uin SWEENEY LOURT wt. 2.3-, 335 MONTANA FIRST JUDICIAL DISTRICT COURT LEWIS AND CLARK COUNTY RONALD ALLEN SMITH and Cause No. WILLIAM GOLLEHON, Plaintiffs, FINDINGS OF FACT, CONCLUSIONS OF LAW V. AND ORDER STATE OF MONTANA, DEPARTMENT OF DIRECTOR MIKE WARDEN LEROY and JOHN DOES 1-20, Defendants. INTRODUCTION Before proceeding, it important to clarify the nature of this case. This Court has not been asked and will not make a determination as to whether lethal injection of the Plaintiffs constitutes cruel and unusual punishment. This case is not about the constitutionality or appropriateness of the death penalty in Montana. This case is not about whether the use of pentobarbital in a lethal injection setting is cruel and unusual or if pentobarbital in the doses contemplated by the State of Montana 658? would produce a painless death. Further, this case is not about the availability of pentobarbital or any other drug. This case is only about whether the drug selected by the Department of Corrections to effectuate the Plaintiffs? lethal injections, pentobarbital, meets the legislatively required classi?cation ofbeing an ?ultra-fast acting barbiturate.? This Court rules that pentobarbital is not an ultra-fast-acting barbiturate. The State of Montana will either need to select a barbiturate that is ultra-fast acting to accomplish the execution of Plaintiffs or it will need to modify its statute as will be detailed below. From the testimony and evidence presented, the Court enters the following: FINDINGS OF FACT Trial in this matter was held on September 2 and 3, 2015. Representing Plaintiffs were Ronald F. Waterman, James Park Taylor, and Gregory A. Jackson. Representing the State of Montana were C. Mark Fowler, Pamela P. Collins, Jonathan M. Krause, and Robert Stutz. The Court received numerous exhibits and heard from two witnesses, Dr. Mark Heath and Dr. R. Lee Evans. Jurisdiction and venue are proper in this Court. Plaintiff Ronald Allen Smith, an inmate at Montana State Prison, has been sentenced to death for the killing of two young men in 1982. Plaintiff William J. Gollehon, an inmate at Montana State Prison, has been sentenced to death for the killing of another inmate at Montana State Prison in 1990. MN FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - page 2 The Montana Supreme Court has upheld the death sentences of both Plaintiffs. State v. Smith, 280 Mont. 158, 931 P.2d 1272 (1996); State v. Gollehon, 262 Mont. 1, 864 P.2d 249 (1993). Session law 1983 Montana Laws chapter 411 enacted lethal injection as an option for the execution of prisoners sentenced to death. That provision introduced the phrase ?ultra-fast-acting barbiturate? into Montana Code Annotated 46-19-103. As of March 19, 1997, lethal injection became the sole method of execution of a sentence of death. Montana Code Annotated provides: ?[t]he punishment of death must be inflicted by administration of a continuous, intravenous injection of a lethal quantity of an ultra-fast-acting barbiturate in combination with a chemical paralytic agent until a coroner or deputy coroner pronounces that the defendant is dead.? The current Execution Technical Manual (ETM) was adopted on January 16, 2013. (See P1.?s Ex. 1.) The two-drug protocol is referenced on pages 41, and 50 through 53 of the current ETM. There it is indicated that sodium pentothal and pancuronium bromide will be used in the execution. At page 51, it is indicated that these drugs may be substituted by another drug based on availability. It is Speci?cally provided that pentobarbital with a dosage of 5 may be substituted for sodium pentothal. Further, rocuronium bromide with a dosage of 1,000 may be substituted for pancuronium bromide. The State of Montana is the only state that speci?es that the death penalty be accomplished by an ?ultra-fast-acting barbiturate.? The other states employing the death penalty either specify a particular drug to bc uscd or merely state that execution is to take place by means of lethal injection. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - page 3 The only issues remaining in this case are what the Montana legislature meant by using the words ?ultra-fast?acting barbiturate? in Montana Code Annotated 46-19- 103, and whether pentobarbital is an ultra?fast-acting barbiturate within the meaning of Montana Code Annotated 46-19-103. Pentobarbital and thiopental are included in the class of drugs known as barbiturates. At trial, the ?rst witness was Dr. Mark Heath. His curriculum vitae was received as Plaintiff 5 Exhibit 8. Dr. Heath is a practicing anesthesiologist in New York at the Columbia Medical Center and also teaches medicine at the Columbia School of Medicine. Dr. Heath is a Board Certi?ed Anesthesiologist and has written extensively on lethal injection. He has testi?ed before various courts and legislatures, and has written articles and book chapters about lethal injection. Dr. Heath has also extensively studied various types of lethal injection, by reviewing witnesses descriptions, execution logs, publications, and electroencephalogram results of people who have been executed by means of lethal injection. All of Dr. Heath?s opinions, which will be cited below, were given with a reasonable degree of medical certainty. The bottom line for Dr. Heath is that pentobarbital the drug selected by the Montana Department of Corrections is not an ultra?fast?acting barbiturate. Barbiturates were ?rst created in the 19303 and, as a class, share a certain common core ring of molecules. In general, barbiturates are weak acids that are absorbed and rapidly distributed to all tissues of the human body. Barbiturates are known by their lipid solubility. Barbiturates possessing more lipid solubility distribute more rapidly to the human brain. The basic core ring of barbiturate molecules has been modi?ed over the years, and those modi?cations affect how certain barbiturates operate. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - page 4 Experts speak of ?vein-to-brain time,? which is the amount of time it takes a barbiturate injected into the blood stream to transit to the human brain. In addition, there is a ?blood-brain barrier.? This is a grouping of cells and capillaries around the human brain that prevent toxins from entering the brain. Certain modifications to the basic barbiturate structure have allowed a rapid transfer through the blood-brain barrier. According to Dr. Heath, it is often important to have a very quick transition from consciousness to unconsciousness, quickly penetrating the blood- brain barrier, which allows physicians to take control Of a patient?s breathing to prevent negative consequences from occurring as a patient enters unconsciousness. According to Dr. Heath, this is the purpose of the development of ultra-fast?acting barbiturates. Barbiturates are traditionally classi?ed as long?acting (phenobarbital), medium-acting (such as pentobarbital), short-acting (secobarbital), and ultra?short- acting (thiopental). (See Test. Dr. Mark Heath; P1.?s Ex. 4, Margaret Wood, Alistair .J . Wood, DRUGS AND AN ESTHESIA PHARMACOLOGY FOR ANESTHESIOLOGISTS (2d. ed.,Williams Wilkins); see also Pl.?s Ex. 5, Ronald D. Miller, ANESTHESIA, 6th ed. (2005). According to Dr. Heath and the ultra?short?acting drugs are thiopental, methohexital, and thiamylal. By using terms such as short-acting or ultra-short?acting, the classi?cation system refers to the duration of action or how long the barbiturate exercises its control over the human body. As noted by Dr. Heath, there is another classi?cation of barbiturates which refers to the onset of action of the barbiturate or how soon the maximum effect is felt by the body. According to Dr. Heath, there is a correspondence between the two FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - page 5 systems, and the terms ultra-fast and ultra-short refer to the same type of barbiturates, as do the terms fast and short, and as do the terms slow and long. - Putting this in a tabular form, we ?nd the following: 1. Ultrafast acting Ultrashort acting thiopental, thiamylal, methohexital Fast acting Short acting secobarbital, pentobarbital Intermediate acting Intermediate acting pentobarbital* 4. Slow acting Long acting phenobarbital Some systems combine #2 and #3 into one group of intermediate acting drugs) Rebuttal Expert Disclosure, at 4 (June 25, 2013).) According to Dr. Heath, pentobarbital is either classi?ed ?fast,? ?short,? or ?intermediate.? Pentobarbital is not used as an anesthetic, according to Dr. Heath, because its effects last too long. Rather, pentobarbital is commonly used in pill form as a treatment for epilepsy and is also used to induce comas in already unconscious patients. Pentobarbital in the doses suggested in Montana?s ETM would undoubtedly cause the death of the inmate. Dr. Heath has used, in a clinical setting, both pentobarbital and thiopental. Dr. Heath has never heard, prior to this case, any reference to pentobarbital being classi?ed as being ultra?fast acting. According to Dr. Heath, the operation of thiopental and pentobarbital is noticeably different. Dr. Heath testi?ed that an administration of thiopental causes a ?lights out? effect, where a patient is unable to complete the thought that was in their mind upon the administration of the drug. A patient receiving thiopental would take one or two breaths before the drug exerted its control over the patient. Heath also opined that an individual given pentobarbital would breathe longer, would have various body movements, and would slur words before the pentobarbital took effect. Heath testi?ed that a patient given pentobarbital FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - page 6 would physically be able to appreciate the accrual ofsleepiness or unconsciousness, while a patient given thiopental would not. Of signi?cant import to the Court is the manufacturer?s insert provided for pentobarbital. (See Ex. 7, manufacturer?s insert for Nembutal Sodium Solution (the manufacturer?s name for pentobarbital).) At page one, the insert states Sodium is a short?acting barbiturate.? This comports with the classi?cation stated by Dr. Heath. Plaintiffs Exhibit 11 contains a compilation of a search engine results completed by Dr. Heath. His research shows that there were 28,600 results produced for a description of thiopental as an ultra-short?acting barbiturate. An additional 42 results were returned for the search phrase of thiopental being an ultra-fast-acting barbiturate. On the other hand, the search engine reported one ?nding for pentobarbital being an ultra-short?acting barbiturate, and a single ?nding of pentobarbital being an ultra-fast-acting barbiturate. (P1.?s Ex. 11, at 3.) The State produced the testimony of Dr. R. Lee Evans, a doctor of pharmacy and Dean of Pharmacy at Auburn University. In Dr. Evans? original declaration ?led in March 2015 and received into evidence as Plaintiff?s Exhibit 9, he is ?not aware of the origin of the term ?ultra-fast acting.? Ex. 9, at 6, 14.) According to Dr. Evans, pentobarbital could be considered short acting, and thiopental, ultra-short acting. Dr. Evans opined that there is no meaningful difference between pentobarbital and thiopental in the time it takes to render a person comatose. at 7, 1i 15.) However, Dr. Evans noted that onset of action for pentobarbital is under a minute, while for thiopental, the onset of action could be ten to forty seconds. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - page 7 Until the trial of this action, Dr. Evans had not testi?ed that pentobarbital was an ultra-fast-acting barbiturate. He did so testify at trial. However, the Court struck that conclusion because it did not comport with his prior discovery responses or declarations ?led with the Court. (See Pl.?s Exs. 9, 10.) At the trial of this matter, Dr. Evans indicated that the onset of pentobarbital was under one minute. However, on December 10, 2012, Dr. Evans indicated ?[t]hiopental is an onset of about a half to one minute, duration of a little less than 30 minutes. Pentobarbital is onset three to four minutes with a duration that is somewhat longer, That?s the primary difference.? Ex. 14, Pardo v. Palmer, Case No. 3: (MD. F1. Dec. 10, 2012), Test. Roswell Lee Evans, Jr., at This testimony stands in stark contrast to what Dr. Evans stated at the trial this matter. Dr. Evans pointed out that there is no question that pentobarbital is fast acting. For example, Plaintiff?s Exhibit 7 the package insert for pentobarbital indicates that ?the onset of action ranges from almost immediate. . . (Pl.?s Ex. 7, at 2.) See also Defendant?s Exhibit L, a TOXNET reference which indicates that the onset of thiopental and pentobarbital is ?almost immediate. (Deffs Ex. L, at 16.) TOXNET is a collection of databases operated by the National Library of Medicine. See also Defendant?s Exhibit N, a Drugs.com reference which indicates that the onset of pentobarbital is immediate. (Def?s Ex. N, at 1.) Thus, there is no question that pentobarbital is fast acting. The question remains as to whether it is ultra-fast acting. Dr. Evans did cite to references that indicate that if the onset of action of a drug is less than a minute, it can be considered ultra-fast acting. (See, Pl.?s Ex. Q, TOXNET reference, at 12; Pl.?s Ex. R, Micromedic reference, at 4 (?ultra-fast acting has an onset of one minute or less.).) The Court notes that at page 1 of Exhibit R, pentobarbital is listed as being ?short acting,? not ultra-short acting. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - page 8 These references to pentobarbital being ultra-fast acting are consistent with Dr. Heath?s ?nding sources refer to pentobarbital as being ultra?fast acting However, that must be compared with the greater weight of authority that indicates that pentobarbital is not in the class of drugs considered to be ultra-fast acting. Dr. Evans did indicate that, in his opinion, pentobarbital and thiopental are almost identical. Both, in his current opinion, reach maximum effect in less than one minute?s time. However, Dr. Evans did acknowledge that thiopental is a little quicker to get to the brain because pentobarbital is not as lipid soluble. In making its decision, this Court has had to weigh the evidence presented by Dr. Evans versus Dr. Heath. Supporting Dr. Heath?s testimony are standard pharmacology for anaesthesiologists textbooks Exs. 4, 5) and Dr. Heath?s own consistent testimony. Also supporting Dr. Heath?s position is the signi?cant research that classi?es thiopental as being ultra-short acting (ultra-fast acting) and not so classifying pentobarbital, except for a few scattered references. (See Pl.?s Ex. 11.) Also of utmost import is the manufacturer?s insert for pentobarbital Ex. 7), which classifies pentobarbital as a short?acting barbiturate. Also crucial in this weighing the Court has undertaken is the fact that in the Pardo v. Palmer case, in testimony given not three years ago, Dr. Evans testi?ed that pentobarbital?s onset of action is three to four minutes as opposed to the less than one minute referred to in his testimony in this case. This is not to in any way insinuate that Dr. Evans is not a credible witness. However, it is a factor when weighing the evidence which shows by a relatively overwhelming nature that, while pentobarbital may operate in a fast nature, it is not ultra-fast as is required to comply with Montana?s execution protocol. Thus, through this weighing process, this Court concludes that pentobarbital is not an ultra? fast-acting barbiturate. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - page 9 From the foregoing Findings of Fact, the Court enters the following: CONCLUSIONS OF LAW 1. Jurisdiction and venue are proper in this Court. 2. By using the limiting term ?ultra? in the phrase ?ultra-fast?acting barbiturate? in Montana Code Annotated 46-19-1030), the legislature limited the State of Montana to using only drugs in the fastest category of barbiturates, namely thiopental, methohexital, and thiamylal. Under the express terms of the statute, the State of Montana is not allowed to use the ?fastest acting barbiturate available,? or a ?relatively fast-acting barbiturate,? only an ?ultra-fast-acting barbiturate,? meaning drugs from the fastest class of barbiturates. 3. Had the legislature intended to give the State of Montana latitude in what drugs to use, it could have used much more general language in the statute authorizing execution, as many other states have now done. Pentobarbital cannot properly be classi?ed as ?ultra-fast-acting,? since there is another class of drugs that is faster. Whether those drugs are currently available is not an issue the Court can resolve for the State. The State?s remedy is to ask the Legislature to modify the statute to allow the use of pentobarbital or other slower acting drugs. 4. The State of Montana has modi?ed the execution protocol several times during this litigation and has had many opportunities to return to the legislature to modify the language which limits the State of Montana t0 ?ultra-fast-acting barbiturates,? but has chosen not to. 5. Courts may not legislate through judicial interpretation of statutes. Albinger 12. Harris, 2002 MT 113,1l 38, 310 Mont. 274, 8 P.3d 711 (It is not the province of this court or any other court to assume to legislate by judicial interpretation, and to create in favor of any individual or any class of people an FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - page 10 exception to the limitation set by the legislature). A court cannot second-guess and substitute its judgment for that of the legislature or insert what has been omitted. State Bar ofMom?. v. Krivec, 193 Mont. 477, 481, 632 P.2d 707, 710 (1981). Indeed, Montana law regarding statutory interpretation begins with Montana Code Annotated l-2-101, which states: [i]n the construction of a statute, the of?ce of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.? ln Montana Code Annotated 46-19-103, the legislature mandates use of an ?ultra-fast?acting barbiturate,? and the Department of Corrections plan to use a drug which is, without dispute, not classi?ed as an ultra-fast-acting barbiturate. Given these facts, the Court must ?nd an impermissible inconsistency between the legislative mandate and the Department of Corrections? exercise of that mandate. Scrupulous adherence to statutory mandates is especially important here given the gravity of the death penalty. Accord In re Ohio Execution Protocol Litigation, 840 F. Supp. 2d 1044 (SD. Ohio 2012) From the foregoing Findings of Fact and Conclusions of Law, the Court enters the following: ORDER The State of Montana is hereby ENJOINED from using the drug pentobarbital in its lethal injection protocol unless and until the statute authorizing lethal injection is modi?ed in conformance with this decision. DATED this?day of October 2015. District Cou Judge FINDINGS 0 FACT, CONC SIGNS OF LAW, AND ORDER - page 11 pcs: Jim Taylor Ronald F. Waterman Gregory A. Jackson Michael Donahoe Timothy C. Fox/C. Mark Fowler/Pamela P. Collins/Jonathan M. Krauss, Robert Stutz TU Slsmith mdoc- fco.wpd FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER - page 12