 Thomas 116:10 137:19, 20 transcript 129:12,14 transcripts 24:8 61:11 66:22 translate 44:15 transmission 86:3 trauma 102:3 113:14 treat 120:21 122:12 treatable 117:2 treating 92:22 treatment 80:24 92:22 93:9 100:11 120:20 121:2 122:9,12 trial 121:16,19 122:8,11 132:18 136:7 137:17 TRO 7:4 true 50:1 69:18 94:6,13, 16,24 98:7 100:17,22 109:10 110:9 129:5 trust 54:10 truth 21:19,20 67:12 78:7,8 8:24 13:22 15:7 16:8,9 24:16 25:21 26:23 29:15 32:17 33:10,22 38:18 39:8 54:9 55:12 58:25 59:7 63:13 65:25 66:8 69:17,19,20,23 70:1,8 76:5,8 85:2,3 87:4 89:25 101:18 111:14 138:7 undergoing 67:17 70:6 underlying 35:1 understand 5:19 9:25 35:15 41:22 77:18 109:8 132:11,24 understands 26:25 type 6:6 35:11 36:16 understood 34:15 43:25 44:1 49:15 67:17 94:14 102:10 131:1 typical 94:2 total 29:8,10 94:5 typically 52:25 81:10 93:24 94:14 underwent 14:1 116:21 United 3:4,7,8 11:12 23:18 113:15 University 23:5 81:3 unnecessary 4:23 135:14 129:16 U touching 75:7 43:19,25 unconsciousness 83:11 86:16 87:3 torturous 118:6 traditionally 29:21 13:21 14:17 15:18 17:7, 10,15,23,24 18:1 24:22 25:1,8,10,13,18,25 33:5, 20,24 39:4,6,18 40:2,3, 7,20 45:19 46:11 50:2 53:12,17,19,20 54:3,15 55:11 57:1 58:22 63:5 65:8,15 67:20 68:1 72:3 76:1 83:21 84:6,13,18 85:11 88:2 109:7 123:12 127:6,9 tubing 114:8 types 55:18 57:22 toxic 101:8 unconscious 12:7 understanding 6:19 tube 114:9 topic 65:22 totally 40:20 55:4 98:12 unpleasant 52:6,9,10 unpredictable 87:19 U.S. 120:15,24 122:21 123:2 ultimately 14:18 81:25 92:7 109:24 130:19 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com unquestionably 17:3 unreliable 67:21,23 JUAN CARLOS CHAVEZ vs. JOHN PALMER, etc., et al. Hearing, Evidentiary on 02/05/2014 untested 42:13 worked 69:2 W untreated 83:8 untrue 126:14 waited 7:3,25 unusual 127:24 waiting 7:9 unwise 42:15 71:25 wake 25:10,11 33:12 72:1 71:11 updates 22:15 upper 106:4 utilized 92:17 94:14 103:6 wanted 11:19 44:7 114:17 ward 123:13 warrant-ready 7:19 8:1 Washington 119:2 valid 19:18 water 26:12 49:5 95:6 Valle 10:6 125:17 ways 29:24 87:18 variety 24:8 55:16,18 weigh 121:17 vecuronium 63:17,22 weighing 122:13 92:17 102:8,23 103:7 126:11 127:23 128:3 134:12 weighs 53:12 weight 45:6 130:20 veins 120:23 122:4 well-deserved 124:17 venues 7:12 westerns 111:6 verified 26:25 whatsoever 31:13 versus 5:14 11:12, 71:23 96:21 104:4 116:10 120:14 129:15, 19 131:21 Veterinary 26:22 68:3 viable 122:22 vice-chair 23:5 video 67:10 violation 15:11 Virginia 119:2,8 virtually 51:23 69:21 125:16 vitae 22:11,13 79:6 volume 80:9 voluntarily 40:5 voluntary 40:6 41:13 vulnerable 120:7 working 57:20 63:12 69:5 76:3 111:16 114:6 works 28:20 32:17 34:9 58:4 100:5 117:16 world 23:8 93:13 96:7 98:2 133:19 warning 110:5 V ·Index: untested..young world's 23:23 94:8 worse 56:11 worst 88:20 would-be 85:16 wrap 42:18 writing 23:4 131:21 Y year 81:11 years 23:6,9 33:14,18 81:10 York 60:21 young 110:4 46:22 59:3 63:7 67:16 87:23 127:4 whoa 105:6 wide 44:8 widely 23:24 William 66:18 withdraw 5:5 withstood 19:18 witness's 123:14 witnessed 66:23 witnesses 16:5 123:7 137:9 word 16:8 134:19 words 17:18 52:5 53:15 69:20 87:14 110:6,22 work 35:2,3,4 42:6,12 53:10 79:11 99:25 101:4 112:13 113:19,21,22 130:4,5 136:22 Cornerstone Litigation Services, LLC 904.647.4723· · · ·www.clsjax.com