MATTHEW BRIESACHER 3/21/2014 Page 1 1 IN THE UNITED STATES DISTRICT COURT 2 WESTERN DISTRICT OF MISSOURI 3 CENTRAL DIVISION 4 5 6 7 DAVID ZINK, et al., ) 8 ) 9 Plaintiffs, ) 10 11 ) Cause No. vs. ) 2:12-CV-4209-NKL 12 13 ) GEORGE A. LOMBARDI, et al., 14 15 ) ) Defendants. ) 16 17 18 19 DEPOSITION OF MATTHEW BRIESACHER 20 Taken on behalf of the Plaintiffs 21 22 March 21, 2014 (The proceedings began at 10:15 a.m.) 23 24 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 2 1 INDEX 2 QUESTIONS BY: 3 Ms. Carlyle PAGE NO. 5 4 5 INDEX OF EXHIBITS 6 MB 7 NO. 8 1 9 PAGE MKD. Current Missouri of Corrections execution protocol. 12 3 Draft of execution protocol. 15 4 Lab correspondence. 41 5 Bid record document. 44 7 Memos from Dr. Greg Markway. 54 8 Memorandum from Mr. Dormire. 57 9 Chemical log. 64 10 11 12 13 14 15 16 17 18 19 20 21 22 23 (Whereupon the exhibits were attached to the original and 24 copies.) 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 3 1 IN THE UNITED STATES DISTRICT COURT 2 WESTERN DISTRICT OF MISSOURI 3 CENTRAL DIVISION 4 DAVID ZINK, et al., 5 ) 6 Plaintiffs, ) 7 8 ) Cause No. vs. ) 2:12-CV-4209-NKL 9 10 ) GEORGE A. LOMBARDI, et al., 11 12 ) ) ) Defendants. ) 13 14 DEPOSITION OF WITNESS, MATTHEW BRIESACHER, 15 produced, sworn, and examined on the 21st day of March, 16 2014, between the hours of ten o'clock in the forenoon and 17 three o'clock in the afternoon of that day, at Husch 18 Blackwell, 235 East High Street, Jefferson City, Missouri, 19 before SHERYL A. PAUTLER, a Notary Public and Certified 20 Court Reporter within and for the State of Missouri, in a 21 certain cause now pending before the United States District 22 Court, Western District of Missouri, Central Division 23 wherein DAVID ZINK, et al., are the Plaintiffs, and GEORGE 24 A. LOMBARDI, et al., are the Defendants. 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 4 1 A P P E A R A N C E S 2 For the Plaintiffs: 3 Ms. Elizabeth Unger Carlyle 4 Elizabeth Carlyle Law Office 5 P.O. Box 30418 6 Kansas City, Missouri 7 816-525-6540 8 Elizabeth@carlyle-law.com 64112 9 10 For the Defendants: 11 Mr. David Hansen 12 Ms. Susan D. Boresi 13 Mr. Michael Spillane 14 Missouri Attorney General's Office 15 207 West High Street 16 Jefferson City, Missouri 17 573-751-4418 18 David.hansen@ago.mo.gov 65102 19 20 The Court Reporter: 21 Ms. Sheryl Pautler 22 Midwest Litigation Services 23 711 North Eleventh Street 24 St. Louis, Missouri 25 314-644-2191 www.midwestlitigation.com 63101 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 5 1 IT IS HEREBY STIPULATED AND AGREED, by and 2 between counsel for Plaintiffs and counsel for Defendants, 3 that the deposition of MATTHEW BRIESACHER may be taken in 4 shorthand by Sheryl A. Pautler, a notary public and 5 shorthand reporter, and afterwards transcribed into 6 typewriting; and the signature of the witness is expressly 7 reserved. 8 * * * * * 9 MATTHEW BRIESACHER, 10 of lawful age, being produced, sworn and examined on 11 behalf of the Plaintiffs, deposes and says: 12 13 [EXAMINATION] QUESTIONS BY MS. CARLYLE: 14 Q. Would you tell us your name, please. 15 A. Matt Briesacher. 16 Q. And have you had your deposition taken before? 17 A. No. 18 Q. But you've probably taken a few, true? 19 A. I have. 20 Q. Well, I'm still going to say to you what I say 21 to everybody whose deposition I'm in. 22 trying to do is ask you questions that make sense. 23 don't understand the question, please tell me and I'll try 24 to ask it better. 25 to assume that you understand it. www.midwestlitigation.com Which is what I'm If you And if you don't do that, then I'm going MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 6 1 Okay. 2 3 A. How are you employed, Mr. Briesacher? I'm the deputy general counsel for the Missouri Department of Corrections. 4 Q. And who's the general counsel? 5 A. Rick Williams. 6 Q. Okay. 7 How long have you been the deputy general counsel? 8 A. About four weeks. 9 Q. And before that, what were you? 10 A. I was the general counsel for the Missouri 11 Department of Corrections. 12 13 Q. Okay. Then let me just ask you, what's Rick Williams' full name? 14 A. It's Richard Williams. 15 Q. And so you're now his deputy, but before -- up 16 until four weeks ago, you were the general counsel? 17 A. Correct. 18 Q. And how long were you the general counsel? 19 A. Approximately a year. 20 Q. And what did you do before then? 21 A. I was an attorney for the Missouri Department 22 of Revenue. 23 Q. And when did you start doing that? 24 A. I was with the Department of Revenue for about 25 a year. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 7 1 Q. Okay. So what year are we in now? 2 A. 2014. So in about March of about 2013, give 3 or take, I went from Revenue to the Department of 4 Corrections. 5 Q. Okay. 6 A. In 2012, January I think, I went -- is when I 7 started at the Missouri Department of Revenue. 8 Q. And before then? 9 A. I worked as legal counsel for the Missouri 10 11 Department of Corrections for three years. Q. Okay. So you were legal counsel for the 12 Missouri Department of Corrections. 13 between that and general counsel? 14 A. What's the difference The -- as it was constituted when I was 15 general counsel, there are three attorneys who work 16 in-house for the Department of Corrections. 17 is the general counsel and legal counsel is the two other 18 attorneys. 19 Q. 20 21 22 23 24 25 Okay. The supervisor So you started being the legal counsel at the Department of Corrections in 2009 when? A. I think that's either January -- I think it was 2009 -- or 2010 maybe. Q. Okay. And so before you were legal counsel for the Department of Corrections, what did you do? A. www.midwestlitigation.com I worked at Missouri Attorney General's MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 8 1 Office. 2 Q. And how long did you do that? 3 A. About eight years. 4 Q. Okay. 5 A. I was in law school. 6 Q. Where did you go to law school? 7 A. Washington University in St. Louis. 8 Q. And you graduated in what year? 9 A. 2002. 10 Q. And where did you do your undergraduate work? 11 A. Eastern Illinois University. 12 Q. And when did you graduate there? 13 A. 1999. 14 Q. Okay. 15 A. 3/31/77. 16 Q. And your Social Security number? 17 A. I'm not going to answer that question. 18 Q. It's not privileged and I'd ask that you 19 answer it. 20 21 I started in 2002. And before 2002, what did you do? What's your date of birth? MR. HANSEN: We're going to move for that portion to be confidential. 22 MS. CARLYLE: Sure. You can designate it as 23 confidential if you want to. 24 Western District of Missouri require that when any 25 deposition is filed or -- publically that Social Security www.midwestlitigation.com But the local rules of the MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 9 1 numbers be redacted. 2 3 MR. HANSEN: MS. CARLYLE: We're also going to Okay. So what's being marked as confidential -- because we've run into this problem before. 6 7 That's fine. mark this portion as confidential. 4 5 That protects you. MR. HANSEN: Right. We're going to be very clear this time. 8 MS. CARLYLE: 9 Social Security number and the answer. 10 MR. HANSEN: 11 Q. 12 A. 13 Is the question what's your That is correct. (By Ms. Carlyle) Okay. What is the answer? I'm not answering the question. MS. CARLYLE: Okay. I'm not really prepared 14 to call the judge about that question, but we'll deal with 15 that later. 16 MR. HANSEN: 17 18 Q. That's fine. (By Ms. Carlyle) Have you ever been convicted of a crime? 19 A. No, I have not. 20 Q. Have you ever been sued? 21 A. Yes, I have. 22 Q. Can you tell us what you've been sued for and A. To my recollection, I've been sued four times. 23 24 25 when? One time was an action in replevin for my duties related to www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 10 1 being counsel with the Department of Corrections. 2 action was for violations of the ADA in relation to my work 3 at the Department of Corrections. 4 for violation of the constitutional rights, again 5 associated with my role with the Department of Corrections. 6 And then this lawsuit. 7 8 Q. Okay. I'm sorry. One There's another action I got a little behind. The first one was replevin? 9 A. Yes. 10 Q. And when was that? 11 A. I don't recall. 13 Q. And where was that filed at? 14 A. I forget the county, but it was in Farmington. 15 Q. St. Francois County? 16 A. I believe that's right. 17 Q. Maybe they say St. Francis. 12 It was while I was legal counsel. 18 Okay. 19 capacity or individual or both? 20 Who knows. And were you sued in your official A. I think -- I think it was official capacity 22 Q. Okay. 23 A. I was serving as the litigation coordinator 21 only. And what was that about, replevin? 24 for the department. 25 received and he was suing to get the mail returned to him. www.midwestlitigation.com I reviewed some mail an offender MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 11 1 Q. Okay. 2 A. It was dismissed in my favor. 3 Q. Okay. 4 5 6 And what was the outcome? And then the second one -- second one was the one I missed completely. A. against me. What was the second one? Allegations of -- it is a pro se action So there are numerous counts. 7 Q. Okay. 8 A. I don't know that I could state all of the 9 10 counts, but ADA seems to be the major thrust of the plaintiff's concerns. 11 Q. Is that still pending? 12 A. Yes, it is. 13 Q. And where is it pending? 14 A. Eastern District of Missouri. 15 Q. Can you tell me the plaintiff's name? 16 A. The plaintiff is -- I forget how it's 17 captioned. 18 or next of friend for offender Eldon Flaherty. 19 20 Q. Christopher Cross. Okay. And he's either as guardian And who was the plaintiff in the replevin case? 21 A. I don't recall. 22 Q. Do you have any -- can you give me -- you said 23 it was when you were legal counsel. 24 range for that one? 25 A. www.midwestlitigation.com Can we get a year Sometime between 2010 and 2012. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 12 1 2 Q. Okay. Then the third one you said was some sort of constitutional rights? 3 A. Correct. 4 Q. Tell me a little more about that. 5 A. Reginald Clemmonds is suing me claiming I 6 violated his First Amendment rights. 7 Q. And where is that one pending? 8 A. I -- I don't know if any portion of the case 9 10 is still pending. I've been dismissed. I think it was pending in the Eastern District. 11 Q. Eastern District of Missouri. 12 A. Federal court. 13 Q. Okay. A. Correct. 14 15 Okay. And then the -- then this case is the fourth? 16 MS. CARLYLE: Okay. So let me show you what's 17 been marked as Exhibit 1 for the purposes of this 18 deposition. 19 deposition, we're going to refer to them as MB. 20 will be MB1. 21 out what deposition they were exhibits to. 22 23 24 25 I spoke with the court reporter before this So this So we'll have a fighting chance of figuring (Whereupon Exhibit No. 1 was marked for identification.) Q. (By Ms. Carlyle) marking as MB1. www.midwestlitigation.com I'll show you what we're Can you tell me what that is? MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 13 1 2 A. Missouri Department of Corrections. 3 Q. 4 5 Okay. MR. HANSEN: Just a second. MS. CARLYLE: 7 Q. Sure. (By Ms. Carlyle) Did you have any involvement in drafting that document? 9 A. Yes. 10 Q. Tell me what you did. 11 A. I drafted that document. 12 Q. Okay. 13 I want to take a look at it. 6 8 This is the current execution protocol for the And was that the first execution protocol that you drafted? 14 A. No. 15 Q. What other execution protocols have you A. There were -- well, I don't -- when you say 16 17 18 19 20 drafted? drafted, I had input in modifying two previous protocols. Q. Okay. And would those have been two of the previous propofol protocols? 21 A. That is correct. 22 Q. Okay. 23 A. I can give you this one back. 24 Q. Okay. 25 So to -- let's see here. With respect to Paragraph B1 of this protocol, how did you determine that 5 grams of www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 14 1 pentobarbital was the amount to put in there? 2 A. I reviewed protocols from other states and 3 that amount seemed consistent. 4 it seemed to be a standard amount for this purpose. 5 6 Q. Okay. And based on my research, Other than reviewing protocols from other states, what research did you do? 7 A. I did a case law review of those states and 8 whether or not their protocols had been accepted by the 9 courts. And in that research, I was able to review some 10 filings, exhibits to filings discussing this protocol -- or 11 this amount of pentobarbital. 12 13 Q. Okay. Did you actually speak to anyone from other states or did you just read documents? 14 A. Regarding the amount of pentobarbital to use? 15 Q. Well, actually let me broaden it a little. 16 17 18 Regarding the developing of this protocol, period. A. I made calls to other states and asked them for copies of their protocols. 19 Q. Okay. 20 A. I know I reached out to Ohio. What states were those? I reached out 21 to Texas, Oklahoma. 22 to find through other methods Kentucky, Washington. 23 have looked or talked to Arizona, Florida, Georgia, 24 Virginia to the best of my recollection. 25 Q. www.midwestlitigation.com I don't recall if I called or was able I may And did all of those states have pentobarbital MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 15 1 protocols? 2 A. No. 3 Q. Do you remember which ones did and which ones 5 A. Not as we sit here. 6 Q. Okay. 4 7 didn't? How did it happen that you were the -- were the drafter of this protocol? 8 A. By the nature of my position. 9 Q. Okay. 10 A. Yes. 11 Q. And who was that? 12 A. Director Lombardi. 13 Did someone instruct you to do that? MS. CARLYLE: Okay. This is actually going to 14 be -- let's make it Exhibit 3, even though we haven't had a 15 2 yet. 16 17 (Whereupon Exhibit No. 3 was marked for identification.) 18 MR. HANSEN: 19 MS. CARLYLE: 20 MR. HANSEN: 21 MS. CARLYLE: 22 This is MB3? MB3. Can I see that, please? Sure. And you have a copy there too. 23 MR. HANSEN: I'll let you look at the actual 24 one. So it's on the record, what's the Bates stamp number 25 down at the bottom of that? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 16 1 MS. CARLYLE: The Bates stamp number is Pages 2 2246 to 2249. 3 that I show was prepared on January 9, I think, and I 4 received it on January 10. 5 6 7 8 9 10 11 That is the Bates stamped number from a disc MR. HANSEN: Q. Thank you. (By Ms. Carlyle) And can you tell us what Exhibit MB3 is? A. This is a draft that I prepared for an execution protocol. Q. Has it ever been enacted or designated as the execution protocol? 12 A. No. 13 Q. What are the differences between Exhibit 3 and 14 Exhibit 1? 15 A. Paragraph A went from three -- or four -- in 16 the draft, it was four separate paragraphs. 17 October 18 protocol, it was combined to a single paragraph 18 and the language was changed. 19 differently. And it was formated 20 Q. I need one of them. 21 A. It was formatted differently. 22 23 In the Okay. Paragraph B1(a) in the draft was removed. Q. Okay. I'm sorry. Was removed -- I'm sorry. 24 Was removed -- well, let me ask this question: 25 Exhibit 3 predate Exhibit 1 in your drafting? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Does Did you Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 17 1 draft Exhibit 3 first? 2 A. Yes. 3 Q. Okay. 4 So Exhibit 3 was a draft, then Exhibit 1 was what was ultimately adopted? 5 A. Correct. 6 Q. Okay. Yeah. Now it makes sense to me. 7 you say Exhibit B1(a) was removed, what else happened 8 between Exhibit 3 and Exhibit 1? 9 A. Well, all of Paragraph B was renumbered. 10 you want me to identify the renumbering or is that 11 sufficient? 12 Q. That's sufficient. 13 A. Paragraph B1 -- well, because this was a 14 When Do draft, the outlining wasn't perfect. 15 Q. Okay. 16 A. But on Page 2, the paragraph marked with a 17 small B was deleted. 18 was deleted, the paragraph with a capital B was deleted, 19 the paragraph with the capital C was deleted. 20 Q. The paragraph marked with a large A And can you tell us, please, what that -- 21 those paragraphs under little B were; generally what the 22 substance of them was? 23 specific than that. 24 method of execution or an alternative drug setup? 25 A. www.midwestlitigation.com I mean I can be a little more Did they provide for an alternative Yes. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 18 1 Q. Okay. 2 A. It would have been to use the drug midazolam 3 in combination with the drug hydromorphone. 4 5 And what was the alternative? Q. Okay. When you were directed to draft -- were you also directed to draft Exhibit 3? 6 A. It was part of the same project. 7 Q. It was part of the same project. 8 9 Were you directed to provide those two alternatives? 10 A. No. 11 Q. Okay. 12 Okay. So who decided that there would only be one alternative? 13 A. I did. 14 Q. And then you -- I presume you made that 15 recommendation to the director? 16 A. Correct. 17 Q. Why did you decide that? 18 A. We were able to obtain pentobarbital. 19 Q. When did you draft Exhibit 3? 20 A. Other than saying that it was prior to 21 October 18 of 2013, I can say it was in that time frame. 22 don't know that I could give you a specific date. 23 24 25 Q. I'm not sure what in that time frame means A. Prior to that. I though. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 19 1 Q. But I mean six months prior, a year prior? 2 A. No. It would have been probably -- when the 3 draft was actually created, probably after the governor's 4 announcement to return -- that the State of Missouri would 5 be returning to propofol and October 18, sometime in that 6 time frame. 7 announcement, may have been a few days after. 8 9 10 11 12 13 14 It may have been a few days before that Q. So you had this project before that announcement? A. Yes. I had the project to review the protocol, yes. Q. So I'm sorry. What was the project exactly? What were you assigned to do? A. I was assigned to make sure that the 15 department had an execution protocol that it could carry 16 out its statutory obligations. 17 18 Q. So was -- were you involved in a decision that the propofol protocol probably wouldn't do that? 19 20 MR. HANSEN: question. It's vague and ambiguous. 21 22 23 Object to the form of the MS. CARLYLE: It is vague and ambiguous. Let me try saying it again. Q. (By Ms. Carlyle) If I understood you -- if I 24 understand you, you said that your assignment was to make 25 sure that the department had a protocol that they would www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 20 1 carry out? 2 A. Correct. 3 Q. Was -- did you have any concern that the 4 protocol -- there was a protocol in effect at the time you 5 got the assignment? 6 A. I mean -- I'm sorry if I've mischaracterized 7 it. Just as part of my duties -- my assignment may be 8 misleading. 9 make sure the department has an execution protocol so it Part of my duties as general counsel is to 10 can carry out its statutory requirements. 11 it as I was given a directive. 12 mislead you. 13 14 Q. Okay. You keep using And I didn't mean to So what you're saying is that at all times, that was part of your job? 15 A. It was part of my job. 16 Q. Is it still part of your job? 17 A. I still have some involvement in the execution 18 process. 19 what my role is regarding drafting protocols. 20 I don't know. Q. It has not been clarified to me So when did you decide that you needed to -- 21 to draft Exhibit 3 -- I guess what I'm saying is, you might 22 have started on Exhibit 3 before the governor made his 23 announcement; is that correct? 24 A. That is correct. 25 Q. Did you know the governor was going to make www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 21 1 his announcement ahead of time and that's why you started 2 or did you start for another reason? 3 A. I started for another reason. 4 Q. And what was that? 5 A. Based on information that I was seeing and 6 hearing, I wasn't sure that propofol would have remained -- 7 that we would have been able to get any more at that point. 8 So I began looking at alternatives for new chemicals, new 9 sources, that kind of thing. 10 Q. Okay. What was your involvement -- now, one 11 difference between both Exhibit 1 -- well, one difference 12 between Exhibit 1 and the protocols that were adopted prior 13 to it is that it includes the pharmacist as a member of the 14 execution team, correct? 15 A. Correct. 16 Q. The pharmacist wasn't included as a member -- 17 there was no pharmacist included as a member of the 18 propofol protocol execution team, was there? 19 A. Not to my knowledge. 20 Q. If you're not sure, I can pull it up. 21 A. You asked if there was a pharmacist that was a 22 member of the execution team. 23 Q. Yes. 24 A. I'm not sure that I know all of the members of 25 the execution team while the propofol protocol was pending, www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 22 1 if you're asking me about the language of the protocol. 2 Q. Well, the protocol -- maybe I'm unclear. Are 3 there members of the execution team that are not listed in 4 the protocol? 5 6 A. The protocol describes who may be a member of the execution team. 7 Q. Right. 8 A. The protocol does not identify the members of 9 the execution team. 10 Q. It identifies them by position however? 11 A. Yes. 12 Q. So although it doesn't say the physician Dr. X I'm with you now. 13 is a member of the execution team, the protocol describes 14 the functions of the people who are members of the 15 execution team? 16 A. Correct. 17 Q. It does not, for example, include a 18 manufacturer who sells chemicals to a pharmacist? 19 A. Which protocol are you discussing? 20 Q. Any of them. 21 A. I believe the current protocol would cover the 22 supplier. 23 Q. Do you recall this protocol which is Exhibit 1 24 which you have -- oh, I see. 25 Okay. www.midwestlitigation.com Including individuals. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Yeah. Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 23 1 So you believe that the person who -- the firm 2 that sells chemicals to the compounding pharmacist under 3 this protocol is a member of the execution team? 4 5 A. I believe they are covered by the protocol, yes. 6 MS. CARLYLE: Okay. But the -- well, let me 7 pull up that propofol protocol. 8 look at the right page and number. 9 THE WITNESS: It will be clearer if I Actually, while you're doing 10 that, do you mind if I step out and ask my attorney a 11 question? 12 MS. CARLYLE: 13 your attorney a question. 14 15 Sure. You can step out and ask (Whereupon there was a short break.) Q. (By Ms. Carlyle) Mr. Briesacher, what I'm 16 going to show you is a document which has been filed as 17 Exhibit 4 to Document 73 in this current lawsuit filed 18 April 10 of 2013. 19 going to show you Page 1. 20 21 And it's a three-page document and I'm MR. HANSEN: So the record is clear, you're actually showing him your laptop computer. 22 MS. CARLYLE: 23 MR. HANSEN: That's true. Which has the electronic document 24 that you have identified as Exhibit 4 attached to Document 25 72 -- doesn't that say? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 24 1 2 MS. CARLYLE: 5 But hang on. 3 4 I believe it says 73. MR. HANSEN: Q. Yes, that's right. (By Ms. Carlyle) I know that I've now made the print smaller so you could see the whole page. 6 A. Okay. 7 Q. But let me ask you -- and I can make it bigger 8 9 10 if you want me to do that. A. No. If you can be patient with me, I think I can read it. 11 Q. Okay. 12 A. Okay. 13 Q. Okay. 14 15 So first of all, I mean can we agree that's the May 2012 protocol? A. 16 Do you want to see the end? I will trust your assertion. MR. HANSEN: Well, let's scroll through it. 17 believe that to be true, but let's scroll down. 18 it's three pages. 19 A. 20 Q. It says Let's look at the date on the bottom. Yes. It's May 15, 2012. (By Ms. Carlyle) Okay. And who are the 21 execution team members by function in that protocol? 22 you see that or do you want me to make it larger? 23 24 25 A. No. I I can see that. Can By function, we're talking about those described in Paragraph A? Q. www.midwestlitigation.com Right. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 25 1 A. The team consists of contracted medical 2 personnel and department employees. 3 pharmacist prepares the chemicals used during the lethal 4 injection. 5 technician inserts intravenous lines, monitors the prisoner 6 and supervises the injection of lethal chemicals by 7 non-medical members of the execution team and two 8 department employees inject the chemicals into the 9 prisoner. 10 Q. A physician, nurse or A physician, nurse or emergency medical Okay. Now, the execution team members in 11 Exhibit 1, Exhibit MB1, to those descriptions is added the 12 last sentence of Paragraph A, correct? 13 A. I'm not sure I would completely agree with 15 Q. Okay. 16 A. I don't think the first sentence on Exhibit 1 14 that. What do you disagree with? 17 encompasses everyone that is described in Paragraph A of 18 the May protocol. 19 Q. Okay. 20 A. So I think the second sentence encompasses 21 22 that -- those -- some of those people, individuals. Q. But the second sentence in Exhibit A -- 23 Paragraph A of Exhibit 1 also encompasses some people who 24 simply aren't included in the 2012 document, correct? 25 A. www.midwestlitigation.com It could, yes. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 26 1 2 Q. Specifically, it doesn't -- the 2012 document makes no mention of anyone who prescribes drugs, does it? 3 A. If you don't mind. 4 Q. I don't mind at all. 5 6 MR. HANSEN: the same as Exhibit 3, correct? 7 8 11 12 THE WITNESS: That portion appears to be the MS. CARLYLE: You're right. same. 9 10 To make it easier, it's actually A. Okay. I'm not sure that a person who was writing a prescription would not have been covered by the May 2012. Q. (By Ms. Carlyle) I'm not asking you that. 13 asking whether there's any mention of anyone writing a 14 prescription? 15 A. Direct mention? 16 Q. Yes. 17 A. No. 18 19 I'm There's no use of the word "prescription" in Paragraph A. Q. Okay. There's no mention of anyone who 20 compounds chemicals, is there, in Paragraph A of the 2012 21 protocol and in your previous draft Exhibit 3? 22 A. I think I would disagree with that. 23 Q. There's a -- the word "compound" occurs in 24 that paragraph? 25 www.midwestlitigation.com MR. HANSEN: That wasn't your question. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 27 1 2 3 4 5 6 7 8 9 MS. CARLYLE: Okay. Then I'm clarifying my question. Q. (By Ms. Carlyle) Does the word "compound" appear in that paragraph? A. In the May 2012 protocol, the word "compound" it not located in Paragraph A. Q. Okay. Is there any mention in Paragraph A of the May 2012 protocol of anyone who supplies chemicals? A. Let me make sure I understand your question. 10 Is the phrase "supplies chemicals" used in the May 2012 11 protocol? 12 Q. Well, that's my first question. 13 A. No, I don't recall seeing that language. 14 Q. Do you read the May 2012 chemical [sic] as 15 covering someone who supplied chemicals, but did not 16 prepare them for use in execution? 17 A. I believe that it might. 18 Q. Okay. Are you aware that prior to the 19 issuance of Exhibit 1, the Attorney General's Office made 20 no attempt to hide the identity of anyone who supplied 21 chemicals? 22 A. I have no knowledge of that. 23 Q. Okay. 24 So you weren't consulted before the identity of the suppliers of propofol were disclosed? 25 www.midwestlitigation.com MR. HANSEN: I'm going to object to MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 28 1 attorney/client privilege of conversations that might have 2 existed between the client and the lawyers. 3 MS. CARLYLE: 4 any conversations. 5 Q. 6 Were you aware that the suppliers of propofol were disclosed? A. Yes. 8 Q. Okay. Were you involved in the decision about whether or not to disclose them? 10 11 I'm not asking him for I'm asking was he aware -- okay. (By Ms. Carlyle) 7 9 Okay. A. No. And if I may clarify. In May 2012, I was not working for the Department of Corrections. 12 Q. Absolutely. And I had forgotten that. So who 13 was the general counsel of the Department of Corrections in 14 2012? 15 16 A. Hansen. 17 18 It's my understanding that it was David MS. CARLYLE: Okay. Mr. Hansen, we'll take your deposition another day. 19 MR. HANSEN: 20 MS. CARLYLE: Not my decision. That's true. 21 Q. 22 drafted Exhibit 1. 23 direct references to individuals who -- and I reading from 24 Exhibit 1 now -- prescribe, compound, prepare or otherwise 25 supply the chemicals for use in the lethal injection www.midwestlitigation.com (By Ms. Carlyle) Okay. But in any event, you And in Exhibit 1, Paragraph A, you made MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 29 1 procedure? 2 A. Correct. 3 Q. Were you directed to do that specifically by 4 anyone in the Department of Corrections? 5 A. No. 6 Q. Who under Missouri law decides who's going to 7 be on the execution team? 8 9 A. The director of the Missouri Department of Corrections. 10 Q. Okay. I'm going to ask you some questions now 11 about a pharmacy which has been designated by the 12 department of -- by the counsel for the defendants in this 13 case as M6. Do you know what concern I'm talking about? 14 15 MR. HANSEN: question. It's vague and ambiguous when you say "concern." 16 MS. CARLYLE: 17 MR. HANSEN: 18 A. 19 Q. Object to the form of the I mean the business. Okay. I'm familiar with M6. (By Ms. Carlyle) Okay. And M6 was the 20 pharmacy that supplied the execution drugs for Joseph 21 Franklin, Alan Nicklasson and Herbert Smulls execution, 22 correct? 23 A. Correct. 24 Q. Just making sure we're talking about the same 25 pharmacy here. www.midwestlitigation.com Were you the person who located or MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 30 1 2 recruited that source of the drugs? A. My hesitation is located or recruited implies 3 kind of two different things. 4 that process. So, yes, I participated in 5 Q. Okay. 6 A. The division director David Dormire. 7 Q. Well, did you provide the name to Mr. Dormire? 8 A. Yes. 9 Q. Where'd you get it? Who else participated in that process? 10 MR. HANSEN: 11 MS. CARLYLE: 12 MR. HANSEN: Objection. What's the objection? The objection is that information 13 is specifically the information that the Lombardi -- it 14 will lead to revealing the identity of a past member of the 15 execution team. 16 17 MS. CARLYLE: I'm asking him who it was. I'm asking him how he figured out to call this pharmacy. 18 MR. HANSEN: And by determining who he 19 contacted, who he talked about it with, that is information 20 that would directly lead to determining the identity of a 21 former member of the execution team. 22 Lombardi decision and under -- 23 MS. CARLYLE: 24 MR. HANSEN: 25 MS. CARLYLE: www.midwestlitigation.com And under the Well -Let me finish. Sure. You finish and then I'll MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 31 1 finish. 2 3 MR. HANSEN: Under 546.720 and under the State Secrets privilege, that information is protected. 4 MS. CARLYLE: Let me just make clear for the 5 record that the Lombardi decision does not protect 6 anything. 7 have granted a Writ of Mandamus because the case should 8 have been dismissed. 9 the privilege issues in this case are complex, but we do 10 The Lombardi decision held that the Court should The Lombardi decision says expressly not address them. 11 The district court in this case has already 12 held that there is no privilege and that the State Secrets 13 Act does noted protect this information. 14 never been disturbed by any court. 15 enforceable at this point. 16 that has been made about privilege in this case. 17 That decision has So it may or may not be But that is the only decision That's not to say that you shouldn't go ahead 18 and assert the privilege. 19 privileged is the identity. 20 point where we cannot ask this witness about the process 21 that led to the identification of M6 because it might 22 identify M6, then I think it's clear that there's been 23 improper inference with the discovery process. 24 25 MR. HANSEN: concern is. www.midwestlitigation.com But let me also add that what is I think when we get to the Well, that's exactly what our Let me make clear for the record exactly -MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 32 1 maybe a little more clear what the objection is. Pursuant 2 to the Lombardi decisions, there are -- the Lombardi 3 decision, there are no claims in this case to which this 4 information to claims in this case is relevant. 5 Plaintiffs have not stated claims, even in their second 6 amended complaint, on which relief can be granted. 7 information, as the Lombardi court determined, is protected 8 from disclosure including in discovery. Because So that 9 Your question seeking information about that 10 would lead to the members of the Missouri execution team. 11 That information is not relevant based on your second 12 amended complaint. 13 protected from disclosure, again under the Lombardi 14 decision, under section 546.702 of the Missouri statutes 15 and under the State Secrets provision. 16 17 I know we're going to continue to get into this -- some of these similar questions. 18 19 It's confidential, privileged and MS. CARLYLE: Let's see if we can get the judge on the phone. 20 MR. HANSEN: 21 much of this information. 22 MS. CARLYLE: I will have similar objections to Okay. Let's see if you we can 23 get the judge on the phone. 24 tell me who M6 is. 25 through to determine -- if I wanted a compounding www.midwestlitigation.com I'm frankly not asking him to I'm asking him what process he went MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 33 1 pharmacist, there's some ways I can do it. 2 how he did it. 3 entitled whether or not he's supposed to identify M6, I'm 4 entitled to know for the purposes of this lawsuit how he 5 came up with a name. 6 I don't know The only thing I can say is I think I'm MR. HANSEN: And we -- the attorneys in this 7 case have demonstrated by the sheer disclosure of a form of 8 a document, that you will take that information, you will 9 narrow down who that pharmacy was or is or attempt to and 10 determine what the range of possibilities -- 11 12 MS. CARLYLE: Oh, no question about it. We're going to use whatever information you give us. 13 MR. HANSEN: -- what the range of 14 possibilities are. 15 that could reveal those identities is protected. 16 our position that based on Lombardi and based on your 17 second amended complaint, there should be no disclosure of 18 that information in that lawsuit. 19 So the information that is related -- MS. CARLYLE: And it's Of course the relevance issue in 20 discovery is far different than the relevance issue, you 21 know, in connection with evidentiary privileges as you 22 know. 23 motion to dismiss the second amended complaint the Lombardi 24 court didn't purport to do that because it hadn't been 25 filed yet when the Lombardi court made its ruling. Moreover, there has been no ruling on the current www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 34 1 So there is no ruling that there is no issue 2 in the second amended complaint to which this information 3 is not relevant because there has been no ruling on the 4 second amended complaint by anyone, including the Lombardi 5 court. 6 But let's see if we can get the judge on the 7 phone. We may end up just adjourning this deposition. 8 Because I'm not sure we're going to get very far if that's 9 the position you're going to take. 10 MR. HANSEN: I agree. And I frankly think 11 that we need to probably present that issue to the Court in 12 a fuller context than a conference call. 13 proceed. 14 MS. CARLYLE: But we can Let's see what we can do. I 15 guess what I would say again for the record is that in our 16 recent telephone conference with the judge, she encouraged 17 us to come to her when we had problems. 18 it at least, was concerned that plaintiffs had not been 19 proactive enough in doing that. 20 like to see what she has to say at this point. 21 MR. HANSEN: And as I perceived So with that in mind, I'd I understand and agree 22 completely. 23 think this issue is significant enough and is going to be 24 repeated enough that it may take more than just an argument 25 over the phone. www.midwestlitigation.com What I'm just saying is I don't think -- I But I think that should be the first step. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 35 1 MS. CARLYLE: 2 (Whereupon there was a conference call with 3 We can go off. Judge Philips.) 4 MS. CARLYLE: We're back on the record. Let 5 me attempt to summarize what we just did for the record. 6 And then of course, Mr. Hansen, you can correct my summary 7 if I have it wrong. 8 record, we contacted Judge Philips and she stated in 9 response to the state's -- the defendant's objection to my During the time we were off the 10 questioning Mr. Briesacher about the method by which he 11 located or identified the pharmacy M6, she ruled that that 12 issue was not relevant to the claims before the Court and 13 that I could therefore not ask those questions. 14 fair? 15 MR. HANSEN: 16 MS. CARLYLE: Is that I think that's accurate. Okay. So just for the record, I 17 want to say that while I understand that's the Court's 18 ruling, by not asking those questions again, I'm not 19 intending to say that I will never again attempt to bring 20 that up with the Court in attempt to raise that issue again 21 for other reasons and on other bases and in other context. 22 But for the purposes of this deposition, I will not ask 23 about that area. 24 25 Q. (By Ms. Carlyle) Let me just ask you, are you willing to affirm or deny that the -- that M6 refers to the www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 36 1 hypothecary shop in Tulsa, Oklahoma? 2 3 4 MR. HANSEN: Objection to the question. Again, the very same objection I made earlier. Q. (By Ms. Carlyle) Okay. But if I'm not 5 mistaken, before we started this objection process, you 6 indicated that you did provide the name of M6 to Mr. 7 Dormire; is that correct? 8 A. Yes. 9 Q. Okay. Did you provide Mr. Dormire with 10 information concerning the bidding process for supplying 11 the chemicals? 12 A. Yes. 13 Q. Mr. Dormire has indicated that he was told he 14 needed to make contact with three pharmacies in order to 15 obtain a bid. 16 17 18 A. Did that information come from you? I don't believe I can answer that question. think it would be attorney/client communication. Q. Did Mr. Dormire tell you he planned to do that 19 by contacting the name you provided and calling two other 20 pharmacies at random from the phone book? 21 MR. HANSEN: I'm going to object to the form 22 of the question in that it is a compound -- compound 23 question. 24 25 I Answer to the degree you can unless it would reveal an attorney/client communication or legal advice. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 37 1 2 3 4 A. I do not recall if we discussed the -- his actions before or after he took them. Q. (By Ms. Carlyle) Do you know whether pharmacy M6 has provided execution drugs to other states? 5 MR. HANSEN: I'm going to object to the form 6 of the question -- excuse me -- not the form of the 7 question. 8 objected to the question about whether or not he spoke to 9 the pharmacy or who he spoke to. I'm going to object again for the same reason I And I don't know, if I 10 can just refer to my initial objection, would that be 11 sufficient for you? 12 13 14 MS. CARLYLE: Q. Yes. (By Ms. Carlyle) Did you do any research or make any inquiry concerning the reliability of M6? 15 A. Yes. 16 Q. Did you inspect M6, the pharmacy M6, before 17 obtaining -- 18 19 MR. HANSEN: same -- my original objection. 20 21 Again, I'm going to object the MS. CARLYLE: You're objecting to the yes or no question did you visit the place? 22 MR. HANSEN: 23 objection. 24 careful about -- 25 www.midwestlitigation.com Well, I'll withdraw the Just bear in mind that we have to be very MS. CARLYLE: I understand it. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 38 1 MR. HANSEN: Just let me -- we have to be very 2 careful about what we allow to answer. 3 if that answer would reveal the identity, it would be very 4 difficult to take it back. 5 make this on the record. 6 Protective Order 112. 7 or 14 days -- to designate as confidential things that 8 weren't designated at the time of the deposition. 9 may be things we would designate confidential after this 10 Because certainly Although, under -- I do want to I think you're aware of the But it does give parties -- is it 10 deposition. 11 MS. CARLYLE: 12 MR. HANSEN: Okay. We want to be very careful. 13 may err on the side of objecting prematurely. 14 ahead. 15 So there Q. (By Ms. Carlyle) So I But go So the question to which I 16 think the objection has been withdrawn is did you inspect 17 the pharmacy? 18 A. Did I go to visit the pharmacy? 19 Q. Yes. 20 A. No. 21 Q. To your knowledge, did anyone from DOC visit 22 the pharmacy before obtaining drugs from them? 23 A. Not -- not to my knowledge. 24 Q. Okay. 25 A. No. www.midwestlitigation.com Do you know Jake Jackson? MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 39 1 Q. Do you -- if I tell you he's the general 2 counsel of the hypothecary shop in Tulsa, Oklahoma do you 3 know him based on that description? 4 MR. HANSEN: I'm going to object again for my 5 original objection. 6 other pharmacies allow you to narrow the scope down. 7 we're going to assert the original objection because it 8 will reveal potentially identities to current or former. 9 Because again, any questions about any MS. CARLYLE: I'm just asking him if he knows 10 the general counsel of the hypothecary shop in Tulsa, 11 Oklahoma. 12 MR. HANSEN: 13 Q. And And I've asserted the objection. (By Ms. Carlyle) Okay. Did you make inquiry 14 as to any professional complaints filed against pharmacy 15 M6? 16 A. Yes. 17 Q. Were there any? 18 A. I can't -- 19 20 MR. HANSEN: that question -- 21 MS. CARLYLE: 22 MR. HANSEN: 23 objection. 24 Q. 25 Again, I'm going to object to Okay. -- based on my original (By Ms. Carlyle) Do you know whether pharmacy M6 ever compounded pentobarbital before supplying it to the www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 40 1 2 Missouri Department of Corrections? A. Yes, I do know whether it compounded 3 pentobarbital prior to compounding it for the Missouri 4 Department of Corrections. 5 Q. And did it? 6 A. I can't answer that question. 7 MS. CARLYLE: Let me just state for the record 8 that if -- but for the judge's ruling, I would have asked 9 Mr. Briesacher to describe the history of his dealings with 10 M6, including how he initially contacted them and all of 11 his subsequent dealings with them. 12 questions more specifically, but I'm assuming they'd be 13 subject to your current objection. 14 15 16 MR. HANSEN: I can ask those That's correct. And that's sufficient. Q. (By Ms. Carlyle) Okay. Let's turn to the -- 17 to the person who prescribes -- who writes prescriptions 18 for the pentobarbital. 19 identified? Was that a person that you 20 A. Yes. 21 Q. And are you willing to tell us what steps you 22 took to identify that person? 23 24 25 MR. HANSEN: I'm going to object based on my original objection. Q. www.midwestlitigation.com (By Ms. Carlyle) Did you investigate the MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 41 1 license of that person? 2 A. Yes. 3 Q. How did you investigate it? 4 MR. HANSEN: 5 6 Q. (By Ms. Carlyle) Let me show you what's been -- let's take a look at Exhibit 4. 7 8 Same objection. THE WITNESS: Do you mind if I take my jacket MS. CARLYLE: Not a bit. off? 9 10 MR. HANSEN: 11 (Whereupon there was an off-the-record 12 discussion.) 13 14 Off the record. (Whereupon Exhibit No. 4 was marked for identification.) 15 Q. (By Ms. Carlyle) Mr. Briesacher, I've handed 16 you what's been marked as Exhibit 4. 17 me. 18 Pages 2048, 2049, 2050 and 2051 which were included in the 19 disc provided on January 10, 2014. And I will state for the record that this is Discovery 20 21 22 Do you want to trade Can you tell me what -- first of all, are those the -- well, tell me what you have there. A. The first page is a letter dated 11/27/2013 to 23 my attention. 24 And the third and fourth page were -- sorry. 25 page is terms and conditions. www.midwestlitigation.com The second page is a summary of charges. The third And the fifth page is MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 42 1 e-mails between myself and another individual dated 2 November 27, 2013. 3 Q. And I understand based on previous objections, 4 that you're not willing to identify the person or business 5 to whom this is -- this is -- this correspondence pertains. 6 But I'll ask you, does it pertain to a laboratory? 7 A. Yes. 8 Q. And does it concern testing of chemicals for 9 lethal injection? 10 A. Yes. 11 Q. Were you the person who located or selected 12 this laboratory? 13 14 MR. HANSEN: Let's talk about this for a second. 15 MS. CARLYLE: Off the record. 16 (Whereupon there was a short break.) 17 (Whereupon the reporter read back the previous 18 question.) 19 A. 20 Q. 21 A. M6. 22 Q. M6? 23 A. Yes. 24 Q. Is there a connection between this laboratory 25 No. (By Ms. Carlyle) Who did? and M6? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 43 1 2 3 4 A. I don't know if there's a current relationship between M6 and this laboratory. Q. At the time that that you were engaged in this correspondence, was there? 5 A. Yes. 6 Q. Are you aware that Mr. Dormire paid M6 a 7 combined payment for the services of the pharmacy and the 8 laboratory services? 9 A. Yes. 10 Q. Can you tell me at the time you were 11 corresponding with the laboratory, what the connection was 12 between the two businesses? 13 A. They had a contractual relationship. 14 Q. Was laboratory testing performed on the drug 15 used to execute Michael Taylor? 16 MR. HANSEN: 17 same reasons as my initial objection. 18 MS. CARLYLE: We're going to object for the Let me just be clear. You're 19 objecting to answering the question about whether or not 20 laboratory testing was performed? 21 MR. HANSEN: 22 MS. CARLYLE: Yes. Okay. I'm going to go ahead and 23 ask the rest of these questions so we'll be clear about 24 what I would ask. 25 www.midwestlitigation.com MR. HANSEN: Sure. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 44 1 2 Q. (By Ms. Carlyle) Why have no laboratory reports been provided on any testing for Michael Taylor? 3 MR. HANSEN: 4 Q. Same objection. (By Ms. Carlyle) Was that testing performed, 5 if there was any performed, by the same laboratory or a 6 different laboratory? 7 MR. HANSEN: 8 9 10 Q. (By Ms. Carlyle) With how many laboratories does the Department of Corrections have contracts to test pentobarbital? 11 MR. HANSEN: 12 13 Same objection. Q. Same objection. (By Ms. Carlyle) Do you believe that the laboratory is a member of the execution team? 14 MR. HANSEN: I'm going to object to the form 15 of the question and vagueness. 16 execution, what time frame we're talking about. 17 18 Q. MR. HANSEN: I will object to that question based on my original objection. 21 MS. CARLYLE: 22 be back until 1:00. 23 that. 24 25 Today, is the laboratory a member of the execution team? 19 20 (By Ms. Carlyle) I'm not sure what Well, the judge says she won't We probably do need to call her about Let me ask you to pull out Exhibit 5. Do you want to mark that for us, please. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 45 1 2 (Whereupon Exhibit No. 5 was marked for identification.) 3 4 Q. (By Ms. Carlyle) what that it, please? 5 A. Yes. 6 Q. Okay. 7 8 Can you tell us if you know This is a bid record document. MR. HANSEN: Could we identify the Bates numbers? 9 MS. CARLYLE: Certainly. The Bates number on 10 this document is 1292, again from the disc that was 11 provided on January 10, 2014. 12 13 Q. (By Ms. Carlyle) When does it reflect that the -- well, when was it signed? 14 A. The document is dated 10/21/13. 15 Q. And this document refers to bidding for 10 16 grams of injectable pentobarbital, correct? 17 A. Correct. 18 Q. Are you aware of the existence of any other 19 bid records like this for injectable pentobarbital? 20 A. No, I'm not aware of any other bid records. 21 Q. Okay. So there is no similar bid record that 22 might have been created after October 21 of 2013 as far as 23 you know? 24 25 A. As far as I know. I'm not aware of any bid record created after this one. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 46 1 Q. Again, but for the judge's ruling, I would now 2 ask you -- well, actually I think you answered this one. 3 Did you identify M7? 4 A. Did I? 5 Q. I mean did you find it, locate it, whatever? 6 A. Yes. 7 Q. Okay. 8 And did you provide the name of M7 to Mr. Dormire? 9 A. Correct. 10 Q. When did you do that? 11 A. I do not recall. 12 Q. Can you give me within a month or a year? 13 A. It would have been within -- I'm completely 14 blanking. What month is this? 15 Q. This is March. 16 A. It would have been February -- January or 17 18 February of this year. Q. Okay. Did you provide him with that name 19 before the Oklahoma judgment in which M6 -- or which the 20 hypothecary shop in Tulsa, Oklahoma which I guess hasn't 21 been identified as M6, agreed not to supply drugs for 22 Missouri, did you provide the name before that? 23 24 MR. HANSEN: Objection based on my original objection. 25 www.midwestlitigation.com MS. CARLYLE: You're objecting to giving a MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 47 1 date when you provided the name of M7 to Mr. Dormire? 2 MR. HANSEN: All right. 3 A. I don't recall. 4 Q. (By Ms. Carlyle) 5 A. I don't know that I've ever seen that judgment. 8 9 You don't remember whether it was before or after that judgment? 6 7 Go ahead. Q. Okay. Well, I can give you a date. Let me just ask it this way because we don't really need a date. 10 At the time that you provided that name, were you aware 11 that a complaint had been filed against the hypothecary 12 shop? 13 A. Yes. 14 Q. So if the complaint was filed on February 11 15 of 2014, then the -- then you provided the name after that; 16 would that be fair? 17 18 19 A. I don't know that I can confirm or deny that. I do not know. Q. I understand that. I'm saying if I were to 20 represent to you that the complaint was filed on 21 February 11, what you're telling me is that it was after 22 that event that you provided the name? 23 24 25 A. No. What I'm saying is, I do not know that it was before -- whether it was before or after that date. Q. www.midwestlitigation.com Okay. Was there someone in the Department of MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 48 1 Corrections who directed you to find another pharmacy? 2 A. No. 3 Q. Were you referred to M7 by M6? 4 5 MR. HANSEN: I will object based on my original objection to that question. 6 7 Object. Q. (By Ms. Carlyle) Did you perform research concerning the reliability of M7? 8 A. Yes. 9 Q. Do you know whether M7 had ever supplied 10 execution drugs in other states? 11 MR. HANSEN: 12 objection. 13 Q. 14 (By Ms. Carlyle) MR. HANSEN: 16 MS. CARLYLE: 17 MR. HANSEN: 18 MS. CARLYLE: MR. HANSEN: 21 MR. SPILLANE: He answered it for M6. I know he did. I think you waived the objection Go ahead and answer unless you -Let the judge decide. I don't know that he waived it. 23 24 Same objection. then. 20 22 Do you know whether M7 had ever compounded pentobarbital before supplying it to MDOC? 15 19 Objection based on my original MS. BORESI: It's with regard to a different entity. 25 www.midwestlitigation.com MS. CARLYLE: Well, that's true. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 It's exactly Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 49 1 the same question however. 2 Q. (By Ms. Carlyle) Did you make inquiry as to 3 whether any professional complaints had been filed against 4 M7? 5 A. Yes. 6 Q. And where there any? 7 8 MR. HANSEN: Objection based on the original objection. 9 MS. CARLYLE: Again, I'll state for the record 10 but for the judge's earlier ruling, I would explore with 11 Mr. Briesacher the complete history of his dealings with 12 M7. 13 morning, that I believe this is relevant to our deliberate 14 indifference claim. 15 objection, that's fine. And I would further state, which I didn't this 16 17 18 But if you want to make the same MR. HANSEN: Q. Same objection. (By Ms. Carlyle) Let's go back to Exhibit 5. Did you perform the redactions on Exhibit 5? 19 A. I do not recall. 20 Q. Okay. I may have. Have you been involved in performing 21 redactions on discovery that's been supplied to the 22 plaintiffs in this case? 23 A. Yes, I have. 24 Q. Exhibit 5 reflects that in the case of two, I 25 guess, requests, the product was not available; is that www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 50 1 correct? 2 A. Yes, that's what the document states. 3 Q. Okay. 4 Did you decide to redact the identity of the people who said that the drug was not available? 5 A. Yes. 6 Q. Why did you do that? 7 A. I believe that information is confidential as 8 it could lead to the identity of the bidder that did 9 receive the award. 10 Q. Okay. Let me just ask you because I think I 11 kind of need to understand this to understand exactly what 12 you do now. 13 forget, are you separately represented today? 14 lawyer who's here? 15 16 You said up until -- first of all, before I MR. HANSEN: Who's your The Attorney General's Office represents the Department of Corrections and he's -- 17 MS. CARLYLE: 18 Q. Mr. Briesacher is a named party. (By Ms. Carlyle) What I'm asking you is are 19 you personally represented by the Attorney General's Office 20 today? 21 22 A. It's my understanding I'm not personally sued. I'm sued in my official capacity -- 23 Q. Right. 24 A. -- which means it's the same as a suit against 25 the department. www.midwestlitigation.com I understand that. So I would be represented by the Attorney MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 51 1 General's Office. 2 3 Q. Okay. Let me also then ask you, you said your job title had changed about a month ago. 4 A. Correct. 5 Q. Was the department you're in restructured in 6 some way? 7 A. Yes. 8 Q. So what's the current structure of it, just so 9 I understand who's who, if you don't mind? 10 11 A. department? 12 13 Of the entire department or just the legal Q. Just the legal department. It would take you a while probably to do the entire department. 14 A. I'm not sure I could do the entire department. 15 But just the legal department, I report to the general 16 counsel Mr. Williams. 17 Q. Okay. 18 A. And then two attorneys report to me. 19 Q. Okay. 20 A. And I guess there are other units that report 21 to the general counsel's office. 22 23 24 25 Q. There are other -- what's a unit in that A. The Procedures and Forms Management Unit sense? reports to the general counsel and the Prison Rape www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 52 1 Elimination Act Unit -- Central Office Unit also reports to 2 that position. 3 4 Q. Okay. And so when you were general counsel, did those two units report to you? 5 A. Correct. 6 Q. So until four weeks ago, what was the 7 structure of the legal department? 8 A. There was no deputy general counsel. 9 Q. Okay. 10 Has your role in the execution process changed as a result of your change in job title? 11 A. Yes. 12 Q. Okay. Then we'll divide it up into two here. 13 Let's talk first of all about up until four weeks ago. 14 you participate in simulation training for executions? 15 A. Yes. 16 Q. Okay. 17 18 19 Did And what was your role in the simulation trainings? A. It would probably best be described as a subject matter expert. 20 Q. As is? 21 A. Subject matter expert. 22 Q. What's a subject matter expert? 23 A. I was the one with the most knowledge of the 24 25 protocol. Q. www.midwestlitigation.com Do you have -- do you have knowledge of how to MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 53 1 insert intravenous lines and administer chemicals; is that 2 part of your knowledge base? 3 4 A. I have no specific training in inserting intravenous lines or chemicals. 5 6 No. Q. So what did you do during the simulation training? 7 A. I observed and participated in the training. 8 And if there were questions that needed to be answered 9 relating to department policy, I assisted in answering 10 those questions. 11 Q. How did you participate in the training? 12 just said you observed or participated. 13 how you participated other than answering questions? 14 15 A. You I'm just asking I guess -- I don't know a better way to describe it. 16 Q. I guess -- maybe I'm just confused. Observed 17 is one thing and participated, to me, sort of sounds like 18 another. 19 other than answering questions, what did you do during the 20 training sessions, I guess is the question. Maybe that's a distinction you don't make. But 21 A. I was not the trainer. 22 Q. Okay. 23 A. So I guess when I say I participated, the 24 trainer was responsible for providing the training. 25 observed and participated in that I was receiving training www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 So I Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 54 1 from the trainer. 2 Q. 3 you're telling me? 4 A. Yeah, I guess so. 5 Q. What kind of training did you receive? 6 A. I received training on the process to conduct 7 Q. A. I was involved in writing the protocols and MS. CARLYLE: Okay. Let's take a look at exhibit seven. 14 15 And why did you think you needed policies for conducting executions. 12 13 Okay. training on the process of conducting an execution? 10 11 So you were receiving training is what an execution. 8 9 Okay. (Whereupon Exhibit No. 7 was marked for identification.) 16 MS. CARLYLE: I'm tendering to Mr. Briesacher 17 Exhibit 7 which is Pages 1175, 1176, 1177 and 1178 of the 18 discovery provided on disc on January 10 of 2014. 19 20 MR. HANSEN: Were these with it? 21 22 They're not marked. MS. CARLYLE: I have four pages in the THE WITNESS: I don't know where those came exhibit. 23 24 There's some pages behind it. from. 25 www.midwestlitigation.com MR. HANSEN: They're not marked as exhibits. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 55 1 MS. CARLYLE: 2 MR. HANSEN: 3 MS. CARLYLE: 5 them as I bring them up. 6 MR. HANSEN: MS. CARLYLE: Okay. Well, I'm asking where They belong to you because they're part of the set of copies that were bound together. 10 11 That's because she's labeling they belong. 8 9 Well, some have labels and some don't. 4 7 Yes, they are. Q. (By Ms. Carlyle) Back to Exhibit 7. Can you tell me please what Exhibit 7 is? 12 A. The first page of the exhibit is a memo to me 13 from Dr. Greg Markway dated November 15, 2013. 14 page is a memo from Dr. Greg Markway to me dated 15 September 5, 2013. 16 Markway to director George Lombardi dated 11/15/2013. 17 18 Q. The second The third page is a memo from Dr. Greg And does that reflect that there was a copy provided to you? 19 A. Yes, that is correct. It indicates there was 20 a copy provided to Matt Sturm and to myself and to the 21 file. 22 to me dated 11/15/2013 with copies to Matt Sturm and the 23 file. 24 25 And the fourth page is a memo from Dr. Greg Markway Q. Just so we're clear -- frankly I didn't realize that until this moment -- do Pages 1175 and 1178 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 56 1 appear to be -- to have the same text on them? 2 they have some different handwritten and stamped markings, 3 but I think they're the same thing, are they not? I realize 4 A. Yes. 5 Q. And what's the general topic of these memos? 6 A. Offender Joseph Franklin. 7 Q. And what about Offender Joseph Franklin? 8 A. Appears to be reviews of his medical records. 9 Q. In fact, they're reviews of the -- and contain 10 recommendations concerning whether he's competent to be 11 executed, don't they? 12 A. Pursuant to Statute 552.010, correct. 13 Q. What's your role or what at that time was your 14 role in the determination as to whether a prisoner was 15 competent to be executed? 16 A. Providing legal advice and counsel if asked. 17 Q. Okay. Did you -- well, is the -- this review, 18 it looks like, was conducted by Dr. Markway; is that 19 correct? 20 A. That is correct. 21 Q. Is that -- is it a part of -- or at least is 22 it part of DOC policy that he performs that sort of review? 23 24 25 A. It is the practice. Q. Okay. I don't know if it is the policy. www.midwestlitigation.com I'm not -- I'm not -- I mean I think I MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 57 1 understand the difference. 2 needed. 3 4 Let's take a look at -- I'm looking for 8. And it may be that I ended up with yours. 5 MR. HANSEN: 6 MS. CARLYLE: 7 MR. HANSEN: 8 MS. CARLYLE: 9 And that was the information I I've got my copy of 8. Okay. I don't have a yellow... There isn't a yellow one yet because she hasn't marked it. 10 MR. HANSEN: 11 MS. CARLYLE: Yes. 12 THE WITNESS: No. 13 MR. HANSEN: 14 MS. CARLYLE: 15 to reorganize here. 16 Do you have a 9? You're looking for an 8? MR. HANSEN: 18 MS. CARLYLE: I just handed you one. You did. Give me just a second There's 9 right here. There should be another set of those. 20 MR. HANSEN: I've got ones that were not 21 marked with exhibit stickers. 22 and 9. 23 24 Do you have 8? If I do that, we'll save time later. 17 19 Let's see what I've got. MS. CARLYLE: All I've got is 1, 5, 6, 8 Somehow my 8 and 9, I think, migrated. 25 www.midwestlitigation.com (Whereupon Exhibit No. 8 was marked for MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 58 1 identification.) 2 3 MS. CARLYLE: MR. HANSEN: 5 MS. CARLYLE: 6 I need to see one. 7 Q. been marked as Exhibit 8. 9 Discovery No. 2797. 12 13 14 If you've marked that one up -- Okay. I've handed you what's I will tell you that it is It was provided in discovery on March 20, 2013 [sic]. A. Look at the original one. (By Ms. Carlyle) 8 11 You can use whichever one you want. 4 10 So this is 8. And I'd ask you what that is? It is a memorandum from Dave Dormire to Lenny Lenger dated March 20, 2014. Q. And is it a request for payment for contracted providers assisting in the execution of Jeff Ferguson? 15 A. Yes. 16 Q. And does it list three providers and three 17 different amounts of money? 18 A. Yes. 19 Q. Are you able to tell me by function which 20 amount goes with what function? 21 you whether you're paying John Smith, but I'm asking is one 22 the pharmacy, is one -- 23 24 25 A. That is, I'm not asking If I can use the M designations, would that be responsive? Q. www.midwestlitigation.com Sure. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 59 1 A. I believe the first one -- provider listed is 3 Q. M6? 4 A. The pharmacy. 5 Q. Okay. 2 6 7 8 M6. But is the pharmacy for Jeffrey Ferguson? A. Oh, sorry. I got the dates wrong. M7. Thank you for correcting me. 9 Q. Sure. 10 A. I believe the second provider listed is for M3 11 12 13 14 15 16 17 and the third provider listed was for M2. Q. Okay. laboratories, are they? A. M2 is the nurse, correct? You're correct on -- no. None of those providers are laboratories. Q. Okay. Do you know whether the sum to be paid to M7 includes the sum for laboratory testing? 18 19 So none of those providers are MR. HANSEN: Objection based on my original objection. 20 MS. CARLYLE: I actually don't have a whole 21 lot more. 22 questions for the judge, we'll ask her all at once. 23 that's okay. 24 25 Let me go through that, and then if we have Q. If Because I'd like to ask her about that. (By Ms. Carlyle) Let me take you back, Mr. Briesacher, to the night of the execution of Alan www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 60 1 Nicklasson and ask you where were you located during the 2 period -- during the warrant period for Mr. Nicklasson? 3 warrant period, I mean the period from 12:01 on the day 4 that he was scheduled to be executed until he was executed, 5 which I believe was 20 hours later. 6 7 A. When I was at the institution, I would have been in a conference room in the administration building. 8 9 By Q. Okay. When were you at the institution within that period? 10 A. I don't think I could give you exact times. 11 Q. General times. 12 A. I believe there was a standdown during that 13 period. 14 would have been in the conference room or the vicinity 15 thereof. 16 17 So any time that we were not on a standdown, I Q. And when there wasn't a standdown, were you in direct communication with Attorney General Koster? 18 A. Not the entire time. 19 Q. Okay. 20 before the execution? 21 22 23 When did you last talk to Mr. Koster MR. HANSEN: lack of foundation. A. Objection, form of the question, Go ahead. Well, immediately -- I shouldn't say just 24 immediately. 25 direct contact with the Attorney General's Office. www.midwestlitigation.com But prior to the execution, I established MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 61 1 2 Q. (By Ms. Carlyle) Okay. Were you talking to Mr. Koster or someone else? 3 A. I don't recall. 4 Q. Okay. Were you the person who was responsible 5 for telling Mr. Lombardi that there were no legal 6 impediments to the execution? 7 responsible for communicating to Mr. Lombardi that there 8 were no legal impediments to the execution? 9 A. Not -- okay. Were you I was responsible for relaying the message 10 that we received from the Attorney General's Office prior 11 to execution. 12 Q. Okay. At the time Mr. Nicklasson was 13 executed, were you aware that there was a motion for Stay 14 of Execution pending before the 8th Circuit? 15 A. I do not recall. 16 Q. Did you tell Mr. Lombardi that there was a 17 Stay motion pending before the 8th Circuit? 18 A. I do not recall. 19 Q. Let me ask you similarly for -- did you 20 perform a similar function during the warrant period for 21 Joseph Franklin? 22 A. Yes. 23 Q. And were you then the person who was 24 responsible for relaying the message from the Attorney 25 General's Office to Mr. Lombardi? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 62 1 A. Yes. 2 Q. And in both cases, Mr. Nicklasson and 3 Mr. Franklin did you do that personally? 4 Mr. Lombardi personally or did you relay that through some 5 third person? Did you talk to 6 A. Personally. 7 Q. Was Mr. Lombardi at the institution? 8 A. Yes. 9 Q. And was the same -- was the same process 10 followed for Mr. Smulls? 11 A. Same process? 12 Q. In that you were at the institution, you were 13 the person responsible for communicating to Mr. Lombardi 14 and you did so personally? 15 A. Yes. 16 Q. Okay. And with respect to Mr. Franklin, were 17 you aware at the time you made that communication, that 18 there was a Stay motion pending in the district court? 19 A. I do not recall. 20 Q. And did you tell Mr. Lombardi that? 21 22 MR. HANSEN: I'm going to object to what he told his client. 23 MS. CARLYLE: I -- I guess my response to that 24 objection is in that the protocol requires that he be 25 notified -- that Mr. Lombardi be notified by the -- make a www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 63 1 determination, I don't think this is really an 2 attorney/client function. 3 that he doesn't recall three times. 4 waived that one. 5 MR. HANSEN: 6 privileged communication. 7 objection. 8 9 Plus he's answered the question I think you've clearly It is attorney/client potentially But go ahead. I'll withdraw the You can answer the question same way you did previously. 10 MS. CARLYLE: 11 A. Unless he recalls. Well, I guess since I don't recall if I knew 12 the information, I don't know that I can answer the 13 question you've just asked. 14 Q. (By Ms. Carlyle) Okay. And with respect to 15 Mr. Smulls, were you aware at the time you communicated 16 with Mr. Lombardi, that there was a motion for Stay of 17 Execution pending in the United States Supreme Court? 18 19 20 21 A. or not. I don't recall if there was a motion pending So I don't recall if I... Q. Well, there certainly was. The question is, did you know it? 22 A. I don't recall if I knew it or not. 23 Q. Okay. 24 25 And do you recall whether you communicated about that to Mr. Lombardi? A. www.midwestlitigation.com If I don't recall if I knew it, I can't recall MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 64 1 whether I communicated it to him. 2 MS. CARLYLE: Okay. I know we're being 3 cautious here. 4 be in a position where later on someone says, oh, but you 5 never asked him if he communicated that to Mr. Lombardi. 6 7 And that's what I'm doing. MR. HANSEN: Q. I don't want to I understand. (By Ms. Carlyle) Okay. Do you have any 8 knowledge about the process of disposing of unused 9 pentobarbital after executions? 10 A. Yes. 11 Q. And what's that knowledge? 12 A. I know for the executions we have conducted 13 14 15 how the disposal or lack of disposal has occurred. Q. Well, tell me about what happened to the unused pentobarbital on Mr. Franklin's execution. 16 A. It was disposed of. 17 Q. By whom? 18 A. I would have to look at the document. 19 20 (Whereupon Exhibit No. 9 was marked for identification.) 21 Q. 22 A. Yes. 23 Q. Can you tell us what Exhibit 9 is? 24 A. It is a chemical log dated -- well, for the 25 (By Ms. Carlyle) Have a look at Exhibit 9. execution of Joseph Franklin on November 20, 2013. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 65 1 2 Q. Does that tell you what you need to know about how the chemicals were disposed of? 3 A. No. 4 Q. What document would you need to look at in 5 order to know that? 6 A. The -- either the chemical inventory sheet or 7 there's another record of -- there are two forms regarding 8 inventory that we've produced. 9 titles of the two of them. 10 Q. And I don't remember the I guess what you're telling me is that in the 11 materials that have been produced are the documents you 12 need? 13 A. Yes. 14 15 MR. HANSEN: it was done? 16 Just to kind of move it along. MS. CARLYLE: 17 he'd have to look. 18 record for a minute. 19 20 21 Are you asking who did it or how I asked who did it. But let's move along. He said Let's go off the (Whereupon there was a short break.) Q. question: (By Ms. Carlyle) So first let me ask this Do M2 and M3 dispose of the unused drugs? 22 MR. HANSEN: I think you might want -- need to 23 ask the question more specifically. 24 been -- I don't think it's been the same in each instance. 25 So I don't know if you want to clarify the question. www.midwestlitigation.com Because there have MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 66 1 2 Q. (By Ms. Carlyle) Did M2 and M3 dispose of the drugs in Mr. Franklin's case? 3 A. No. 4 Q. I understand that you don't know the name of 5 the person who disposed of it, but can you explain the 6 process by which they were disposed and the sort of person 7 by job description who would have disposed of it? 8 9 A. I know it was a department staff member. It was -- it was one of two or three people who were in the 10 business office or the administration. 11 the process was that they took a bucket, filled it bleach 12 and a small amount of water, injected the two leftover 13 syringes into that, mixed it up and threw it out. 14 Q. My understanding of Let me -- let me ask you, so what happened to 15 the chemicals that were used in the execution of Mr. 16 Nicklasson? 17 18 A. It's my understanding that a very similar process was used. 19 Q. And Mr. Smulls? 20 A. The unused chemicals were placed in a sealed 21 container. 22 Q. Let me refer you to Exhibit 1, Paragraph D2. 23 A. Exhibit 1 D2. 24 Q. Right. 25 A. Medical personnel shall monitor the prisoner www.midwestlitigation.com Just read that to us, please? MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 67 1 during the execution. 2 Q. I'm sorry. 3 A. Medical personnel shall properly dispose of 4 5 F1. unused chemicals. Q. Okay. Does the -- do you believe that the 6 process you've described with respect to Mr. Franklin and 7 Mr. Nicklasson complies with that? 8 A. Yes. 9 Q. So the person who disposed -- the people who 10 dispose of the chemicals, according to the account you've 11 given, are medical personnel? 12 A. No. 13 Q. Okay. Then since the protocol says that 14 medical personnel dispose of the accused -- of the unused 15 chemicals, why is it that you think that the process that's 16 used complies with that? 17 A. I think the medical personnel placed it and 18 identified what needed to be disposed and provided 19 direction to the individuals who did it. 20 21 22 23 24 25 Q. So do you think at the time that the disposal occurred, the medical personnel were there? A. Not present, but they had given direction to the individuals who were to dispose of it. Q. Were you there when they gave those directions? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 68 1 A. No, I was not. 2 Q. So you believe they gave those directions, but 3 you don't have any personal knowledge of it? 4 A. That is correct. 5 Q. Let me ask you this: If M3 testified, as he 6 did, that he simply left the chemicals on the table and 7 left the room, would that comply with the protocol? 8 A. M3 is -- 9 Q. M3 is the doctor. 10 A. Correct. 11 Q. He's medical personnel, isn't he? 12 A. I don't know that that would be in violation 13 of the protocol. 14 Q. No. I -- well, okay. Can you tell me whether 15 prisoners in the holding cell at Bonne Terre -- can we 16 agree on what the holding cell is? 17 little more fully just so we're clear. 18 which the prisoner is placed before he's taken to the 19 execution center -- chamber. 20 21 22 23 Let me describe it a The last place in A. I believe I understand what you're talking Q. And that is in fact called the holding cell, about. is it not, in the descriptions of how a prisoner is held? 24 A. I believe so, yes. 25 Q. Okay. www.midwestlitigation.com Is a prisoner who's in the holding cell MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 69 1 allowed to have confidential visits with lawyers? 2 A. Yes. 3 Q. What about confidential visits with clergy? 4 A. Yes. 5 Q. What do you mean by to an extent? 6 A. Consistent with the safety and security needs I guess to an extent. 7 of the institution, we try and accommodate confidential 8 visits to the best of our ability. 9 Q. And do you know how in practice how that works 10 with respect to prisoners in the holding cell and their 11 attorneys and clergy? 12 A. It is dependent upon the prisoner. 13 Q. What are the options for how it could work? 14 A. It would be dependent upon the prisoner. 15 Q. I understand that. But what's the range of 16 options that dependent upon the prisoner that the prison 17 could use; do you know? 18 A. I don't know the full range. 19 Q. Do you know any of them? 20 A. Yeah, I know some. 21 Q. Okay. 22 A. I know that -- well, at what point are we 23 24 25 Well, tell me the ones you know. talking about? Q. When they're in the holding cell, at any time when they're in the holding cell. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 70 1 A. At any time it changes. So for example, the 2 closer it gets to the time of execution -- and I'm not 3 certain which time that is -- then the ability for visits 4 is cut off. 5 off. 6 execution, those change. And I think it's restricted before it's cut So as we get closer to the anticipated time of 7 If you're talking about Offenders Franklin or 8 Nicklasson, they were in the holding cell, my understanding 9 is, longer than for instance Offender Smulls and Offender 10 Taylor. 11 was some other meetings that were allowed under various 12 circumstances. 13 So I think in those cases, I'm aware that there Q. Okay. But once -- let's just talk about the 14 timetable for Mr. Smulls and Mr. Taylor. 15 the holding cell, were they able to have confidential 16 visits with anyone? Once they were in 17 A. Yes. 18 Q. Okay. 19 A. I'm not sure that they actually did. And how did that work? I know 20 that they were able to. 21 communications with their legal counsel throughout the 22 period that they were in their holding cell. 23 Q. I know there were confidential So while they were in the holding cell, it was 24 possible for them to communicate with their legal counsel 25 and their legal counsel to communicate with them without www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 71 1 anyone listening? 2 A. Yes. 3 Q. And was that also true for clergy? 4 don't know that either of them requested that. 5 had, would that be accommodated also? 6 A. Again, I But if they I believe -- I would have to look at the logs. 7 But, yes, there would have been an opportunity for them to 8 communicate with clergy, just as with their counsel, in a 9 confidential telephone call. 10 Q. Okay. 11 A. I guess you're going to have to be more 12 What about a confidential visit? specific on what you mean by confidential. 13 Q. I mean a visit in which no one is listening. 14 A. Yes. I guess again, I would have to -- I am 15 not in a position to make that call about when that is and 16 is not allowed. 17 Q. Okay. 18 A. I was not privy to the safety and security 19 issues regarding those two offenders. 20 generally. 21 I'm speaking I just wanted that to be on the record. MS. CARLYLE: Absolutely. I think that's all 22 I have except for the things I'd like to ask the judge 23 about. 24 surprised. I'll remind you what they were so you won't be 25 www.midwestlitigation.com MR. HANSEN: One was about the lab. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 72 1 MS. CARLYLE: Yeah. And the question 2 specifically was -- the series of questions specifically 3 were, was laboratory testing performed on the drug used to 4 execute Michael Taylor and why have no laboratory reports 5 been provided? 6 different laboratory that tested the drugs for Mr. 7 Nicklasson, Smulls and Franklin? 8 laboratories under contract to test pentobarbital for the 9 department of corrections? 10 Was it performed by the same laboratory or And are there any other Then the only other one was whether the 11 payment on Exhibit 8 that's requested for Mr. Ferguson 12 that's for M7 includes a payment to a laboratory. 13 we clear what we're going to ask her about? So are 14 MR. HANSEN: 15 MS. CARLYLE: 16 (Whereupon there was a conference call with 17 Yes. Let's go off. Judge Philips.) 18 MS. CARLYLE: Since going off the record, the 19 parties have had a telephone conference with Judge Philips 20 with respect to the questions which were earlier objected 21 to, specifically was laboratory testing performed on the 22 drug used to execute Michael Taylor; why have no laboratory 23 reports been provided; was the testing, if there was any 24 performed, by the same laboratory or a different laboratory 25 than tested the drug used on Mr. Smulls, Mr. Franklin and www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 73 1 Mr. Nicklasson; are there any other laboratories under 2 contract to test pentobarbital; and did the payment for 3 Mr. Ferguson's drugs to the pharmacy include a payment for 4 the laboratory. 5 The Court declined to rule on those questions 6 pending further consideration and briefing. 7 at this point as being asked and not answered. 8 not withdrawn and we anticipate a later resolution of that 9 decision. 10 11 They are With that, I have no further questions for this witness and would tender him for cross-examination. 12 13 So they stand MR. HANSEN: No questions. We will waive presentment but sign. 14 (Whereupon signature was reserved.) 15 (Off the record at 2:44 p.m.) 16 17 18 19 20 21 22 23 24 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 74 1 CERTIFICATE OF REPORTER 2 I, Sheryl A. Pautler, Certified Shorthand 3 Reporter, Notary Public within and for the State of 4 Missouri, do hereby certify that the witness whose 5 testimony appears in the foregoing deposition was duly 6 sworn by me; the testimony of said witness was taken by me 7 to the best of my ability and thereafter reduced to 8 typewriting under my direction; that I am neither counsel 9 for, related to, nor employed by any of the parties to the 10 action in which this deposition was taken, and further that 11 I am not a relative or employee of any attorney or counsel 12 employed by the parties thereto, nor financially or 13 otherwise interested in the outcome of the action. 14 15 ______________________________ 16 Notary Public within and for 17 the State of Missouri 18 19 20 21 22 23 24 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 75 1 MIDWEST LITIGATION SERVICES 2 March 31, 2014 3 Mr. David Hansen Missouri Attorney General's Office 4 207 West High Street Jefferson City, Missouri 65102 5 IN RE: DAVID ZINK, et al. vs. GEORGE A. LOMBARDI, 6 et al. 7 Dear Mr. Hansen: 8 Please find enclosed your copies of the deposition of MATTHEW BRIESACHER taken on March 21, 2014 in the 9 above-referenced case. Also enclosed is the original signature page and errata sheets. 10 Please have the witness read your copy of the 11 transcript, indicate any changes and/or corrections 12 desired on the errata sheets, and sign the signature 13 page before a notary public. 14 15 Please return the errata sheets and notarized 16 signature page to Ms. Elizabeth Unger Carlyle for filing 17 prior to trial date. 18 19 Sincerely, 20 21 22 Ms. Sheryl Pautler 23 24 Enclosures 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 76 1 ERRATA SHEET Witness Name: MATTHEW BRIESACHER 2 Case Name: DAVID ZINK, et al. vs. GEORGE A. LOMBARDI, et al. 3 Date Taken: MARCH 21, 2014 4 Page #_____ Line #_____ 5 Should read: ____________________________________ 6 Reason for change: ______________________________ 7 8 Page #_____ Line #_____ 9 Should read: ____________________________________ 10 Reason for change: ______________________________ 11 12 Page #_____ Line #_____ 13 Should read: ____________________________________ 14 Reason for change: ______________________________ 15 16 Page #_____ Line #_____ 17 Should read: ____________________________________ 18 Reason for change: ______________________________ 19 20 Page #_____ Line #_____ 21 Should read: ____________________________________ 22 Reason for change: ______________________________ Witness Signature: ______________________________ 23 24 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 77 1 STATE OF _______________) 2 3 COUNTY OF ______________) 4 5 I, MATTHEW BRIESACHER, do hereby certify: 6 That I have read the foregoing deposition; 7 That I have made such changes in form 8 and/or substance to the within deposition as might 9 be necessary to render the same true and correct; 10 11 12 13 14 15 That having made such changes thereon, I hereby subscribe my name to the deposition. I declare under penalty of perjury that the foregoing is true and correct. Executed this _____ day of _______________, 20___, at ___________________________. 16 17 18 19 __________________________ 20 MATTHEW BRIESACHER 21 22 __________________________ 23 NOTARY PUBLIC 24 My Commission Expires: 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 78 A ability 69:8 70:3 74:7 able 14:9,21 18:18 21:7 58:19 70:15,20 above-referenc... 75:9 Absolutely 28:12 71:21 accepted 14:8 accommodate 69:7 accommodated 71:5 account 67:10 accurate 35:15 accused 67:14 Act 31:13 52:1 action 9:25 10:2 10:3 11:5 74:10 74:13 actions 37:2 actual 15:23 ADA 10:2 11:9 add 31:18 added 25:11 address 31:10 adjourning 34:7 administer 53:1 administration 60:7 66:10 adopted 17:4 21:12 advice 36:25 56:16 affirm 35:25 afternoon 3:17 age 5:10 ago 6:16 51:3 52:6,13 agree 24:13 25:13 34:10,21 68:16 agreed 5:1 46:21 ahead 21:1 31:17 38:14 43:22 47:2 48:20 60:22 63:6 al 1:7,13 3:4,10 3:23,24 75:5,6 76:2,2 Alan 29:21 59:25 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27:19 50:15,19,25 60:17,25 61:10 61:24 74:11 75:3 attorneys 7:15,18 33:6 51:18 69:11 attorney/client 28:1 36:17,25 63:2,5 available 49:25 50:4 award 50:9 aware 27:18 28:4 28:5 38:5 43:6 45:18,20,24 47:10 61:13 62:17 63:15 70:10 a.m 1:22 45:15 bigger 24:7 birth 8:14 bit 41:9 Blackwell 3:18 blanking 46:14 bleach 66:11 Bonne 68:15 book 36:20 Boresi 4:12 48:23 B bottom 15:25 B 17:9,17,18,21 24:18 back 13:23 35:4 bound 55:9 38:4 42:17 Box 4:5 44:22 49:17 break 23:14 55:10 59:24 42:16 65:19 base 53:2 briefing 73:6 based 14:3 21:5 Briesacher 1:19 32:11 33:16,16 3:14 5:3,9,15 39:3,22 40:23 6:1 23:15 35:10 42:3 44:20 40:9 41:15 46:23 48:4,11 49:11 50:17 49:7 59:18 54:16 59:25 bases 35:21 75:8 76:1 77:5 Bates 15:24 16:1 77:20 16:2 45:7,9 bring 35:19 55:5 bear 37:23 broaden 14:15 began 1:22 21:8 bucket 66:11 behalf 1:20 5:11 building 60:7 believe 10:16 business 29:16 22:21 23:1,4 42:4 66:10 24:1,17 27:17 businesses 43:12 36:16 44:12 B1 13:24 17:13 49:13 50:7 59:1 B1(a) 16:21 17:7 59:10 60:5,12 C 67:5 68:2,20,24 C 4:1 17:19 71:6 call 9:14 30:17 belong 55:7,8 34:12 35:2 best 14:24 52:18 44:22 71:9,15 69:8 74:7 72:16 better 5:24 53:14 called 14:21 bid 2:15 36:15 68:22 45:5,19,20,21 calling 36:19 45:24 calls 14:17 bidder 50:8 capacity 10:19 bidding 36:10 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 79 10:20 50:22 capital 17:18,19 captioned 11:17 careful 37:24 38:2,12 Carlyle 2:3 4:3,4 5:13 8:22 9:4,8 9:11,13,17 12:16,24 13:6,7 15:13,19,21 16:1,6 19:21,23 23:6,12,15,22 24:1,4,20 26:9 26:12 27:1,3 28:3,5,17,20,21 29:16,19 30:11 30:16,23,25 31:4 32:18,22 33:11,19 34:14 35:1,4,16,24 36:4 37:3,12,13 37:20,25 38:11 38:15 39:9,13 39:21,24 40:7 40:16,25 41:5,9 41:15 42:15,20 43:18,22 44:1,4 44:8,12,17,21 45:3,9,12 46:25 47:4 48:6,13,16 48:18,25 49:2,9 49:17 50:17,18 54:12,16,21 55:1,4,8,10 57:6,8,11,14,18 57:23 58:2,5,7 59:20,24 61:1 62:23 63:10,14 64:2,7,21 65:16 65:20 66:1 71:21 72:1,15 72:18 75:16 carry 19:15 20:1 20:10 case 11:20 12:8 12:13 14:7 29:13 31:7,9,11 31:16 32:3,4 33:7 49:22,24 66:2 75:9 76:2 cases 62:2 70:10 cause 1:10 3:7,21 cautious 64:3 cell 68:15,16,22 68:25 69:10,24 69:25 70:8,15 70:22,23 center 68:19 Central 1:3 3:3 3:22 52:1 certain 3:21 70:3 certainly 38:2 45:9 63:20 CERTIFICATE 74:1 Certified 3:19 74:2 certify 74:4 77:5 chamber 68:19 chance 12:20 change 52:10 70:6 76:6,10,14 76:18,22 changed 16:18 51:3 52:10 changes 70:1 75:11 77:7,10 charges 41:23 chemical 2:21 27:14 64:24 65:6 chemicals 21:8 22:18 23:2 25:3 25:6,8 26:20 27:8,10,15,21 28:25 36:11 42:8 53:1,4 65:2 66:15,20 67:4,10,15 68:6 Christopher 11:17 Circuit 61:14,17 www.midwestlitigation.com circumstances 70:12 City 3:18 4:6,16 75:4 claim 49:14 claiming 12:5 claims 32:3,4,5 35:12 clarified 20:18 clarify 28:10 65:25 clarifying 27:1 clear 9:7 23:20 31:4,22,25 32:1 43:18,23 55:24 68:17 72:13 clearer 23:7 clearly 63:3 Clemmonds 12:5 clergy 69:3,11 71:3,8 client 28:2 62:22 closer 70:2,5 combination 18:3 combined 16:17 43:7 come 34:17 36:15 Commission 77:24 communicate 70:24,25 71:8 communicated 63:15,24 64:1,5 communicating 61:7 62:13 communication 36:17,25 60:17 62:17 63:6 communications 70:21 competent 56:10 56:15 complaint 32:6 32:12 33:17,23 34:2,4 47:11,14 47:20 complaints 39:14 49:3 complete 49:11 completely 11:4 25:13 34:22 46:13 complex 31:9 complies 67:7,16 comply 68:7 compound 26:23 27:3,5 28:24 36:22,22 compounded 39:25 40:2 48:14 compounding 23:2 32:25 40:3 compounds 26:20 computer 23:21 concern 20:3 29:13,15 31:25 42:8 concerned 34:18 concerning 36:10 37:14 48:7 56:10 concerns 11:10 conditions 41:25 conduct 54:6 conducted 56:18 64:12 conducting 54:9 54:11 conference 34:12 34:16 35:2 60:7 60:14 72:16,19 confidential 8:21 8:23 9:3,5 32:12 38:7,9 50:7 69:1,3,7 70:15,20 71:9 71:10,12 confirm 47:17 confused 53:16 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 connection 33:21 42:24 43:11 consideration 73:6 consistent 14:3 69:6 consists 25:1 constituted 7:14 constitutional 10:4 12:2 consulted 27:23 contact 36:14 60:25 contacted 30:19 35:8 40:10 contacting 36:19 contain 56:9 container 66:21 context 34:12 35:21 continue 32:16 contract 72:8 73:2 contracted 25:1 58:13 contracts 44:9 contractual 43:13 conversations 28:1,4 convicted 9:17 coordinator 10:23 copies 2:24 14:18 55:9,22 75:8 copy 15:21 55:17 55:20 57:5 75:10 correct 6:17 9:10 12:3,15 13:21 17:5 18:16 20:2 20:23,24 21:14 21:15 22:16 25:12,24 26:6 29:2,22,23 35:6 36:7 40:14 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 80 45:16,17 46:9 50:1 51:4 52:5 55:19 56:12,19 56:20 59:13,14 68:4,10 77:9,13 correcting 59:8 corrections 2:8 6:3,11 7:4,10 7:12,16,20,24 10:1,3,5 13:2 28:11,13 29:4,9 40:1,4 44:9 48:1 50:16 72:9 75:11 correspondence 2:13 42:5 43:4 corresponding 43:11 counsel 5:2,2 6:2 6:4,7,10,16,18 7:9,11,13,15,17 7:17,19,23 10:1 10:12 11:23 20:8 28:13 29:12 39:2,10 51:16,25 52:3,8 56:16 70:21,24 70:25 71:8 74:8 74:11 counsel's 51:21 counts 11:6,9 county 10:14,15 77:3 course 33:19 35:6 court 1:1 3:1,20 3:22 4:20 12:12 12:18 31:6,11 31:14 32:7 33:24,25 34:5 34:11 35:12,20 62:18 63:17 73:5 courts 14:9 Court's 35:17 cover 22:21 covered 23:4 26:11 covering 27:15 created 19:3 45:22,25 crime 9:18 Cross 11:17 cross-examinat... 73:11 current 2:8 13:1 22:21 23:17 33:22 39:8 40:13 43:1 51:8 cut 70:4,4 28:8,19 30:22 31:5,6,8,13,15 32:3,14 73:9 decisions 32:2 declare 77:12 declined 73:5 defendants 1:15 3:12,24 4:10 5:2 29:12 defendant's 35:9 degree 36:24 deleted 17:17,18 17:18,19 deliberate 49:13 demonstrated D 33:7 D 4:12 deny 35:25 47:17 date 8:14 18:22 department 6:3 24:18 47:1,8,9 6:11,21,24 7:3 47:24 75:17 7:7,10,12,16,20 76:3 7:24 10:1,3,5 dated 41:22 42:1 10:24 13:2 45:14 55:13,14 19:15,25 20:9 55:16,22 58:12 25:2,8 28:11,13 64:24 29:4,8,12 40:1 dates 59:7 40:4 44:9 47:25 Dave 58:11 50:16,25 51:5 David 1:7 3:4,23 51:10,11,12,13 4:11 28:15 30:6 51:14,15 52:7 75:3,5 76:2 53:9 66:8 72:9 David.hansen... dependent 69:12 4:18 69:14,16 day 3:15,17 deposes 5:11 28:18 60:3 deposition 1:19 77:14 3:14 5:3,16,21 days 19:6,7 38:7 8:25 12:18,19 deal 9:14 12:21 28:18 dealings 40:9,11 34:7 35:22 38:8 49:11 38:10 74:5,10 Dear 75:7 75:8 77:6,8,11 decide 18:17 deputy 6:2,6,15 20:20 48:21 52:8 50:3 describe 40:9 decided 18:11 53:15 68:16 decides 29:6 described 24:24 decision 19:17 25:17 52:18 www.midwestlitigation.com 67:6 describes 22:5,13 description 39:3 66:7 descriptions 25:11 68:23 designate 8:22 38:7,9 designated 16:10 29:11 38:8 designations 58:23 desired 75:12 determination 56:14 63:1 determine 13:25 32:25 33:10 determined 32:7 determining 30:18,20 developing 14:16 difference 7:12 21:11,11 57:1 differences 16:13 different 30:3 33:20 44:6 48:23 56:2 58:17 72:6,24 differently 16:19 16:21 difficult 38:4 direct 26:15 28:23 60:17,25 directed 18:4,5,8 29:3 48:1 direction 67:19 67:22 74:8 directions 67:25 68:2 directive 20:11 directly 30:20 director 15:12 18:15 29:8 30:6 55:16 disagree 25:15 26:22 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 disc 16:2 41:19 45:10 54:18 disclose 28:9 disclosed 27:24 28:6 disclosure 32:8 32:13 33:7,17 discovery 31:23 32:8 33:20 41:17 49:21 54:18 58:9,9 discussed 37:1 discussing 14:10 22:19 discussion 41:12 dismiss 33:23 dismissed 11:2 12:9 31:8 disposal 64:13,13 67:20 dispose 65:21 66:1 67:3,10,14 67:23 disposed 64:16 65:2 66:5,6,7 67:9,18 disposing 64:8 distinction 53:18 district 1:1,2 3:1 3:2,21,22 8:24 11:14 12:10,11 31:11 62:18 disturbed 31:14 divide 52:12 division 1:3 3:3 3:22 30:6 DOC 38:21 56:22 doctor 68:9 document 2:15 13:8,11 23:16 23:17,18,23,24 25:24 26:1 33:8 45:5,10,14,15 50:2 64:18 65:4 documents 14:13 65:11 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 81 doing 6:23 23:9 34:19 64:3 Dormire 2:19 30:6,7 36:7,9 36:13,18 43:6 46:8 47:1 58:11 Dr 2:17 22:12 55:13,14,15,21 56:18 draft 2:11 16:8 16:16,22 17:1,3 17:14 18:4,5,19 19:3 20:21 26:21 drafted 13:11,13 13:16,18 28:22 drafter 15:7 drafting 13:8 16:25 20:19 drug 17:24 18:2 18:3 43:14 50:4 72:3,22,25 drugs 26:2 29:20 30:1 37:4 38:22 46:21 48:10 65:21 66:2 72:6 73:3 duly 74:5 duties 9:25 20:7 20:8 D2 66:22,23 E E 4:1,1 earlier 36:3 49:10 72:20 easier 26:5 East 3:18 Eastern 8:11 11:14 12:10,11 effect 20:4 eight 8:3 either 7:21 11:17 65:6 71:4 Eldon 11:18 electronic 23:23 Eleventh 4:23 Elimination 52:1 Elizabeth 4:3,4 75:16 Elizabeth@car... 4:8 emergency 25:4 employed 6:1 74:9,12 employee 74:11 employees 25:2,8 enacted 16:10 enclosed 75:8,9 Enclosures 75:24 encompasses 25:17,20,23 encouraged 34:16 ended 57:4 enforceable 31:15 engaged 43:3 entire 51:10,13 51:14 60:18 entitled 33:3,4 entity 48:24 err 38:13 errata 75:9,12,15 76:1 established 60:24 et 1:7,13 3:4,10 3:23,24 75:5,6 76:2,2 event 28:21 47:22 everybody 5:21 evidentiary 33:21 exact 60:10 exactly 19:12 31:24,25 48:25 50:11 EXAMINATI... 5:12 examined 3:15 5:10 www.midwestlitigation.com example 22:17 70:1 excuse 37:6 execute 43:15 72:4,22 executed 56:11 56:15 60:4,4 61:13 77:14 execution 2:9,11 13:1,12,15 16:9 16:11 17:24 19:15 20:9,17 21:14,18,22,25 22:3,6,9,13,15 23:3 24:21 25:7 25:10 27:16 29:7,20,21 30:15,21 32:10 37:4 44:13,16 44:18 48:10 52:9 54:7,9 58:14 59:25 60:20,24 61:6,8 61:11,14 63:17 64:15,25 66:15 67:1 68:19 70:2 70:6 executions 52:14 54:11 64:9,12 exhibit 12:17,22 15:14,16 16:7 16:13,14,25,25 17:1,3,4,7,8,8 18:5,19 20:21 20:22 21:11,12 22:23 23:17,24 25:11,11,16,22 25:23 26:6,21 27:19 28:22,22 28:24 41:6,13 41:16 44:24 45:1 49:17,18 49:24 54:13,14 54:17,22 55:10 55:11,12 57:21 57:25 58:8 64:19,21,23 66:22,23 72:11 exhibits 2:5,23 12:21 14:10 54:25 existed 28:2 existence 45:18 expert 52:19,21 52:22 Expires 77:24 explain 66:5 explore 49:10 expressly 5:6 31:8 extent 69:4,5 e-mails 42:1 F fact 56:9 68:22 fair 35:14 47:16 familiar 29:18 far 33:20 34:8 45:22,24 Farmington 10:14 favor 11:2 February 46:16 46:17 47:14,21 Federal 12:12 Ferguson 58:14 59:6 72:11 Ferguson's 73:3 fifth 41:25 fighting 12:20 figured 30:17 figuring 12:20 file 55:21,23 filed 8:25 10:13 23:16,17 33:25 39:14 47:11,14 47:20 49:3 filing 75:16 filings 14:10,10 filled 66:11 financially 74:12 find 14:22 46:5 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 48:1 75:8 fine 9:2,16 49:15 finish 30:24,25 31:1 firm 23:1 first 10:8 12:6 13:12 17:1 24:13 25:16 27:12 34:25 41:20,22 50:12 52:13 55:12 59:1 65:20 Flaherty 11:18 Florida 14:23 followed 62:10 foregoing 74:5 77:6,13 forenoon 3:16 forget 10:14 11:16 50:13 forgotten 28:12 form 19:19 29:14 33:7 36:21 37:5 37:6 44:14 60:21 77:7 formated 16:18 formatted 16:21 former 30:21 39:8 forms 51:24 65:7 foundation 60:22 four 6:8,16 9:24 16:15,16 52:6 52:13 54:21 fourth 12:14 41:24 55:21 frame 18:21,23 19:6 44:16 Francis 10:17 Francois 10:15 Franklin 29:21 56:6,7 61:21 62:3,16 64:25 67:6 70:7 72:7 72:25 Franklin's 64:15 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 82 66:2 frankly 32:23 34:10 55:24 friend 11:18 full 6:13 69:18 fuller 34:12 fully 68:17 function 24:21 24:23 58:19,20 61:20 63:2 functions 22:14 further 49:12 73:6,10 74:10 F1 67:2 60:22 63:6 65:17 72:15 goes 58:20 going 5:20,24 8:17,20 9:2,6 12:19 15:13 20:25 23:16,19 27:25 29:6,10 32:16 33:12 34:8,9,23 36:21 37:5,7,18 39:4 39:7,19 40:23 43:16,22 44:14 62:21 71:11 72:13,18 G governor 20:22 general 6:2,4,7 20:25 6:10,16,18 7:13 governor's 19:3 7:15,17 20:8 graduate 8:12 28:13 39:1,10 graduated 8:8 51:15,21,25 grams 13:25 52:3,8 56:5 45:16 60:11,17 granted 31:7 generally 17:21 32:6 71:20 Greg 2:17 55:13 General's 4:14 55:14,15,21 7:25 27:19 guardian 11:17 50:15,19 51:1 guess 20:21 60:25 61:10,25 34:15 46:20 75:3 49:25 51:20 George 1:13 3:10 53:14,16,20,23 3:23 55:16 75:5 54:4 62:23 76:2 63:11 65:10 Georgia 14:23 69:4 71:11,14 give 7:2 11:22 H 13:23 18:22 handed 41:15 33:12 38:6 46:12 47:8 57:13 58:7 57:14 60:10 handwritten 56:2 given 20:11 hang 24:1 67:11,22 giving 46:25 Hansen 4:11 go 8:6 31:17 35:1 8:20 9:2,6,10 9:16 13:4 15:18 38:13,18 43:22 15:20,23 16:5 47:2 48:20 49:17 59:21 19:19 23:20,23 www.midwestlitigation.com 24:3,16 26:5,25 27:25 28:16,17 28:19 29:14,17 30:10,12,18,24 31:2,24 32:20 33:6,13 34:10 34:21 35:6,15 36:2,21 37:5,18 37:22 38:1,12 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indicates 55:19 indifference 49:14 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 individual 10:19 42:1 individuals 22:24 25:21 28:23 67:19,23 inference 31:23 information 21:5 30:12,13,19 31:3,13 32:4,7 32:9,11,21 33:8 33:12,14,18 34:2 36:10,15 50:7 57:1 63:12 initial 37:10 43:17 initially 40:10 inject 25:8 injectable 45:16 45:19 injected 66:12 injection 25:4,6 28:25 42:9 input 13:18 inquiry 37:14 39:13 49:2 insert 53:1 inserting 53:3 inserts 25:5 inspect 37:16 38:16 instance 65:24 70:9 institution 60:6,8 62:7,12 69:7 instruct 15:9 intending 35:19 interested 74:13 intravenous 25:5 53:1,4 inventory 65:6,8 investigate 40:25 41:3 involved 19:17 28:8 49:20 54:10 involvement 13:7 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 83 20:17 21:10 in-house 7:16 issuance 27:19 issue 33:19,20 34:1,11,23 35:12,20 issues 31:9 71:19 14:20 18:22 20:18,25 21:24 24:4 29:13 32:16 33:1,4,21 33:22 37:3,9 38:24 39:3,24 40:2 43:1 45:3 45:23,24 47:6 J 47:17,18,23 jacket 41:7 48:9,13,17,22 Jackson 38:24 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manufacturer 22:18 March 1:21 3:15 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 7:2 46:15 58:10 58:12 75:2,8 76:3 mark 9:3 44:25 marked 9:4 12:17,22 15:16 17:16,17 41:13 41:16 45:1 54:14,20,25 57:9,21,25 58:5 58:8 64:19 marking 12:25 markings 56:2 Markway 2:17 55:13,14,16,21 56:18 materials 65:11 Matt 5:15 55:20 55:22 matter 52:19,21 52:22 MATTHEW 1:19 3:14 5:3,9 75:8 76:1 77:5 77:20 MB 2:6 12:19 MB1 12:20,25 25:11 MB3 15:18,19 16:7 MDOC 48:14 mean 17:22 19:1 20:6,11 24:13 29:16 46:5 56:25 60:3 69:5 71:12,13 means 18:23 50:24 medical 25:1,4 56:8 66:25 67:3 67:11,14,17,21 68:11 meetings 70:11 member 21:13 21:16,17,22 22:5,13 23:3 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 84 30:14,21 44:13 44:18 66:8 members 21:24 22:3,8,14 24:21 25:7,10 32:10 memo 55:12,14 55:15,21 memorandum 2:19 58:11 memos 2:17 56:5 mention 26:2,13 26:15,19 27:7 message 61:9,24 method 17:24 35:10 methods 14:22 Michael 4:13 43:15 44:2 72:4 72:22 midazolam 18:2 Midwest 4:22 75:1 migrated 57:24 mind 23:10 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9:1 45:8 numerous 11:6 nurse 25:2,4 59:13 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 7:5,11,19,23 8:4,14 9:4,11 9:13 10:7,18,22 11:1,3,7,19 12:1,11,13,16 13:3,12,19,22 13:24 14:5,12 14:19 15:6,9,13 16:20,23 17:3,6 17:15 18:1,4,7 18:11 20:13 21:10 22:25 23:6 24:6,11,12 24:13,20 25:10 25:15,19 26:9 26:19 27:1,7,18 27:23 28:3,4,8 28:17,21 29:10 29:17,19 30:5 32:22 35:16 36:4,9 38:11,24 39:13,21 40:16 43:22 45:6,21 46:7,18 47:8,25 49:20 50:3,10 51:2,17,19 52:3 52:9,12,16 53:22 54:2,8,12 55:6 56:17,25 57:6 58:7 59:5 59:12,16,23 60:8,19 61:1,4 61:6,12 62:16 63:14,23 64:2,7 67:5,13 68:14 68:25 69:21 70:13,18 71:10 71:17 Oklahoma 14:21 36:1 39:2,11 46:19,20 once 59:22 70:13 70:14 ones 15:3,3 57:20 69:21 opportunity 71:7 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 85 options 69:13,16 order 36:14 38:6 65:5 original 2:23 37:19 39:5,7,22 40:24 44:20 46:23 48:5,11 49:7 58:4 59:18 75:9 outcome 11:1 74:13 outlining 17:14 o'clock 3:16,17 P P 4:1,1 page 2:2,6 17:16 23:8,19 24:5 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40:17 prescription 26:11,14,17 prescriptions 40:17 present 34:11 67:22 presentment 73:13 presume 18:14 previous 13:18 13:20 26:21 42:3,17 previously 63:9 print 24:5 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 prior 18:20,25 19:1,1 21:12 27:18 40:3 60:24 61:10 75:17 prison 51:25 69:16 prisoner 25:5,9 56:14 66:25 68:18,23,25 69:12,14,16 prisoners 68:15 69:10 privilege 28:1 31:3,9,12,16,18 privileged 8:18 31:19 32:12 63:6 privileges 33:21 privy 71:18 pro 11:5 proactive 34:19 probably 5:18 19:2,3,18 34:11 44:22 51:13 52:18 problem 9:5 problems 34:17 procedure 29:1 Procedures 51:24 proceed 34:13 proceedings 1:22 process 20:18 30:4,5 31:20,23 32:24 36:5,10 52:9 54:6,9 62:9,11 64:8 66:6,11,18 67:6 67:15 produced 3:15 5:10 65:8,11 product 49:25 professional 39:14 49:3 project 18:6,7 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 86 19:8,10,12 properly 67:3 propofol 13:20 19:5,18 21:6,18 21:25 23:7 27:24 28:6 protect 31:5,13 protected 31:3 32:7,13 33:15 Protective 38:6 protects 9:1 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43:13 relative 74:11 relay 62:4 relaying 61:9,24 relevance 33:19 33:20 relevant 32:4,11 34:3 35:12 49:13 reliability 37:14 48:7 relief 32:6 remained 21:6 remember 15:3 47:4 65:8 remind 71:23 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 removed 16:22 16:23,24 17:7 render 77:9 renumbered 17:9 renumbering 17:10 reorganize 57:15 repeated 34:24 replevin 9:25 10:8,22 11:20 report 51:15,18 51:20 52:4 reporter 3:20 4:20 5:5 12:18 42:17 74:1,3 reports 44:2 51:25 52:1 72:4 72:23 represent 47:20 represented 50:13,19,25 represents 50:16 request 58:13 requested 71:4 72:11 requests 49:25 require 8:24 requirements 20:10 requires 62:24 research 14:3,6,9 37:13 48:6 reserved 5:7 73:14 resolution 73:8 respect 13:24 62:16 63:14 67:6 69:10 72:20 response 35:9 62:23 responsible 53:24 61:4,7,9 61:24 62:13 responsive 58:24 Fax: 314.644.1334 MATTHEW BRIESACHER 3/21/2014 Page 87 rest 43:23 restricted 70:4 restructured 51:5 result 52:10 return 19:4 75:15 returned 10:25 returning 19:5 reveal 33:15 36:25 38:3 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