DAVE DORMIRE 1/15/2014 Page 1 1 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI 2 CENTRAL DIVISION 3 4 DAVID ZINK, et al., ) ) 5 Plaintiffs, ) ) No. 2:12-CV-4209-BP 6 vs. ) ) 7 GEORGE A. LOMBARDI, et al., ) ) 8 Defendants. ) 9 10 DEPOSITION OF DAVE DORMIRE Taken on behalf of the Plaintiffs 11 January 15, 2014 12 Julie K. Kearns, CCR 993 13 14 15 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 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 1 of 174 DAVE DORMIRE 1/15/2014 Page 2 1 QUESTIONS BY: PAGE 2 Ms. Carlyle 3 Mr. Hansen 140 4 Ms. Carlyle 143 10 5 6 INDEX OF EXHIBITS 7 PAGE 8 9 1 - CD of discovery provided 1/9/14 5 10 2 - CD of discovery provided 12/27/13 6 11 5 - Page 8 of Exhibit 13 of Amended Complaint 65 12 6 - Page 7 or Exhibit 13 of Amended Complaint 71 13 7 - Affidavit of Dave Dormire 14 8 - Bates pages AGO002405 and AGO00247 26 15 9 - Bates pages AGO002587 and AGO002680 26 111 16 17 (Whereupon the exhibits 1, 2, 5, 6 and 7 were 18 attached to the original and copies. 19 and 9 retained by counsel.) Exhibits 8 20 21 22 23 24 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 2 of 174 DAVE DORMIRE 1/15/2014 Page 3 1 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI 2 CENTRAL DIVISION 3 4 DAVID ZINK, et al., ) ) 5 Plaintiffs, ) ) No. 2:12-CV-4209-BP 6 vs. ) ) 7 GEORGE A. LOMBARDI, et al., ) ) 8 Defendants. ) 9 10 DEPOSITION OF DAVE DORMIRE, produced, sworn, and 11 examined on the 15th day of January, 2014, between the 12 hours of one o'clock in the afternoon and seven o'clock in 13 the evening of that day, at Missouri Department of 14 Corrections, 2729 Plaza Drive, Jefferson City, Missouri, 15 before Julie K. Kearns, a Certified Court Reporter within 16 and for the State of Missouri, in a certain cause now 17 pending before the Circuit Court of the County of St. 18 Louis in the State of Missouri, wherein DAVID ZINK, et al. 19 is the Plaintiff, and GEORGE A. LOMBARDI, et al. is the 20 Defendant. 21 22 23 24 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 3 of 174 DAVE DORMIRE 1/15/2014 Page 4 1 A P P E A R A N C E S 2 3 4 For the Plaintiffs: Elizabeth Unger Carlyle, Esq. ELIZABETH CARLYLE LAW OFFICE 5 6011 OAK STREET Kansas City, Missouri 64113 6 7 8 For the Defendants: David Hansen, Esq. Michael Spillane, Esq. 9 Susan Boresi, Esq. MISSOURI ATTORNEY GENERAL'S OFFICE 10 211 West High Street Jefferson City, Missouri 65102 11 12 13 The Court Reporter: Ms. Julie K. Kearns Midwest Litigation Services 14 3432 West Truman Boulevard, Suite 207 Jefferson City, Missouri 15 65109 (573)636-7551 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 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 4 of 174 DAVE DORMIRE 1/15/2014 Page 5 1 IT IS HEREBY STIPULATED AND AGREED, by and 2 between counsel for Plaintiff and counsel for Defendant, 3 that this deposition may be taken in shorthand by Julie K. 4 Kearns, a Certified Court Reporter, and afterwards 5 transcribed into typewriting; and the signature of the 6 witness is expressly reserved. 7 * * * * * 8 (Deposition started at 1:21 P.M.) 9 (Witness sworn.) 10 MS. CARLYLE: Okay. Before we -- before I begin 11 to question Mr. Dormire, let me see if I can -- if we can 12 get the reporter to mark Exhibit 1, which is a CD 13 containing discovery provided to plaintiffs by defendants 14 on Joe -- I believe it was sent July 9 and received 15 July 10. 16 17 Here it is. It's the one you sent me. MR. HANSEN: Okay. word that that contains what we -- 18 MS. CARLYLE: 19 MR. HANSEN: 20 21 I mean, I will take your Okay. You know, obviously it's going to be -MS. CARLYLE: If you want to look at it, it is, 22 in fact, the disk you sent me and it's read only, but I 23 can't have done anything to it. 24 MR. HANSEN: 25 But I didn't -- All I'm saying, for the record, is I have not -- we haven't opened this disk up, we haven't www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 5 of 174 DAVE DORMIRE 1/15/2014 Page 6 1 looked at the entire disk. 2 your representation that this is that very disk, so -- 3 MS. CARLYLE: 4 MR. HANSEN: 5 I have no reason to dispute Okay. -- with that understanding, I'll acknowledge that that is what's been marked as Exhibit 1. 6 MS. CARLYLE: 1. 7 (Exhibit No. 1 marked for identification.) 8 (Off the record.) 9 MR. HANSEN: Back on the record. Just to be 10 clear I think you had said that that disk was sent to you 11 on -- plaintiffs on July 9 of this year, which obviously 12 is not possible. 13 14 You meant January 9; is that correct? MS. CARLYLE: I did, indeed. It was sent on January 9 and received on January 10. 15 MR. HANSEN: 16 MS. CARLYLE: Correct. Yeah. And Exhibit 2 is listed on 17 my list here as a disk containing the documents provided 18 on -- goodness. 19 there. 20 discovery -- okay. 21 December 30, 2013 -- on December 27, 2013, Ms. Boresi 22 handed me a disk containing discovery documents. 23 Subsequently, based on the Court's order of December 30, 24 2013, that disk was returned to the Department of 25 Corrections. I have no idea why I said 12-17-2004 on That was late last night. www.midwestlitigation.com This was a disk of Let me start over here. On Actually, she handed me two and both of them MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 6 of 174 DAVE DORMIRE 1/15/2014 Page 7 1 2 have been returned. Today I have been told that that disk will be 3 reissued with its original page numbers, but that 4 redactions have been made on documents that were not 5 present on the previous disk. 6 hoping that that disk will be available today and if it 7 is, it will be Exhibit 2. 8 what we have been talking about, Mr. Hansen? 9 MR. HANSEN: The disk that -- and we are Is that a fair statement of It is. I just want to clarify the 10 record a little bit as well. 11 that was made by the Department of Corrections on 12 December 27 was withdrawn and it was destroyed by our 13 office and I believe the plaintiffs were directed to 14 destroy their copies as well. 15 MS. CARLYLE: 16 MR. HANSEN: The production of documents Return or destroy, basically. The Department of Corrections then 17 went through those documents to ensure that all the 18 confidential information that should have been redacted 19 was, in fact, redacted and we then produced another set of 20 documents on -- which is the disk that you have identified 21 as Exhibit 1. 22 Two days ago, I believe it was two days ago, 23 Mr. Luby sent a letter expressing some concern that there 24 were fewer pages or there were pages missing on the second 25 set that were on Exhibit 1. www.midwestlitigation.com We conducted an inquiry to MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 7 of 174 DAVE DORMIRE 1/15/2014 Page 8 1 see whether that was the case. 2 to the plaintiffs earlier this morning and as I explained 3 by telephone to Miss Carlyle last night and to Mr. Luby 4 yesterday, it was determined that the reason for the 5 different number of pages was that, in going through the 6 documents a second time, they identified duplicates and 7 blank pages and removed those pages, which resulted in a 8 different number of pages being produced. 9 As I explained by e-mail In order to alleviate any concerns the 10 plaintiffs may have that some documents were missing, the 11 Department of Corrections last night went through the 12 original set that was produced on December 27, redacted 13 what was necessary in that set and we then have produced 14 that set for plaintiffs here this morning. 15 You -- we won't mark it as an exhibit, but you 16 have those pages, which are identified as pages beginning 17 with AG000639 all the way through AG002514. 18 produced a hard copy of all those documents today and then 19 we are working on right now scanning all those documents 20 so that they will be on a disk which will be provided to 21 you hopefully before the close of the deposition today, 22 and that disk is the disk that you are going to mark as 23 Exhibit 2; is that correct? 24 25 MS. CARLYLE: That's correct. So we I guess I have one question for you because I'm a little confused. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 I Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 8 of 174 DAVE DORMIRE 1/15/2014 Page 9 1 thought you said that the original discovery was withdrawn 2 and destroyed and then you said that you reviewed the 3 original discovery in order to make further redactions and 4 I'm a little confused about what it was that was destroyed 5 and what you then rereviewed a couple of days ago. 6 MR. HANSEN: I said -- to be clear, I said that 7 our office destroyed the redacted copies. 8 General's Office destroyed and deleted the files that we 9 had. 10 MS. BORESI: The electronic copy. 11 MR. HANSEN: The electronic copy. So the Attorney The 12 Department of Corrections did maintain that original -- 13 that original Bates-stamped numbered production that was 14 produced and then withdrawn. 15 MS. CARLYLE: 16 MR. HANSEN: Okay. So they had the disk, they had the 17 ability then to just print that off again, go through it 18 and redact it. 19 the same pages, the same documents that were produced on 20 December 27 but then withdrawn. 21 So it is the -- it is the same -- they are MS. CARLYLE: 22 Thank you. DAVE DORMIRE, 23 of lawful age, being produced, sworn and examined on 24 behalf of the Plaintiffs, deposes and says: 25 www.midwestlitigation.com EXAMINATION MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 9 of 174 DAVE DORMIRE 1/15/2014 Page 10 1 QUESTIONS BY MS. CARLYLE: 2 3 Q. Okay. Mr. Dormire, I think we're now finally ready for you. 4 A. Sure. 5 Q. And as you know, I've taken your deposition 6 before and I think got some pretty -- some basic 7 information about you, so I won't ask about that again. 8 Let me go directly to some questions about the 9 interrogatory responses that have been filed on your 10 behalf. 11 the responses to interrogatories that you signed? Let me ask you what your -- well, did you draft 12 A. Your question is do I draft them sometimes? 13 Q. Do you draft them -- do you draft the ones you 14 sign? Did you draft the responses? 15 A. Generally. 16 Q. Okay. Generally, yes. So you draft -- it wasn't a matter of 17 someone drafting them for you and asking them to review 18 you -- review them, you drafted them yourself? 19 20 21 A. It happens both ways, but generally I draft my own interrogatories. Q. Okay. Now, with respect to a number of them, 22 you stated that you have no knowledge of the answer. 23 steps, if any, did you take to find out the answers to 24 those interrogatories? 25 A. What On those -- when I answered that I had no -- if www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 10 of 174 DAVE DORMIRE 1/15/2014 Page 11 1 I had no direct knowledge, I didn't take steps to obtain 2 additional information. 3 Q. Have you made any attempts to supplement your 4 responses to -- I understand that you just recently 5 responded to interrogatory set number one and -- number 6 three and number four. 7 responded to interrogatories number two? 8 9 10 11 A. First of all, have you ever I don't know the numbers on those interrogatories. I'll remember the questions, but I don't know the numbers of those. Q. 12 Okay. Have you supplemented -- MR. HANSEN: I'm going to -- I just want to make 13 a point on the record. 14 don't have interrogatory -- an interrogatory number two; 15 is that right? 16 MS. CARLYLE: It's my understanding that we I'm sorry, I'll turn this off. 17 apologize. 18 with plaintiff's second set of interrogatories? So your position is that you were never served 19 MR. HANSEN: 20 MS. CARLYLE: 21 MR. HANSEN: 22 I'm not saying that. Okay. What I'm saying is that we have been unable to find or locate interrogatory number two. 23 MS. CARLYLE: 24 MR. HANSEN: 25 I Okay. If there exists an interrogatory number two that you sent us that you would like to have www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 11 of 174 DAVE DORMIRE 1/15/2014 Page 12 1 answered and you contend that has not been answered, if 2 you'd provide it to us, we'll do that. 3 MS. CARLYLE: 4 5 Q. (By Ms. Carlyle) Have you supplemented your responses to the interrogatory set number one? 6 7 Okay. MR. HANSEN: Objection, form of the question, lack of foundation. 8 Q. 9 A. I'm not -- I'm not sure that I understand. 10 Q. Okay. 11 A. If you asked me additional questions, I would 12 (By Ms. Carlyle) Go ahead and answer if you -- have answered those, to the best of my ability. 13 Q. Okay. No, that's not what I'm -- that's not 14 what I'm asking about. 15 interrogatories, do you acknowledge that you are under an 16 obligation to supplement those answers with further 17 information if the information you provided changes? Once you have answered a set of 18 MR. HANSEN: 19 form of the question. 20 that I'm not sure this witness is qualified to answer. 21 A. Again, I'm going to object to the It calls for a legal conclusion My answer to that would be I -- when I answer 22 interrogatories, I answer them to my knowledge at the 23 time. 24 where I would become aware of -- I might become aware of 25 something later, but if I -- I guess potentially if I I don't know exactly what the circumstance would be www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 12 of 174 DAVE DORMIRE 1/15/2014 Page 13 1 misanswered something and became knowledged, I would 2 acknowledge that. 3 Q. (By Ms. Carlyle) No, I'm actually talking about 4 answering them later because things have changed. 5 example, if you said these are the dates -- as you did, 6 these are the dates of the trainings that we've had for 7 executions as of the time of this answer -- For 8 A. I see. 9 Q. -- and you're asked when are the trainings of 10 executions -- 11 A. Yes. 12 Q. -- then later on, that answer would change if 13 you were to answer it that day because there would have 14 been more trainings. 15 A. Yes. 16 Q. Okay. Are you with me? So my question to you is have you ever 17 attempted to revise your answers not because you made a 18 mistake the first time, I'm not suggesting that, but to 19 take account of new information that's responsive to those 20 interrogatories that wasn't responsive at the time you 21 made your first responses? 22 A. No. 23 Q. Okay. In response to the first question in the 24 third set of interrogatories, which was, "For the 25 execution protocol and affidavit issued on October 22 of www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 13 of 174 DAVE DORMIRE 1/15/2014 Page 14 1 2013, identify all persons involved in the lethal 2 injection protocol team describing in detail each person's 3 roles and tasks in developing a protocol." 4 question. 5 MR. HANSEN: That was the Before you ask a specific question, 6 could I -- could you give me a minute to either find that 7 or get a copy of it? 8 Dormire's answers to the third set of interrogatories? 9 MS. CARLYLE: 10 11 MR. HANSEN: Q. Are you talking about Defendant I am. Okay. I'm on page six. Thank you. (By Ms. Carlyle) And the term "lethal injection 12 protocol team" is actually defined in the interrogatories. 13 It's defined on page seven and -- it's defined on page 14 four, it's definition seven. 15 MR. HANSEN: Can I just ask if you're going to 16 ask him questions about his interrogatory answers that we 17 get him a -- do you have a copy for him or that he can see 18 a copy of it? 19 MS. CARLYLE: He can certainly see a copy of it. 20 I think -- yeah, let me give him this copy and I'll put it 21 up on my screen. 22 MR. HANSEN: 23 MS. CARLYLE: 24 MR. HANSEN: 25 Okay. It will take me just a second. Will you be using it as an exhibit or are you just going to ask him a question? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 14 of 174 DAVE DORMIRE 1/15/2014 Page 15 1 2 3 MS. CARLYLE: I'm just going to ask him a question. Q. (By Ms. Carlyle) The question concerns the lethal 4 injection protocol team, and if you look at definition 5 seven on page four, that means any and all persons or 6 entities involved in the research into and assessment and 7 development of a lethal injection protocol for the 8 Missouri Department of Corrections from 2010 on. 9 In response to that -- to that interrogatory, 10 you said on page six that you are aware of Matt 11 Briesacher, Mr. Lombardi, yourself and Melissa Scheulen. 12 Are those the people who are currently involved in 13 developing lethal injection protocols or is that everybody 14 since 2010? 15 16 A. It's not everyone since 2010. It is the people that were involved in the most recent protocol. 17 Q. So Mr. Larkins wasn't involved in that protocol? 18 A. Pardon? 19 Q. Mr. Larkins, Steve Larkins wasn't involved in 20 that protocol? 21 A. In this, no. 22 Q. What about M3? 23 A. M3, to my knowledge, was not involved in the 24 25 protocol. Q. Who -- let's see here. www.midwestlitigation.com You say in your MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 15 of 174 DAVE DORMIRE 1/15/2014 Page 16 1 response, "The Department determined that the state of 2 Ohio's use of five grams of Pentobarbital represented the 3 best approach to resolving the request that we stop 4 utilizing Propofol." 5 make any determinations as an entity, so who made that 6 determination? The Department, of course, doesn't 7 A. Mr. Briesacher did most of the research on that. 8 Q. Who decided, though? 9 A. I believe the department director makes the 10 final decision on it. 11 Q. That's Mr. Lombardi? 12 A. Yes. 13 MS. CARLYLE: Okay. Now I think we have a minor 14 logistical problem in that he needs to look at a page 15 that's on Exhibit 1, which I actually have a paper set of 16 that exhibit in my car, which I can bring in and maybe 17 that's the thing to do. 18 MR. HANSEN: I think it would be -- I think it 19 would be better and clearer to give him the actual 20 document, then mark it and attach it as an exhibit to the 21 deposition. 22 MS. CARLYLE: 23 MR. HANSEN: Okay. Rather than -- I think it would be 24 a lot easier for anybody that reads the deposition than 25 searching a disk, don't you? www.midwestlitigation.com I mean, that's what I would MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 16 of 174 DAVE DORMIRE 1/15/2014 Page 17 1 suggest. 2 MS. CARLYLE: I think everybody who is going to 3 look at it is going to look at -- pretty much is going to 4 look at it electronically, but in any event, okay. 5 guess -- I mean, unless there's a paper copy in the 6 building, I can go get one. 7 is there one here? 8 9 MR. HANSEN: Do you want me to do that or Are you going to be using other pages -- 10 MS. CARLYLE: 11 MR. HANSEN: 12 So I Oh, yeah. -- from that? I'd say let's just take a break for a minute and go get the papers. 13 MS. CARLYLE: 14 (Break in proceedings.) 15 Q. Okay. (By Ms. Carlyle) Okay. I'll go do it. We're back on the record 16 and I have placed before Mr. Dormire a set of documents 17 which I am confident is a printout of the information 18 contained on Exhibit 1, which is the CD. 19 if you will, Mr. Dormire, to pull out pages 2246 through 20 49. 21 MR. HANSEN: 22 MS. CARLYLE: 23 A. 24 Q. 25 A. Okay. And I'd ask you, Did you say 2246? Yes. I think I have those. (By Ms. Carlyle) Okay. Yes. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 17 of 174 DAVE DORMIRE 1/15/2014 Page 18 1 Q. Let me ask you if this -- if the -- well, first 2 of all, let me ask you what this document is, I guess 3 would be the first question. 4 A. This is labeled as Missouri Department of 5 Corrections, Preparation and Administration of Chemicals 6 for Lethal Injection. 7 8 Q. Is it, in fact, a document that's been used now as Department policy? 9 A. Say that -- 10 Q. Is it, in fact, a document that's being used 11 now? 12 policy? Does it reflect the current Department practice and 13 MR. HANSEN: If you need a minute -- were you 14 asking if that's the execution protocol that's currently 15 in effect? 16 17 18 19 MS. CARLYLE: can start with that. Q. I guess my question is -- well, we That's a good first question. (By Ms. Carlyle) Is that the execution protocol that's currently in effect? 20 A. No. 21 Q. Okay. 22 A. It is -- I don't even know if it was one of the Then what is it? 23 ones we proposed -- we proposed -- it looks similar, but I 24 don't know that it is one of the ones that we submitted. 25 Q. Submitted to? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 18 of 174 DAVE DORMIRE 1/15/2014 Page 19 1 A. As an official protocol for our department. 2 Q. So you don't know whether this is the official 3 execution protocol or not? 4 5 6 A. I know it's not the current one we have right Q. Okay. now. Let me draw your attention to page 2247, 7 to the portion of the document that begins with small B 8 and ask you to just go ahead and read from there down to 9 intravenous lines. 10 11 A. "If the department director determines that a sufficient quantity" -- 12 Q. I'm sorry. 13 A. Oh, I thought you were asking me to read it. 14 Q. That's fair. 15 A. Okay. 16 Q. Okay. You don't need to read it out loud. No, I won't put you through that. Is it fair to say that that subsection B 17 deals with an execution procedure which would utilize not 18 Pentobarbital, but Midazolam and Hydromorphone? 19 A. Yes. 20 Q. Is that something that the Department is now 21 prepared to do? 22 A. No. 23 Q. Okay. 24 25 Does the Department now maintain supplies of Midazolam or Hydromorphone for execution purposes? A. No. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 19 of 174 DAVE DORMIRE 1/15/2014 Page 20 1 MR. HANSEN: 2 MS. CARLYLE: 3 MR. SPILLANE: 4 5 Q. Go ahead. me about how this -- or when was this document prepared? MR. HANSEN: 7 A. 8 Q. 9 A. 11 Sure. (By Ms. Carlyle) So can you -- what can you tell 6 10 Hang on just a second, please. Objection. I do not know the date. Well, go ahead. Sorry. (By Ms. Carlyle) Do you know who prepared it? It would have been prepared primarily by Mr. Briesacher and my administrative assistant. Q. Okay. And actually, if you continue in your 12 pile of documents there and start looking at page 13 AGO002250. 14 15 16 MR. HANSEN: Sorry, I didn't hear the first part of that. Q. (By Ms. Carlyle) AGO2250 through 225 -- there 17 seems to be a lot of them -- 2267, do those appear to be 18 various versions of the same document? 19 A. Yes. 20 Q. Okay. 21 And does seeing that refresh your memory at all about when or why this was prepared? 22 A. No. 23 Q. Going back to page 2246, which lists the 24 execution team members, do those -- do the execution team 25 members listed on that document include any supplier of www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 20 of 174 DAVE DORMIRE 1/15/2014 Page 21 1 any chemical? 2 A. On page 46? 3 Q. 2246. 4 A. No. 5 6 It mentions manufacturer, distributor or compounding pharmacy. Q. Right. But under subsection A it says that 7 the -- it says who the execution team members are, 8 describes them, not -- doesn't give their names, but 9 describes them, correct? 10 A. Oh, yes. 11 Q. Okay. 12 And does it describe supplier of any sort as a -- an execution team member? 13 A. No. 14 Q. Does it describe any testing laboratory as an 15 execution team member? 16 A. No. 17 Q. Does it describe any physician writing 18 prescription as an execution team member? 19 A. No. 20 Q. Now, the protocol that's in effect today 21 includes those persons as execution team members, persons 22 or entities as execution team members, doesn't it? 23 A. Yes. 24 Q. When was it decided to add those people to the 25 execution team designation? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 21 of 174 DAVE DORMIRE 1/15/2014 Page 22 1 2 A. I don't know the exact date. It was during the preparation for the last protocol. 3 Q. Okay. 4 A. That was a decision -- obviously, Mr. Briesacher 5 6 Who made that decision? was involved, myself, Director Lombardi. Q. Okay. Now, you've said that this -- that this 7 protocol we've been looking at that provides for an 8 alternative to Pentobarbital is not a protocol that's 9 currently in use by the Department; is that right? 10 A. That's correct. That's correct. 11 Q. Does -- at this point does the Department of 12 Corrections have any, for want of a better term, backup 13 plan if Pentobarbital wasn't available? 14 A. We don't have a formal plan, no. 15 Q. Okay. 16 A. We always explore all options and watch what 17 18 19 Do you have an informal plan? other states are doing. Q. Has any decision been made as to what the next plan would be? 20 A. No. 21 Q. Let's see here. Mr. Dormire, I'm going to hand 22 you what's -- hand you a copy of your answers to 23 plaintiff's fourth set of interrogatories. 24 A. Okay. 25 Q. And -- wait a minute. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 22 of 174 DAVE DORMIRE 1/15/2014 Page 23 1 2 MR. HANSEN: floor? 3 4 MS. CARLYLE: There is not a question on the floor. 5 6 There's not a question on the MR. HANSEN: I just wanted to make sure I didn't miss something. 7 MS. CARLYLE: I'm actually trying to pull up 8 what Mr. Dormire is looking at. 9 MR. HANSEN: 10 11 12 MS. CARLYLE: And I apologize. You want to see my copy? I think I've got it. Here we go, but thank you. Q. (By Ms. Carlyle) Okay. Let me draw your 13 attention to the bottom of page five, which is -- which 14 the question was asked was there a non-public protocol for 15 the execution of Plaintiffs Joseph Franklin and Allen 16 Nicklasson and your answer was no. 17 given two sets of documents which I thought were 18 identified as the non-public protocols for the executions 19 of Allen Nicklasson and Joseph Franklin, so obviously 20 there's some misunderstanding here. 21 or would you characterize this -- the documents I received 22 this morning as something else? 23 at them, I think we're over here somewhere, right? 24 25 MS. CARLYLE: This morning I was Is that what they are And if you'd like to look The documents you were showing me this morning. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 23 of 174 DAVE DORMIRE 1/15/2014 Page 24 1 MR. HANSEN: 2 THE WITNESS: 3 MS. CARLYLE: MR. HANSEN: MS. CARLYLE: 9 MR. HANSEN: MS. CARLYLE: 12 MR. HANSEN: I Well, we'll see. -- meaning a protocol using a Okay. I'm not sure the same terms were being used by both parties. 14 15 I'm not sure, Elizabeth. different drug as opposed to the -- 11 13 Yeah. suspect that the question may have been interpreted -- 8 10 Well, can you hand me what I looked at this morning? 6 7 You're talking security procedures versus protocol. 4 5 Yes. MS. CARLYLE: Q. Well, we'll find out, won't we? (By Ms. Carlyle) And I guess we need to -- I 16 guess the only way to make -- for this to make any sense 17 is let's go ahead and mark those as Exhibits 8 and 9. 18 MR. HANSEN: 19 MS. CARLYLE: 20 MR. HANSEN: And we do need to -And we need to --- acknowledge at this point that 21 this portion of the deposition should be marked as 22 confidential. 23 MS. CARLYLE: 24 (Non-confidential portion of the transcript 25 ends.) www.midwestlitigation.com Okay. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 24 of 174 DAVE DORMIRE 1/15/2014 Page 45 1 2 . 3 A. 4 Q. 5 . (By Ms. Carlyle) Well, do you have knowledge of it -- have you heard something about it? 6 A. I -- 7 MR. HANSEN: I'm going to object to this 8 question because it could potentially reveal the identity 9 of the pharmacy, so -- 10 MS. CARLYLE: Well, I mean, I suppose if that's 11 true, anything could. 12 know, I could -- you know, knowing whether -- there are 13 presumably any number of pharmacies that have supplied 14 prisons. 15 MR. HANSEN: I mean, I could ask him -- you You can get that information from 16 other sources or from them, but you can't get it through 17 this witness. 18 MS. CARLYLE: Okay. So you're directing him not 19 to answer the question has the pharmacy provided execution 20 drugs for other prisons. 21 MR. HANSEN: 22 know. 23 that question. He's told you he personally doesn't Beyond that, I'm going to direct him not to answer 24 MS. CARLYLE: 25 MR. HANSEN: www.midwestlitigation.com Okay. And I will note that we have MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 45 of 174 DAVE DORMIRE 1/15/2014 Page 46 1 offered -- for the record, we have offered to make the 2 pharmacy available for a deposition and at this point you 3 have declined. 4 that pharmacy as well. 5 MS. CARLYLE: 6 Q. So you can get those answers directly from Okay. (By Ms. Carlyle) How did -- what steps did the 7 Department -- did you or anyone else at the Department of 8 Corrections, to your knowledge, take to determine the 9 reliability or -- you know, of the pharmacy? The 10 reliability of the pharmacy, the quality of its work and 11 the likelihood that it would do what -- that it would 12 fulfill its contract. 13 14 15 A. I know Mr. Briesacher did some research. To what extent, I do not know. Q. Okay. It's beginning to look like we may end up 16 deposing Mr. Briesacher, but that's another day. 17 or anyone else in the Department of Corrections inspect 18 the pharmacy? Did you 19 A. I did not. 20 Q. Did you or anyone -- well, did anyone for the 21 Department of Corrections inspect the pharmacy? 22 A. I don't know of anyone else that inspected. 23 Q. Would you expect to know if someone went to see 24 25 the pharmacy? A. I don't know that I'd know, but I don't have any www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 46 of 174 DAVE DORMIRE 1/15/2014 Page 47 1 personal knowledge that anyone did. 2 Q. Well, did -- did you or -- did you conduct any 3 investigation into the pharmacy's licenses and 4 registration with governmental agencies? 5 A. I did not do any investigation, no. 6 Q. Did anyone in the Department of Corrections do A. I can't speak for what Mr. Briesacher did. 7 that? 8 9 know he did research. 10 11 I Q. Do you know whether the pharmacy has ever been inspected by the federal Food and Drug Administration? 12 A. I don't know that myself, no. 13 Q. Do you know whether it's registered or plans to 14 register under the new drug compounding law under which it 15 could register as an outsourcing facility if it qualified 16 under the provisions of that law? 17 A. I don't know that. 18 Q. Does the pharmacy -- has the pharmacy 19 communicated to you that it adheres to the good 20 manufacturing practices promoted by the pharmacy industry? 21 22 MR. HANSEN: lack of foundation. 23 24 Objection, form of the question, A. I don't -- I don't have any knowledge of that, no. 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 47 of 174 DAVE DORMIRE 1/15/2014 Page 48 1 2 ? 3 4 5 Q. Can you explain the difference between compounded Pentobarbital and manufactured Pentobarbital? 6 A. The difference? 7 Q. Uh-huh. 8 A. Not in real specific terms, no. 9 Q. Well, in whatever terms you can explain it in. 10 A. Well, I have a general knowledge of what 11 compounding is and that is the mixing, compounding of 12 chemicals to produce the substance. 13 14 Q. So is compounded Pentobarbital identical to manufactured Pentobarbital? 15 A. I don't know that. 16 Q. Okay. How many pharmacists or other individuals 17 at the compounding pharmacy are involved with the 18 compounding of the Pentobarbital? 19 20 MR. HANSEN: lack of foundation. 21 A. 22 Q. 23 Objection, form of the question, I do not know. (By Ms. Carlyle) Do you know whether there's more than one? 24 A. No, I don't. 25 Q. Where do the active pharmaceutical ingredients www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 48 of 174 DAVE DORMIRE 1/15/2014 Page 49 1 in the compounded Pentobarbital come from? 2 A. Pardon? 3 Q. Where do the active pharmaceutical ingredients 4 in the Pentobarbital that's been delivered come from? 5 A. I do not know. 6 Q. Do you know whether they're from facilities 7 approved by the Food and Drug Administration? 8 A. I do not know. 9 Q. To your knowledge, has anyone at the Department 10 of Corrections made any effort to find out whether the 11 active pharmaceutical ingredients come from licensed and 12 approved facilities? 13 A. Again, I do not know the research that was done. 14 Q. So I'm clear, who does Mr. Briesacher report to 15 16 17 18 19 20 21 in the Department of Corrections? A. Mr. Briesacher is Chief Counsel. I believe he reports directly to Director Lombardi. Q. Thank you. Let me ask you to pull out of your piles over there page 1305 and I will get it, too. A. Okay. MR. HANSEN: And just so we're clear in the 22 record, he is pulling out a page number from what's been 23 identified as Exhibit 1, which is a disk in discovery. 24 25 MS. CARLYLE: That's correct. Thank you. I appreciate that. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 49 of 174 DAVE DORMIRE 1/15/2014 Page 50 1 2 3 4 5 6 Q. (By Ms. Carlyle) Page 1305 of Exhibit 1. ask you, first of all, to tell me what that is. A. That's a memorandum to myself from Gary Stoll, Fiscal and Administrative Manager. Q. So Gary Stoll is the fiscal administrative manager of what? 7 A. For the Department of Corrections. 8 Q. Okay. 9 10 11 12 13 Did you request that authorization from Mr. Stoll? A. No. He provided this to me. I believe in -- he provided this to me. Q. Right. Did he provide it to you at your request, though? 14 A. No. 15 Q. Okay. The memorandum refers to the volatile 16 nature of the pharmaceutical market. 17 that means? 18 Let me A. Can you tell me what The only way I can explain it is to say that 19 it's describing it's volatile in pricing and product 20 availability. 21 22 23 24 25 Q. Do you think that a hospital would find the market for Pentobarbital volatile? A. I don't -MR. HANSEN: Objection, form of the question, lack of foundation, calls for speculation. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 50 of 174 DAVE DORMIRE 1/15/2014 Page 51 1 A. 2 Q. I don't have a personal knowledge of that. (By Ms. Carlyle) If you did not have the 3 authorization provided in this memorandum, how would the 4 procedure for obtaining bids for the procurement of 5 pharmaceuticals be different than it was? 6 A. If I did not have this memo? 7 Q. Uh-huh. 8 9 10 What did the memo change, I guess is what I'm asking? A. I'm implying from here that it would require written bids. 11 Q. You're implying -- you're -- 12 A. I don't have personal knowledge, but it would -- 13 Q. This memo talks about the -- that it's not 14 always possible to have written bids. 15 this memo that normally written bids are the procedure. 16 So you wouldn't be involved in getting such bids normally? 17 18 19 20 21 A. Normally I'm not, no. MS. CARLYLE: Okay. Let me suggest at this point that maybe we should take a break. MR. HANSEN: That's fine. For the record, we've been going just a little -- I guess an hour and a half. 22 MS. CARLYLE: 23 MR. HANSEN: 24 MS. CARLYLE: 25 I would assume from All right. A good time for a break. I guess partly because I had asked -- partly because I need a break and partly because www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 51 of 174 DAVE DORMIRE 1/15/2014 Page 52 1 I had asked Mr. Dormire to fetch some documents and this 2 will give him an opportunity to do that because I was 3 about to start asking about them. 4 MR. HANSEN: 5 MS. CARLYLE: 6 (Break in proceedings.) 7 Q. Okay. Okay. (By Ms. Carlyle) Let me ask you, Mr. Dormire, 8 were you able to locate the documents to answer the 9 question about who the other two pharmacies were that 10 11 weren't able to supply the Pentobarbital? A. Yes. Q. Okay. 12 13 14 15 16 17 18 19 20 21 And how did you happen to be talking to those two pharmacies? A. I looked up their phone number in the Yellow Pages. Q. Pages? Okay. What were you looking for in the Yellow What category were you -- 22 A. Just pharmacies. 23 Q. Pharmacies, okay. Let me ask you to pull out of 24 your set of documents there, which are the documents that 25 are paper copies of the documents on the disk which is www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 52 of 174 DAVE DORMIRE 1/15/2014 Page 53 1 Exhibit 1, I'd ask you to look at page 1292, please. 2 A. Okay. 3 Q. Okay. 4 This document has some redactions, doesn't it? 5 A. Yes. 6 Q. Can you tell us what categories of information 7 are redacted? 8 before -- after -- before it was redacted, but what sort 9 of thing was redacted? 10 I'm not asking you to say what it said Was it names, was it numbers, what was redacted? 11 A. Names and phone numbers. 12 Q. Names and phone numbers of what sort of -- 13 A. Of pharmacies. 14 Q. Of pharmacies. Okay. So on this document you 15 redacted not only the pharmacy that gave you a bid, but 16 the pharmacies that didn't, correct? 17 A. Yes. 18 Q. Why did you do that? 19 MR. HANSEN: I'll object to the form of the 20 question and lack of -- for lack of foundation at this 21 point. 22 23 A. Go ahead and answer that if you can. I didn't do the redaction on this one, but I'm -- I can't give you a direct answer. 24 Q. 25 A. (By Ms. Carlyle) Okay. Who did the redaction? Either my administrative assistant or www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 53 of 174 DAVE DORMIRE 1/15/2014 Page 54 1 2 3 4 5 Mr. Briesacher. Q. Did you review the redactions after they were done to see if you agreed with them? A. I did not review redactions to see if I agreed with them, no. 6 Q. Did you review them at all? 7 A. I reviewed most of the paperwork that was 8 9 10 11 12 13 redacted, yes. Q. Okay. And what was the purpose of your review if it wasn't to determine -A. To try to ensure that we weren't releasing information that we shouldn't. Q. So did you feel there was any responsibility to 14 determine that information that should be available to the 15 other side should be -- should not be redacted? 16 A. My only purpose was to look to make sure we 17 weren't identifying the individuals that by statute we 18 can't identify. 19 Q. Was there anyone whose function it was to make 20 sure that all publicly -- all information that should be 21 available to the parties -- to the opposing parties was 22 made available and not redacted? 23 A. The purpose of the redaction that I saw was to 24 protect Social Security numbers and other identifying 25 information of individuals. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 54 of 174 DAVE DORMIRE 1/15/2014 Page 55 1 Q. Well, we'll get to those, too. 2 A. Okay. 3 Q. But I guess what I'm saying is was there anyone 4 who approached the redaction task with the idea we 5 shouldn't redact anything we don't have to because these 6 are documents that would ordinarily be in the public 7 domain or at least be relevant to the parties? 8 A. I don't know that I can answer that question. 9 Q. Okay. 10 There is, however, some information redacted on page 1292 which you've just given me, correct? 11 A. Yes. 12 Q. Now, the -- first of all, why don't you just say 13 14 15 for the record what is page 1292 a copy of? A. It is called a State of Missouri Office of Administration Bid Record Form. 16 Q. And is that a form that you filled out? 17 A. Yes. 18 Q. Is it a form you frequently fill out? 19 A. No. 20 Q. Why did you fill out -- why did you get the job 21 22 23 24 25 of filling out this one? A. I believe it was to keep as confidential the information that we needed to keep confidential. Q. Okay. So there are -- on this bid record there are three pharmacies or three, I guess, contact attempts www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 55 of 174 DAVE DORMIRE 1/15/2014 Page 56 1 listed, correct? 2 A. Yes. 3 Q. Two of them say that the Pentobarbital was not 4 available, correct? 5 A. Correct. 6 Q. And the third one provides a price of $8,000? 7 A. Yes. 8 Q. Was that the only bid you got for Pentobarbital? 9 A. Yes. 10 Q. Was there -- is there any requirement that you 11 12 13 14 15 have more than one bid before making such a purchase? A. We have to make contact with three potential sellers. Q. But you don't have to obtain more than one actual quote? 16 A. No. 17 Q. Okay. Once you obtained this bid, did anyone 18 attempt to negotiate about price or anything else with 19 that pharmacy? 20 A. I did not. 21 Q. Did anyone else? 22 A. I don't know that anyone else did. 23 Q. Okay. Let me ask you to pull up page 12 -- or 24 get in front of you page 1263. 25 are three pages I'd like for you to look at because I www.midwestlitigation.com While -- actually, there MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 56 of 174 DAVE DORMIRE 1/15/2014 Page 57 1 think they're the same thing and we're going to try to 2 confirm that. 1263, 1283 and 1298. 3 MR. HANSEN: 4 MS. CARLYLE: 5 A. 6 Q. 7 (By Ms. Carlyle) Are those, in fact, three copies of the same document? A. No. 9 Q. Okay. 11 12 And 98. Okay. 8 10 63, 83? What are the differences or have I given you the wrong page number, which I am capable of doing? A. Well, 1298 is a Confidential Execution Team Member Receipt. 13 Q. Oh, okay. 14 A. 1263 and 1283 are dated the same date and appear 15 I'm sorry. Hang on. to be worded the same, but they're not the same documents. 16 Q. And, actually, the third one to look at is 1299. 17 A. Okay. 18 Q. So what are the differences between 1299, 1263 19 20 and 1298 (sic)? A. 1299 has a different date on it. It appears to 21 be worded the same. 22 wording -- the typing is different on each one, all three. 23 Q. Okay. All three are -- the format or the Do you know -- I mean, what -- do you 24 have any sense about why those three documents that 25 basically seem to have the same information exist? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 57 of 174 DAVE DORMIRE 1/15/2014 Page 58 1 2 A. At least one of these appears to be probably a faxed copy of one of them. 3 Q. Okay. 4 A. I believe 1283 is faxed. 5 Q. Okay. Which one do you think is faxed? But, I mean, is it -- okay. So there are 6 two -- and you're right, there are two dates. 7 dated November 11 -- I'm sorry, 1283 is dated November 11 8 and 1299 is dated November 13. 9 contracting party and the contractor's signature and the 1263 is So the name of the 10 printed name and the DEA number are all redacted in all of 11 them, correct? 12 13 14 A. Two of them say license number, one says DEA number, but yes. Q. Okay. So what -- I guess I'm -- I'm kind of 15 trying to figure out what I'm looking at. 16 different agreements with different people or different 17 entities? 18 19 A. Are they I believe 1263 and 1283 are probably the same document, but this is just a fax copy. 20 Q. Okay. 21 A. 1299 is certainly a different -- different dated 22 And 1299, what's it? and different handwriting than the other two. 23 Q. So is it an agreement with a different pharmacy? 24 A. Different medical service provider. 25 Q. Oh, I'm sorry. www.midwestlitigation.com 1299 is a prescriber one, isn't MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 58 of 174 DAVE DORMIRE 1/15/2014 Page 59 1 it? 2 Pentobarbital, is it not? Let's be clear. 3 MR. HANSEN: 4 MS. CARLYLE: 5 A. 6 Q. 1263 is a contract for providing I'm sorry, which one did you say? 1263. Yes, yes. (By Ms. Carlyle) As -- but 1299 is actually a 7 different -- is actually, as you pointed out, a contract 8 with a -- someone to provide prescriptions, correct? 9 A. Yes. 10 Q. And let's -- let's now, and I'm sorry to have 11 led you on that wild goose chase of 1299, but take a look 12 at 1301, please. 13 A. Okay. 14 Q. Is 1301 the same as 1263 and 1283? 15 A. It looks similar to me. 16 Q. Okay. 17 To your knowledge, how many contracts with pharmacies for Pentobarbital were made? 18 A. To my knowledge? 19 Q. Uh-huh. 20 A. One. 21 Q. Okay. 22 Because it's been the same pharmacist all three times, right? 23 A. Yes. 24 Q. Yes, okay. 25 Is that pharmacy licensed as either a Missouri pharmacy or as an extraterritorial pharmacy www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 59 of 174 DAVE DORMIRE 1/15/2014 Page 60 1 licensed to export drugs to Missouri? 2 MR. HANSEN: I'm going to object to that 3 question as calling for an answer that could reveal the 4 identity of the pharmacy. 5 MS. CARLYLE: The question whether it's licensed 6 either as a Missouri pharmacy or a pharmacy licensed to 7 export drugs to Missouri could allow us to identify the 8 pharmacy? 9 10 MR. HANSEN: that would be fine. 11 MS. CARLYLE: 12 MR. HANSEN: 13 If you want to say is it licensed, That was the question. But to narrow it down -- well, what peaked my hearing was asking if it was in Missouri. 14 MS. CARLYLE: No, I asked is it licensed as 15 either a Missouri pharmacy or an extraterritorial pharmacy 16 licensed to export drugs to Missouri. 17 A. 18 I -MR. HANSEN: 19 A. 20 Q. Go ahead and answer. I have seen its license. It is licensed. (By Ms. Carlyle) Is it licensed either as a 21 Missouri pharmacy or an extraterritorial pharmacy licensed 22 to export drugs to Missouri? 23 24 25 MR. HANSEN: We'll object to the form of that question, lack of foundation. A. I don't know that I understand exactly how www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 60 of 174 DAVE DORMIRE 1/15/2014 Page 61 1 you're asking the question, but it is -- 2 Q. (By Ms. Carlyle) Well, let me explain. There 3 are -- I am asking you whether it falls into one of two 4 categories. 5 would be a pharmacy somewhere else that had been licensed 6 by Missouri to allow it to sell drugs in Missouri. 7 8 One would be a Missouri pharmacy. MR. HANSEN: The other Again, I object to the form of the question and lack of foundation. 9 A. 10 Q. I do not know the answer to that question. (By Ms. Carlyle) Okay. Did anyone at the 11 Department of Corrections make inquiry about whether any 12 professional complaints had been filed against the 13 pharmacy that supplies the Pentobarbital? 14 15 16 17 A. Again, I do not know the research Mr. Briesacher Q. Okay. did. Do you think that if anyone did, it would have been Mr. Briesacher? 18 A. Yes. 19 Q. Okay. Let me ask you to take a look at page 20 1260, again, of Exhibit 1, the disk with the discovery 21 supplied in January 2014. 22 A. 1260? 23 Q. 1260. 24 A. Okay. 25 Q. Can you tell us what that is, please. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 61 of 174 DAVE DORMIRE 1/15/2014 Page 62 1 2 3 4 A. That is a memo from myself to the pharmacy indicating that they are to be known as pseudonym M6. Q. Okay. You say they are to be known. Is it the entity or a particular individual who is M6? 5 A. I addressed this to an individual. 6 Q. So is there a separate pseudonym for the concern 7 that the individual works for? 8 A. No. 9 Q. So you addressed it to an individual. 10 of individual is he or she? 11 individual do? 12 13 MR. HANSEN: What sort What kind of job does that Objection, form of the question in that it lacks foundation. 14 MS. CARLYLE: I mean, what I'm looking for is 15 something like a pharmacist, the head of the company, the 16 secretary, the clerk, you know. 17 name of an individual, I'm just looking for a function of 18 the person to whom you assigned that M6 designation. 19 MR. HANSEN: I'm not looking for the I'm objecting to the form of the 20 question. It lacks foundation. 21 should be do you know and then he can say yes or no. 22 MS. CARLYLE: 23 MR. HANSEN: 24 25 I think the question Okay. I'm objecting to the form of the question because it lacks foundation. MS. CARLYLE: www.midwestlitigation.com Okay. Well, Mr. Hansen, do you MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 62 of 174 DAVE DORMIRE 1/15/2014 Page 63 1 really want me to start every question by do you know this 2 and then asking him what the answer is? 3 take a lot longer if I do that. 4 and he says I don't know, that seems to me to serve the 5 same purpose, but we'll do it whichever way you want. 6 7 MR. HANSEN: It's going to If I ask him the question Where I believe it's appropriate, I will make the objections. 8 MS. CARLYLE: 9 MR. HANSEN: Okay. Because sometimes if I don't, it 10 leads to an answer that is -- that might be inaccurate or 11 that might be misused. 12 MS. CARLYLE: 13 MR. HANSEN: So in the instance -Let me -In the instances where I think that 14 it is necessary, I will make the objection. 15 of times I haven't made the objection for the very purpose 16 so we can move it along. 17 A. 18 Q. 19 I've -- a lot He's a pharmacist. (By Ms. Carlyle) Okay. Let me ask you to take a look at page 1261, please. 20 A. Okay. 21 Q. Now page 1261 actually contains three documents, 22 does it not? 23 A. Yes. 24 Q. Okay. 25 Can you describe generally what they are so we'll know what we're talking about? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 63 of 174 DAVE DORMIRE 1/15/2014 Page 64 1 A. The first one is -- I would describe as permits, 2 retail pharmacy. 3 registration. 4 registration certificate. 5 6 Q. The second one is a certification of The third one is a controlled substance Okay. And did they all pertain to the same business? 7 A. Pardon? 8 Q. Do they all pertain to the same business? 9 A. Yes. 10 Q. Because as a result of redactions, we can't tell 11 what business they pertain to, correct? 12 A. Yes; yes. 13 Q. Okay. 14 Will you tell us what state the pharmacy is licensed in? 15 MR. HANSEN: I'm going to object to that 16 question, it would be information that would lead to the 17 identity of the pharmacy, and I'll instruct him not to 18 answer that question. 19 Q. (By Ms. Carlyle) Okay. Just so it will be on the 20 record, the St. Louis public radio has reported that the 21 pharmacy is licensed in Oklahoma. 22 confirm or deny that? 23 MR. HANSEN: 24 25 Q. Are you willing to Same objection, same instruction. (By Ms. Carlyle) Is the expiration date of the license redacted in this -- this iteration of this www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 64 of 174 DAVE DORMIRE 1/15/2014 Page 65 1 document? In this document on page 1261. 2 A. Yes. 3 Q. Okay. 4 A. I believe it was redacted because of attempts to Why was that redacted? 5 identify the pharmacy. 6 MS. CARLYLE: 7 Could you mark this as Exhibit 5, please? 8 (Exhibit No. 5 marked for identification.) 9 MS. CARLYLE: 10 I'll show you what I've got because I don't have another copy. 11 MR. HANSEN: Okay. I'll just clarify. I saw it 12 was identified as amended complaint, but this is an 13 exhibit that was a page from the complaint. 14 MS. CARLYLE: 15 yes. 16 of it. It was attached to the complaint, I think it reflects actually on its -- at the bottom 17 MR. HANSEN: 18 MS. CARLYLE: Yes, I see that. But let me just say that it is 19 the -- it is page eight of Exhibit 13 to the amended 20 complaint filed in this case, I believe on December 3. 21 And I believe that's actually -- the filing date is 22 actually reflected on that document. 23 MR. HANSEN: I'm not sure -- are you going to 24 ask him many questions about it or just briefly? 25 I'm going to want a copy of it. www.midwestlitigation.com Because I don't have that handy MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 65 of 174 DAVE DORMIRE 1/15/2014 Page 66 1 with me. 2 MS. CARLYLE: 3 MR. HANSEN: Okay. So I'm going to either want a copy 4 of it or I can wait to get it until later if it's going to 5 be a brief question. 6 7 MS. CARLYLE: dates that are on here and not on there. 8 MR. HANSEN: 9 MS. CARLYLE: 10 I'm going to ask him about the two Q. I suspected, but -Okay. (By Ms. Carlyle) Let me ask you whether 11 Exhibit 5, which I've just handed you, appears to be a -- 12 basically the same -- contain the same three documents as 13 page 1261 that we've been looking at? 14 A. Yes. 15 Q. Okay. 16 17 Does Exhibit 5 indicate the expiration date of the license at the top of the page? A. Yes. Q. Okay. 18 24 25 Are those two pieces of information included on page 1261? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 66 of 174 DAVE DORMIRE 1/15/2014 Page 67 1 A. No. 2 Q. So is it your position that even though this 3 document has been publicly filed in court and served on 4 your counsel, you are still entitled to redact it from 5 discovery you provide in this case? 6 7 8 9 MR. HANSEN: Objection to the form of the question, calls for a legal conclusion. A. We are aware that people have attempted to identify the pharmacist by using those dates, so yes. 10 14 Q. Let me just ask you to take a look at page 1287 15 and ask you whether that contains the same three documents 16 as 1261? 17 A. Yes, it appears to be the same. 18 Q. Okay. 19 If you'll look at page 1265, please. And can you tell me what those are, if you know? 20 A. Not from the redacted copy, I can't. 21 Q. Okay. 22 A. They say doctor or pharmacy and its expire date 23 and labeled as receptor. 24 Q. Or preceptor? 25 A. Preceptor, I'm sorry. www.midwestlitigation.com I missed the P. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 67 of 174 DAVE DORMIRE 1/15/2014 Page 68 1 Q. Do you know whether those two cards, if we can 2 call them that, that are copied there, pertain to the same 3 person? 4 A. No, I don't. 5 Q. Could you look at the unredacted documents and 6 tell me what they are and whether they pertain to the same 7 person? 8 A. I could. 9 Q. Okay. You want to do that now or shall we -- 10 MS. CARLYLE: What do you want to do? 11 MR. HANSEN: 12 MS. CARLYLE: 13 (Off the record.) 14 MS. CARLYLE: Do you -- off the record. Sure. Back on the record. 15 Q. 16 A. These cards are from two different pharmacists. 17 Q. Are they pharmacists who work for the pharmacy 18 (By Ms. Carlyle) So what -- who -- 19 A. Yes. 20 Q. -- which compounds the Pentobarbital? 21 A. Yes. 22 Q. Are you willing to tell me -- I mean, are they 23 issued by some government or an educational institution or 24 what, the cards? 25 MR. HANSEN: www.midwestlitigation.com I'm going to object to the form of MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 68 of 174 DAVE DORMIRE 1/15/2014 Page 69 1 the question in that it lacks foundation. 2 3 A. I just glanced at them real quickly, but they are by government. 4 Q. (By Ms. Carlyle) Okay. 5 date that they expire? 6 that? 7 A. Right. 8 Q. Okay. 9 And you've redacted the You're not willing to tell us So we can't tell by looking at what we have whether they're current or not? 10 A. No. 11 Q. Are they current? 12 A. Yes. 13 Q. Could you take a look at page 1289 and tell me 14 if those are the same two documents? 15 A. Okay. 16 Q. Now, according -- I'll just tell you that 17 according to my notes in the December 27 version of this 18 discovery, the expiration date was not redacted, although 19 since I don't have that discovery, I don't know what it 20 was. 21 decision to redact that information, although it had not 22 been previously redacted? 23 Was there -- were you -- did you participate in a A. I didn't do the redaction, but I knew that we 24 are -- our intent was to try to redact those type -- that 25 sort of information, yes. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 69 of 174 DAVE DORMIRE 1/15/2014 Page 70 1 2 Q. Can you take a look, please, at page 1307? Does that appear to be an e-mail? 3 A. Pardon? 4 Q. Does that appear to be an e-mail? 5 A. Yes. 6 Q. Okay. And who's it from? I mean, I know you're 7 not going to give me a name, but what sort of person is it 8 from? 9 10 11 12 13 MR. HANSEN: Q. Describe the category. (By Ms. Carlyle) Describe the category of person that it's from. A. I believe this to be an e-mail from the testing laboratory. 14 22 A. I'm -- this is not my e-mail, so -- 23 Q. Okay. 24 25 Okay. MS. CARLYLE: Could you mark this one for me as Exhibit 6, please? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 70 of 174 DAVE DORMIRE 1/15/2014 Page 71 1 (Exhibit No. 6 marked for identification.) 2 MR. HANSEN: 3 it to him, too, please. 4 5 If I could see it before you hand MS. CARLYLE: Q. Sure. I will do that. (By Ms. Carlyle) Before I do that, so do you have 6 any idea why the words on the line that begins "to follow 7 up on our phone conversation" were redacted? 8 A. No. 9 Q. Okay. Are you aware that in previous versions 10 of this document provided as a Sunshine Law request, those 11 words were unredacted? 12 A. No. 13 Q. Mr. Dormire, I'm handing you a document which is 14 the page seven of the Exhibit 13 to the amended complaint 15 filed in this matter on December 3 of 2013. 16 you whether that appears to be a copy of the same e-mail 17 that you're looking at on page 1307? 18 A. And I'll ask Yes, it appears to be the same. 19 MR. HANSEN: 20 THE WITNESS: I just want to look at one thing. Sure. 21 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 71 of 174 DAVE DORMIRE 1/15/2014 Page 72 1 Q. Do you contend that the manufacturer of the raw 2 materials from which the compounded Pentobarbital is made 3 is a member of the execution team? 4 A. The manufacturer? 5 Q. Uh-huh. 6 A. No. 7 Q. Let me draw your attention to, let's see here, 8 page 1310 and 1312 and ask if you know what those 9 documents are? 10 11 12 13 A. 1310 is labels for Pentobarbital and 1312 is also a label. Q. And are they -- is 1312 one of the same labels in 1310 or can we tell? 14 A. They are similar, yes. 15 Q. Okay. So what information is redacted? I mean, 16 again, I'm not asking you to tell me what it says, but 17 what category of information has been redacted there? 18 19 A. Name of the pharmacy, and its address, I assume, phone numbers, probably. I don't know -- 20 Q. Okay. 21 A. -- what all was redacted there. 22 Q. Okay. 23 A. Yes. 24 Q. And when was Joseph Franklin executed? 25 A. I want to say the 20th, but I don't know that www.midwestlitigation.com Do those labels bear a date? November 13, 2013. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 72 of 174 DAVE DORMIRE 1/15/2014 Page 73 1 I'm -- I don't know if I have a document in front of me 2 that shows what exact date. 15 16 Q. And while we're at it, let's take a look at 2048, 2049 and 2056. 17 MR. HANSEN: 18 MS. CARLYLE: 19 MR. HANSEN: Can you say those one more time? 2048, 49 and 56. Thank you. 20 A. 21 Q. 22 A. Okay. 23 Q. Tell me, please, what 2048 is. 24 A. 2048 appears to be a letter addressed to 25 48 -- if you will, one more time. (By Ms. Carlyle) 48, 49 and 56. Mr. Briesacher. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 73 of 174 DAVE DORMIRE 1/15/2014 Page 74 1 2 Q. And can you tell what sort of person or business the letter is from? 3 A. It's making reference to laboratory 4 accreditation, so I believe this is the testing 5 laboratory. 6 Q. Okay. 7 A. It appears like one. 8 Q. Okay. 9 Okay. And 2049 is an invoice, is it not? Let me look at one more thing here. Let's talk about execution training here. When we 10 took your deposition last time and you acknowledged that 11 there had been some execution training that had been 12 occur -- that had occurred since you gave your 13 interrogatory answers in February of 2013, have you 14 provided your counsel or us with a list of training since 15 then? 16 MR. HANSEN: 17 MS. CARLYLE: 18 19 20 21 22 A. 25 Since February of 2013. Mr. Briesacher is aware of training dates, but I don't know that that's been provided to you. Q. (By Ms. Carlyle) Okay. Are you able to provide a list now? A. 23 24 Since which day? Not off the top of my head. MR. HANSEN: We'll get you a list of new training. MS. CARLYLE: www.midwestlitigation.com Okay. What I need to know about MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 74 of 174 DAVE DORMIRE 1/15/2014 Page 75 1 the training is when it was and who was present for each 2 training, where it was. 3 this way. 4 the first set of interrogatories, which is what we're 5 talking about supplementing, you'll see what information 6 we requested about each of the trainings and that's the 7 information we still want. 8 remembered it because I'm not looking at them, my question 9 would be as to each of those trainings, please supply the 10 information requested in the first set of interrogatories 11 which were answered last February. 12 13 If you look at the -- if you look at the -- at MR. HANSEN: Q. I mean, I guess -- let me put it So if I have not successfully All right. (By Ms. Carlyle) Have you been present for any 14 of -- any trainings that have occurred since the 15 Pentobarbital protocol went into effect? 16 A. Yes. 17 Q. Okay. 18 A. One that I remember for sure. 19 Q. And do you have some idea when that was? 20 A. I -- I don't know the date. 21 22 How many? I think just one. It was a month to month and a half prior to the execution, I believe. Q. So what -- can you kind of walk me through what 23 happened at that -- at that training in terms of what 24 category of people were there and what they all did and -- 25 A. The people that are normally there and www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 75 of 174 DAVE DORMIRE 1/15/2014 Page 76 1 responsible for their jobs are there during that practice. 2 Q. But -- so I mean you -- you can use pseudonyms 3 if you want to, but I need you to tell me who those people 4 are. 5 A. Okay. Well, certainly the warden is there and 6 the deputy warden and the medical personnel are there, the 7 non-medical personnel are there. 8 9 Q. So at this point we have, in terms of medical personnel who are there, we have M3; is that correct? 10 A. Yes. 11 Q. We have M2? 12 A. Yes. 13 Q. And then there's non-medical 1 and 2? 14 A. Yes. 15 Q. By the way, before I forget to ask you this, who 16 is or was M4? 17 18 MR. HANSEN: Again, you're not asking the identity, you're asking -- 19 MS. CARLYLE: 20 was M4. 21 A. 22 Q. No, I'm asking what sort of person That dates past me. (By Ms. Carlyle) Okay. I do not know. Okay. And so back to 23 training for a moment. 24 non-medical personnel are there and so do they, then, sort 25 of simulate what happens during an execution? www.midwestlitigation.com Okay. The -- so the medical and MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 76 of 174 DAVE DORMIRE 1/15/2014 Page 77 1 A. Yes. 2 Q. So what do they do to simulate it? 3 4 I mean, sort of tell me what happens. A. Just about every process that we do on a normal 5 execution, they simulate what will occur and what they 6 would do. 7 Q. Well, I need you to tell me what that is. 8 A. The medical staff prepares syringes, the 9 10 11 12 non-medical staff practice what they would do in a procedure with those syringes. Q. Do they -- I mean, does someone get strapped down to a gurney? 13 A. No. 14 Q. Okay. 15 A. We don't do that. 16 Q. Okay. I mean, I know you don't administer the 17 drugs to them, but okay. 18 the non-medical -- so the medical personnel don't practice 19 starting intravenous lines and so forth, do they? So when you say the medical -- 20 A. No, they don't. 21 Q. Okay. And the non-medical people don't practice 22 administering the drugs because there's no one or nothing 23 to administer them to. So what -- 24 A. They do practice with the syringes, though, yes. 25 Q. So what do they do with the syringes? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 77 of 174 DAVE DORMIRE 1/15/2014 Page 78 1 A. It is discarded. 2 Q. No, I mean, what do they do with the syringes 3 during the training? 4 A. They -- 5 Q. What physically do they do? 6 A. They push the syringes. 7 Q. Into what? 8 A. Into a bag that is discarded. 9 Q. So into a bag that would normally be connected 10 to a line that went into a person? 11 A. Yes. 12 Q. Okay. 13 A. It is -- the medical staff are overseeing, 14 And who supervises the training? watching what the non-medical staff do. 15 Q. Okay. 16 A. Pardon? 17 Q. The medical staff being M2 and M3 or are there 18 19 20 The medical staff being M2 and M3? other medical staff? A. Yes, yes. The warden is watching parts of the aspect, I myself am watching parts of the aspect. 21 Q. So what are you watching? 22 A. Just that we're following the protocol and doing 23 24 25 the things we're supposed to do. Q. Let me ask you to take a look at the -- at a chronological log that -- there's one that begins at page www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 78 of 174 DAVE DORMIRE 1/15/2014 Page 79 1 676 and one that begins at page 689 and they're kind of 2 multi-page documents. 3 A. Stuck together. 4 Q. 686. 5 676 to -- I'm sorry, wait a minute. If I said 676, that's what I meant. 6 MR. HANSEN: 7 MS. CARLYLE: 8 A. 9 Q. Yeah, 676. 676, yeah. To -- all the way to 686? (By Ms. Carlyle) Well, I think there may be some 10 things in between. 11 sort of a log that begins as 676, correct? Hang on just a second. But there's 12 A. Yes. 13 Q. Okay. 14 at 689. 15 those two logs -- how they -- you know, what they are, 16 whether they're -- who does them and why they do them and 17 so forth? 18 A. And then there's another log that begins My question for you is can you explain to me what These are -- these are logs by the officers -- 19 the first one is by -- for sure by the officer at the 20 holding cell. 21 Q. Okay. 22 A. The second one appears to be the same sort of 23 thing, but not on that form. 24 at exact times and things, I don't know whether -- 25 Q. There are -- without looking Well, I think there's actually some overlap, but www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 79 of 174 DAVE DORMIRE 1/15/2014 Page 80 1 I'm just wondering why -- how it happens that we have one 2 set on a form and one set that's not and whether there are 3 different people who -- anyway, why that is, I guess. 4 5 A. There are -- I know there are two officers assigned to that post. 6 Q. Okay. 7 A. My opinion would be that both are filling out a 8 9 10 log themselves. Q. I see. of them isn't? 11 A. Yes. 12 Q. Okay. 13 14 So one of them is using the form and one Is there anything wrong with that as far as your -- from a procedural standpoint? A. We ask them to fill out a log. I don't -- we 15 have various forms that we call the term chronological 16 logs, so to see different logs doesn't surprise me. 17 Q. Okay. But what you're telling me -- if I 18 understand you correctly, maybe you can -- the two -- the 19 log that begins on 676 and the log that begins on 689, 20 it's not like they're file -- they're prepared by 21 different officers with different -- with assignments to 22 record different types of things? 23 MR. HANSEN: I'm going to object to the form of 24 that question. 25 it's not filled out by two different officers. www.midwestlitigation.com It's compound and so confusing. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 You said I think I Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 80 of 174 DAVE DORMIRE 1/15/2014 Page 81 1 2 understand what you meant, but -Q. (By Ms. Carlyle) It is filled out by two 3 different officers. 4 two different officers with two different assignments to 5 record two different sets of information? 6 A. I guess what I'm asking you, is it Just to start off, there are different -- quite 7 a few different dates. One is November 19, one is 8 November 15, so four days apart. 9 Q. Right. 10 A. This one for sure -- 11 Q. I'm sorry, when you say this one, tell us which 12 I guess -- one it is. 13 MR. HANSEN: 14 Q. 15 A. 16 Use the page number. (By Ms. Carlyle) Use the page number, please. The 19th. MR. HANSEN: Down at the bottom. 17 Q. 18 A. Oh, 676. 19 Q. Thank you. 20 A. That's dated November 19. 21 (By Ms. Carlyle) Down at the bottom, what page? That is -- the post is CP offender holding cell. 22 Q. Okay. 23 A. The second one doesn't identify the post, but 24 25 identifies the date as November 15, third shift. Q. Okay. www.midwestlitigation.com And -- but do you think that the person MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 81 of 174 DAVE DORMIRE 1/15/2014 Page 82 1 who completed 689 -- the log beginning on 689 was also an 2 officer in the holding cell or was he somewhere else? 3 A. It appears he was at the holding cell as well, 5 Q. Okay. 6 A. He's making notations about Offender Franklin. 7 Q. Okay. 4 yes. And that's something that -- I mean, is 8 that something that's specific to the duties of someone in 9 the holding cell as opposed to -- as opposed to someone 10 who's just an officer when Mr. Franklin is not yet in the 11 holding cell? 12 A. I believe our orders require a -- one officer to 13 track when an offender is in a holding cell status, so we 14 are required to do a chronological just specifically on 15 that offender. 16 17 18 19 20 21 Q. Okay. But if -- I mean, so these are both holding cell logs, I guess is what we're saying? A. They appear to be that, yes. I see references to the holding cell in this other log, yes. Q. Okay. Now, on page 689, it appears that there's been something redacted? 22 A. Yes. Appears to be a phone number. 23 Q. Okay. 24 number? 25 A. What -- why did you redact the phone I was aware they went through and redacted www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 82 of 174 DAVE DORMIRE 1/15/2014 Page 83 1 almost all the phone numbers of individuals. 2 Q. Why? 3 A. Just to protect their identity, I guess. 4 Q. Do you -- were -- I mean, you say they went 5 through and redacted. 6 A. What -- Well, I am aware my administrative assistant 7 went through and redacted phone numbers. 8 were phone numbers, she redacted them. Any time there 9 Q. Okay. 10 A. No. 11 Q. Okay. A. I believe she consulted with Mr. Briesacher to 12 13 14 15 Was she -- did you tell her to do that? I knew she was doing that, though. Do you know if anyone told her to do that? do that. Q. Okay. Let's go back -- let's look at page 662. 16 We have some redactions and they look like phone numbers 17 as well; is that correct? 18 A. Yes. 19 Q. There is a reference on page 62 next to the time 20 entry 4:54 that says code 21? 21 A. Yes. 22 Q. What's code 21? 23 A. That's a good count. 24 Q. What about 4:30, about code 20? 25 A. Code 20 is the announcement, radio announcement. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 83 of 174 DAVE DORMIRE 1/15/2014 Page 84 1 Code 20 is to count. 2 3 Q. Is to count and code 21 is that the count is cleared? 4 A. Yes. 5 Q. Code 21. 6 Okay. I have a list of redactions that I wanted to check on. 7 MR. HANSEN: Just so we're -- I'm just going to -- while we're 8 talking about it, my understanding is they redact because 9 their policy is to always redact phone numbers. Most of 10 the things that are redacted are phone numbers. If you 11 want the phone numbers for any specific one, we can get 12 you the phone numbers. 13 MS. CARLYLE: 14 They didn't redact them the first time. 15 MR. HANSEN: 16 MS. CARLYLE: So -I guess, you know, just for the 17 record, our objection is you can't just redact your 18 documents because you feel like protecting somebody. 19 They're documents. We ask that they be produced. 20 MR. HANSEN: 21 MS. CARLYLE: 22 MR. HANSEN: I'm telling you what they did. I understand what they did. And I'm telling you if -- we -- if 23 you want all the phone numbers, we'll talk to them. 24 can probably get you all the phone numbers. 25 MS. CARLYLE: www.midwestlitigation.com We I'd say everything that's redacted MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 84 of 174 DAVE DORMIRE 1/15/2014 Page 85 1 in these documents that doesn't pertain to the identity of 2 the execution team we would like unredacted. 3 4 MR. HANSEN: Q. Okay. (By Ms. Carlyle) I guess I'm just -- I'm taking a 5 second to kind of go over these to determine if there are 6 any I really need to ask him for rather than ask him on 7 every page and did you redact phone numbers. 8 give me just a second, I think I can -- it may look like 9 we're not doing anything, but we'll actually speed things 10 So if you up a little. 11 MR. HANSEN: And I -- while we're on the record, 12 since I just -- we just had this conversation about phone 13 numbers and providing those, I think I said that we would 14 provide those that aren't on the execution team or that 15 would reveal the execution team and my co-counsel has 16 pointed out that there may be some phone numbers that we 17 think are still protected as that they're protected as a 18 state secret, principally -- 19 MR. SPILLANE: 20 MR. HANSEN: 21 MR. SPILLANE: The laboratory. -- the testing lab. The laboratory is not a member of 22 the execution team, but they've been declared a state 23 secret. 24 MS. CARLYLE: 25 MR. HANSEN: www.midwestlitigation.com Okay. I wanted to make that clear. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 85 of 174 DAVE DORMIRE 1/15/2014 Page 86 1 MS. CARLYLE: Okay. And similarly, I mean, just 2 for example, on page 718, I think there's an address of 3 a -- of an offender witness that's redacted. 4 know, as I say, if it's not -- if there's not -- it 5 doesn't have to do with your state secret or execution 6 team privilege, we'd ask that all the redactions be 7 removed. 8 MS. BORESI: 9 (Off the record.) 10 Q. I mean, you And off the record. (By Ms. Carlyle) Let me -- let me show you again 11 your responses to the third set of interrogatories, and 12 I'm handing them to you open to page seven so you can see 13 them -- your response to interrogatory five. 14 asked to specify the tasks each member of the medical 15 personnel will do and what you did there was to say 16 medical personnel will do this and medical personnel will 17 do that. 18 does. 19 set out there, who does what, please do that. 20 21 22 23 24 25 You were What we're trying to get at is what each member So if you can tell us now, of the tasks that you A. Okay. MR. HANSEN: Hang on just a second. Did you -- again, you didn't identify this as an exhibit, right? MS. CARLYLE: No. These are his responses to interrogatories. MR. HANSEN: www.midwestlitigation.com Right. I just want to make sure MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 86 of 174 DAVE DORMIRE 1/15/2014 Page 87 1 I've got this clear for the record. 2 MS. CARLYLE: 3 MR. HANSEN: 4 A. Okay. Go ahead. M5 would prescribe. M6 would supply, compound 5 and supply the Pentobarbital. 6 prepare and label the syringes. 7 together determine most appropriate location for 8 introduction of intravenous lines. 9 Q. 10 A. M2 and M3 together. 11 Q. Okay. 12 M2 and M3 together would And M2 and M3 would (By Ms. Carlyle) That's part of M2's job as well? So who monitors? Which of the two monitors the prisoner during the execution? 13 A. Oh, next page. 14 Q. Okay. 15 A. Both M3 and M2. Both M2 and M3 evaluate the 16 prisoner to confirm death. 17 disposal of unused chemicals. 18 personnel, either M2 or M3, signs the sequence of chemical 19 form. 20 chemical log indicating the quantities of chemicals used 21 and the quantities discarded. One of the medical And either M2 or M3 would complete and sign the 22 Q. Okay. 23 A. There's that. 24 Q. Thank you. 25 Both M3 and M2 are involved in Let's take a look at page 722. MR. HANSEN: www.midwestlitigation.com Again, for the record, we're going MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 87 of 174 DAVE DORMIRE 1/15/2014 Page 88 1 back to Exhibit 1. 2 3 MS. CARLYLE: And I appreciate your saying that. 4 MR. HANSEN: 5 MS. CARLYLE: 6 A. 8 Q. 10 That's all right. 7 -- We're going to take a look at page Yes. (By Ms. Carlyle) And 723. you might as well grab them both. While you're there, Okay. Page 722 is -- what is it? 11 A. 722 is the chemical log. 12 Q. Okay. 13 I keep forgetting to. 722. 7 9 We're going back to Exhibit 1. And it has signatures, if you can call them that, of M3 and M2, correct? 14 A. That's correct. 15 Q. Okay. Signing as M3 and M2. And then there are 16 two signatures showing that it's been approved. 17 tell me whose signatures those are? Can you 18 A. One is myself and one is Director Lombardi. 19 Q. Okay. 20 21 MR. HANSEN: Can we stop just for about 30 seconds? 22 MS. CARLYLE: 23 (Off the record.) 24 MS. CARLYLE: 25 Q. Sure. Okay. Back on the record. (By Ms. Carlyle) Does page 722 reflect that www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 88 of 174 DAVE DORMIRE 1/15/2014 Page 89 1 Versed was used? 2 A. Yes. 3 Q. And what was that used for? 4 A. I believe that was used as a sedative. 5 Q. Is -- is Versed a part of the written execution 6 protocol? 7 A. Not -- not named, no. 8 Q. What's the purpose of a sedative during the 9 execution? 10 A. We are -- our protocol directs us to offer a 11 sedative and then also allows the doctor to issue one if 12 he believes it's needed based on -- I don't know if it's 13 the doctor by themselves or the doctor with the director's 14 approval. 15 16 Q. administer the sedative? 17 18 19 20 21 Well, what would be the criteria for deciding to A. First criteria is that the offender requests Q. Right. one. But after that, assuming the offender doesn't request one? A. I don't have it in front of me, but there is a 22 notation about -- in protocol about a sedative can be 23 given. 24 25 Q. I understand that there's a notation that a sedative can be given. www.midwestlitigation.com I'm just asking why would a MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 89 of 174 DAVE DORMIRE 1/15/2014 Page 90 1 sedative be given, other than at the request of the 2 offender? 3 A. I can think of scenarios where an offender would 4 be out of control and that would be needed, but I don't 5 know that. 6 Q. Okay. 7 A. M2, M3. 8 Q. Okay. 9 administered? So who administers the sedative? And is that administered -- how is it Is it oral or injected or -- 10 A. I don't know. 11 Q. Okay. 12 13 In relation to the execution itself, at what time is it administered? A. There's a specific time ahead of the execution 14 it's to be offered if the execution is on schedule. 15 it's -- then I know there's -- I mean, less time if they 16 were not on schedule. 17 Q. Okay. Then So it was sometime before. Now, page 722 also reflects that -- if 18 I'm reading it correctly, that five grams of Pentobarbital 19 were used and five grams were returned. 20 reading of page 722? Is that a fair 21 A. Yes. 22 Q. Where were they returned to? 23 A. They were not -- not -- they were returned to 24 the counter, I believe, but not -- certainly not returned 25 to a pharmacy. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 90 of 174 DAVE DORMIRE 1/15/2014 Page 91 1 2 Q. Okay. So do you have any idea why the notation returned in the column called amount discarded was made? 3 A. No. 4 Q. In fact, was the unused -- what happened to the 5 unused Pentobarbital? 6 A. They were destroyed. 7 Q. Okay. 8 A. No. 9 Q. Okay. 10 So it's not saved for the next execution? Let's take a look if we can at page 15 -- well, 1142, actually. 11 A. Okay. 12 Q. So I guess, first of all, my question is are 13 1142 and 723 the same thing? 14 A. They appear to be. 15 Q. Okay. 16 A. Yes. 17 Q. Okay. And 1524 and 1541. 18 MR. HANSEN: 19 (Off the record.) 20 A. 21 Q. Off the record. Okay. (By Ms. Carlyle) Both of those two documents 22 mention a -- a person named Wampler on 1524, he is 23 identified as CO1 Wampler and on 1541 he's identified as 24 Travis Wampler. 25 related to the family who was the victim of now executed www.midwestlitigation.com Are you aware of whether that person is MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 91 of 174 DAVE DORMIRE 1/15/2014 Page 92 1 prisoner Richard Oxford? 2 A. I have no idea. 3 Q. Okay. 4 5 MR. HANSEN: Oxford that you mentioned? 6 MS. CARLYLE: 7 MR. HANSEN: 8 MS. CARLYLE: 9 10 What was the name, first name of Q. Richard. Richard Oxford? Yeah. (By Ms. Carlyle) Can you take a look, please, at 1334 and 1335? 11 A. Okay. 12 Q. Can you tell me what the difference is between 13 14 those two documents? A. There's additional names. This one appears to 15 be simply a state witness list and one appears to be both 16 a state witness list, an offender witness list and a 17 victim's witness list. 18 Q. 19 20 MR. HANSEN: numbers. 21 22 23 Okay. Which ones did you say? MS. CARLYLE: I say? I think I may have the wrong We're looking at 1334 -- what did 1334 and 1335. MR. HANSEN: I wrote down the right numbers, but 24 I'm looking at the wrong numbers. 25 second until I get to that page, I'd appreciate it. www.midwestlitigation.com If you'd hang on just a MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 92 of 174 DAVE DORMIRE 1/15/2014 Page 93 1 MS. CARLYLE: 2 3 A. Okay. The names appear -- as far as state witness, they appear to be the same, as far as the names. 4 Q. (By Ms. Carlyle) I see. 5 2043. 6 photograph of? Okay. And let's take a look at What -- that's a photograph. What's it a 7 A. It's a photograph of four syringes. 8 Q. Okay. 9 Can you tell me the nature of the information that's redacted on those syringes? 10 A. It would be the name of the pharmacy. 11 Q. Okay. Can you tell me what -- can you just tell 12 me what 2015 is, what it's for? 13 MR. HANSEN: 14 MS. CARLYLE: 15 MR. HANSEN: Which page? 2015. It would have been a lot easier if 16 you went to chronological order. 17 MS. CARLYLE: I know. 18 A. It is a count report. 19 Q. (By Ms. Carlyle) 2015? 20 A. What? 21 Q. 2015. 22 A. I'm sorry. 23 Q. That's okay. 24 A. 20 -- I'm sorry. 25 Q. That's okay. www.midwestlitigation.com I was going to say wait a minute. There are a lot of notes. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 93 of 174 DAVE DORMIRE 1/15/2014 Page 94 1 A. I've got to go back the other way. 2 Q. I don't think so. 3 A. 2015. 4 MR. HANSEN: 5 MS. CARLYLE: 6 7 8 9 A. That's it. 2015, yeah, that's what I have. Huh. That is a -- hang on a second, because that's not what I have either. Q. (By Ms. Carlyle) Yeah. Well, it is, but it doesn't have -- it was just cut off. I think what 10 happened was the top was cut off because at the top of 11 mine, which you're welcome to see, it says State Witness 12 Briefing, DAI Director. 13 14 A. Yes, yes. That is the statement I read to the -- 15 MR. HANSEN: For the record, the only thing 16 missing is the bolded title that's centered at the top of 17 the page. 18 19 20 MS. CARLYLE: A. Okay. But that is the debriefing statement that I read to them. 21 Q. 22 A. 23 Okay. (By Ms. Carlyle) The debriefing statement? It's a -- sorry, a brief -- a briefing that I read to the state's witnesses. 24 Q. Okay. 25 A. Prior to the execution. www.midwestlitigation.com And when do you do that? Prior to moving them to MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 94 of 174 DAVE DORMIRE 1/15/2014 Page 95 1 2 3 the area where they'll watch the execution. Q. I can't figure out why the sun is in my eyes here, but is there anything -- 4 MR. HANSEN: 5 MS. CARLYLE: 6 Because it's setting. Yeah, right. perfect. 7 MS. BORESI: 8 MS. CARLYLE: 9 (Off the record.) 10 11 12 Yeah, there we go, MS. CARLYLE: Q. It was reflecting. Okay. Okay. Back on the record. (By Ms. Carlyle) So that -- does that mean that for each execution, you're actually at the prison? 13 A. Yes. 14 Q. Do you witness the execution? 15 A. Yes. 16 Q. Okay. 17 And so you were -- this is -- this is a statement that you read to all of the -- 18 A. State's witnesses. 19 Q. Okay. And who -- not by name, but what -- can 20 you tell me what the category of state's witness includes? 21 Who are those people? 22 A. It is -- the last two times it has included some 23 media, but it is people that apply to be a state -- a 24 witness for the state. 25 Q. Okay. www.midwestlitigation.com Are they a different group of people than MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 95 of 174 DAVE DORMIRE 1/15/2014 Page 96 1 the people who are, say, families of the victim? 2 A. Yes. 3 Q. So those aren't state witnesses under this 4 category? 5 A. Correct. 6 Q. And people who are friends or relatives of the 7 person who's been executed, are they state witnesses? 8 A. No. They are separate. 9 Q. Okay. Well, speaking -- actually, that's an 10 interesting segue into what we're going to talk about 11 next, which is the witnesses to the Joseph Franklin 12 execution. 13 witnesses left the institution before the execution 14 occurred? Are you aware that the -- that Mr. Franklin's 15 A. Yes. 16 Q. Okay. You stated in the response to your -- to 17 the fourth interrogatories that you didn't know whether 18 anyone had tried to notify them or counsel at the specific 19 time when the execution was starting; is that correct? 20 21 A. I don't remember that question on interrogatories -- 22 Q. Okay. 23 A. But I do not know that. 24 Q. I'm not sure what happened to the fourth ones. 25 A. This one? www.midwestlitigation.com Let's take a look at that. That's true. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 96 of 174 DAVE DORMIRE 1/15/2014 Page 97 1 2 Q. Yep. It's the answer to interrogatories six and seven. 3 A. Yeah, I do not know. 4 Q. So who would know that? 5 A. Whether an attempt was made? 6 Q. Yes. 7 A. Someone at the institution would know that. 8 Q. You were at the institution? 9 A. I was, I was. 10 Q. Okay. 11 A. I was not in the administration building. 12 down at the -- in the support room. 13 14 Right. MR. HANSEN: I was So I -- Describe to her whoever that person would be, the job title or if you know the name. 15 THE WITNESS: It would be -- there would be one 16 or two people. 17 responsible for at least -- I was aware they had left, but 18 I don't know whether they tried to contact them or asked 19 to be contacted. 20 21 Q. It could be the deputy warden level I don't know any of that information. (By Ms. Carlyle) Okay. I know, but I'm trying to figure out who does so we can ask that person. 22 A. I do not know. 23 Q. Okay. 24 A. It could be a deputy warden, yes. 25 Q. So who are the deputy wardens? www.midwestlitigation.com You said might be the deputy warden? MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 97 of 174 DAVE DORMIRE 1/15/2014 Page 98 1 A. The two deputy wardens -- the one -- the one was 2 in the room with me, so I know it was not him. 3 one is Jason Lewis. 4 5 6 Q. The other And what was Jason Lewis's job on the day of the execution? A. Specifically, I don't know. He was coordinating 7 things, managing the security operation, things like that 8 and moving -- you know, he had some involvement with 9 moving witnesses and things like that. 10 11 Q. Okay. ask if you wanted the answer to that question? 12 A. Yes. 13 Q. Okay. 14 But he would be the person that you would Did you ask him before you did your interrogatory responses? 15 A. No. 16 Q. Okay. Are you aware that Joseph Franklin had 17 requested someone to be there as a minister for him as a 18 witness? 19 A. I'm not specifically aware of his requests, no. 20 Q. Okay. 21 A. Okay. 22 Q. Does that indicate that he's requested a 23 24 25 Let's take a look at page 1336. minister? A. It says ministerial counselor, Tom Cummins, just the name on there. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 98 of 174 DAVE DORMIRE 1/15/2014 Page 99 1 2 Q. Okay. And was Mr. Cummins there when Mr. Franklin was executed? 3 A. I do not believe so. 4 Q. In fact, none of Mr. Franklin's witnesses were 5 there, were they? 6 A. No. 7 Q. Who would have been in -- you know, physically 8 in a position to communicate with the witnesses when they 9 left? 10 11 12 A. them. There were staff members assigned to stay with I don't know those names. Q. Okay. If they had -- if the witnesses had said 13 to the staff members we are leaving, but we would like to 14 be contacted if things change, what would the re -- how 15 should the staff members have responded? 16 17 18 A. How should -- they should have said give me a phone number, I can call you. Q. Okay. In the event there was a pretty short 19 interval between the expiration of the stay of execution 20 and the actual execution, correct? 21 A. Pardon? 22 Q. Mr. -- when Mr. Franklin was executed, he was 23 executed pretty quickly after the stay of execution was 24 vacated? 25 MR. HANSEN: www.midwestlitigation.com Objection, form of the question. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 99 of 174 DAVE DORMIRE 1/15/2014 Page 100 1 It's ambiguous as to what quickly is. 2 the degree you can. 3 A. 4 Q. 5 8 9 10 I believe it was less than an hour, yes. (By Ms. Carlyle) Okay. Why was it decided to obtain a prescription for the Pentobarbital? 6 7 You can answer to MR. HANSEN: I'm going to -- objection to the form of the question in that it lacks foundation. A. I believe the pharmacy -- the pharmacy required a prescription. Q. (By Ms. Carlyle) Okay. And how did you -- how 11 did you, meaning the -- how did the Department of 12 Corrections determine who would write the prescription? 13 14 A. Mr. Briesacher came up with the name of the person that would -- the doctor that would do so. 15 Q. Did you ask M3 to write the prescription? 16 A. Pardon? 17 Q. Did you ask M3 to write the prescription? 18 A. I did not, no. 19 Q. Did anyone, to your knowledge? 20 A. I don't know that. 21 Q. Would there be any reason, if M3 had been 22 willing to write the prescription, why you shouldn't? 23 A. I don't know. 24 Q. Okay. 25 Do you know how many -- do you know anything about the process that Mr. Briesacher went www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 100 of 174 DAVE DORMIRE 1/15/2014 Page 101 1 through to come up with a name? 2 A. No. 3 Q. Did you take bids for that job? 4 A. I did not, no. 5 Q. Did Mr. Briesacher? 6 A. I don't know. 7 Q. Is the person who writes the prescription 8 licensed in Missouri? 9 MR. HANSEN: Hang on a second. I am going to 10 object to that question for the reasons we've talked about 11 earlier about the fact that the answer to that question 12 could lead to information that would identify him and he's 13 been named as a member of the execution team and we've 14 asserted that that identity is a state secret. 15 objecting to that question and instructing him not to 16 answer. 17 18 19 20 MS. CARLYLE: Q. 21 Okay. (By Ms. Carlyle) When does the prescriber's medical license expire? A. So I'm Can you give me that date? I do not have that in front of me. MR. HANSEN: I'm going to object to that 22 question. I am unsure whether that information could lead 23 to the identity of the prescriber, but because similar 24 facts have apparently led to the discovery or purported 25 discovery of the identity of the pharmacy, I'm going to www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 101 of 174 DAVE DORMIRE 1/15/2014 Page 102 1 object. 2 MS. CARLYLE: 3 MR. HANSEN: And direct him not to answer. Direct him not to answer. He 4 certainly can tell you whether or not he knows the answer 5 to that question, but I'm going to direct him not to 6 answer the question. 7 8 9 A. I have seen the license, but I do not know the date. Q. (By Ms. Carlyle) Okay. Did the person who 10 prescribed the -- first of all, was it the same person who 11 prescribed the Pentobarbital for both Mr. Franklin and 12 Mr. Nicklasson? 13 A. Yes. 14 Q. Did that person examine Mr. Franklin or 15 Mr. Nicklasson before he wrote the prescription? 16 17 MR. HANSEN: Objection to the form of the question because it lacks foundation. 18 A. 19 Q. 20 A. No. 21 Q. Did he examine Mr. Franklin or Mr. Nicklasson's 22 No. (By Ms. Carlyle) No, he didn't? medical records before writing the prescription? 23 A. No. 24 Q. There are a bunch of copies of the 25 prescriptions, but let's take a look at 1254. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 And is the Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 102 of 174 DAVE DORMIRE 1/15/2014 Page 103 1 date on the prescription redacted? 2 A. No. 3 Q. Can we see it? 4 A. I see it as 11-12 of '13. 5 MR. HANSEN: 6 MS. CARLYLE: 7 MR. HANSEN: 8 11 Can I come look at your copy? Sure. For the record, you're looking at your monitor on your computer. 9 10 I can see it on my copy. MS. CARLYLE: I'm looking at my monitor on my computer and it's not -- oh, I see. Q. Okay. That's fine. (By Ms. Carlyle) And the other redactions, I 12 assume, are the -- are things that would identify the 13 prescriber; is that true? 14 A. Yes. 15 Q. The prescription that we have there says, "SIG 16 as ordered per death warrant;" is that a fair reading of 17 what's on there? 18 A. Yes. 19 Q. And whose language is that? Who -- is that 20 something that the prescriber came up with to put on there 21 or something that the prescriber was directed to put on 22 there by you or someone else? 23 A. That is the prescriber's language. 24 Q. Okay. 25 copies in here. www.midwestlitigation.com Was -- as I said, there are lots of Was there more than one prescription MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 103 of 174 DAVE DORMIRE 1/15/2014 Page 104 1 issued for Mr. Franklin -- you know, per patient for 2 Mr. Franklin and Mr. Nicklasson? 3 4 A. There were generally just the -- two, one for five grams each. 5 Q. There were two prescriptions, one for five grams 7 A. Yes. 8 Q. Why were there two? 9 A. That's the way we asked them to do it. 10 Q. Why did you ask them to do it that way? 11 A. That's -- that was the way we asked them. 12 Q. But, I mean, they -- if you wanted 10 grams, why 6 13 14 15 16 17 each? didn't you ask them to issue a prescription for 10 grams? A. question. Q. Mr. Briesacher would have to answer that That was the way he asked that it be done. Okay. Page 1262. Is that the agreement between the Department of Corrections and the prescriber? 18 A. Yes. 19 Q. Okay. Paragraph two says, "The contractor will 20 provide the Department, upon request, with the requested 21 prescriptions in the name of the offender to be executed." 22 Does that give the prescriber any medical discretion to 23 refuse to issue a prescription? 24 MR. HANSEN: 25 question. Object to the form of that I think it's vague, confusing and calls perhaps www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 104 of 174 DAVE DORMIRE 1/15/2014 Page 105 1 for a legal conclusion and an expert opinion. 2 the degree you can. 3 4 5 A. Answer to It simply says contractor will provide the Department with the requested prescriptions. Q. (By Ms. Carlyle) Okay. So in order to -- in 6 order to fulfill his contract when he's requested to do 7 so, he has to write the prescription? 8 A. That's what it says. 9 Q. Okay. How much Pentobarbital -- compounded 10 Pentobarbital does the Department of Corrections have on 11 hand at the moment? 12 A. Ten grams. 13 Q. And is that for Mr. Smulls' execution? 14 A. Yes. 15 Q. Is new Pentobarbital ordered for each execution? 16 A. Yes. 17 Q. If that -- and that Pentobarbital is scheduled 18 to be used on January 29? 19 A. Yes. 20 Q. If Mr. Smulls -- if Mr. Smulls' execution 21 doesn't occur, what would happen to that Pentobarbital? 22 A. It would be destroyed. 23 Q. You indicated in your interrogatory response 24 that the pharmacy said to store the Pentobarbital at room 25 temperature? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 105 of 174 DAVE DORMIRE 1/15/2014 Page 106 1 A. That's correct. 2 Q. Okay. 3 First of all, to whom was that communication made? 4 A. To me. 5 Q. Okay. 6 A. No. 7 8 9 Was it in writing? It was -- that was a verbal statement to me when I asked how to store it. Q. Okay. Recognizing that you're not going to -- let me put it this way. 10 A. Yes. 11 Q. Okay. Do you know who told you that? I understand you're not going to tell me 12 now, but if you were directed to -- if you were told that 13 the identity were not privileged, you wouldn't say I don't 14 know who told me that. You know. 15 A. Yes. 16 Q. You also said that you had been told that the 17 Pentobarbital expires 30 days after compounding; is that 18 correct? 19 A. Yes. 20 Q. Is there a writing that reflects that? 21 A. There's not a writing that I know of. It is 22 in -- it is clearly reflected in the labels of the discard 23 date and what -- it confirms what I've been told, that it 24 is good for 30 days. 25 Q. Okay. www.midwestlitigation.com But you -- were you also told that MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 106 of 174 DAVE DORMIRE 1/15/2014 Page 107 1 verbally? 2 A. By Mr. Briesacher. 3 Q. Okay. 4 5 You weren't told that by anyone at the pharmacy? A. It's -- I believe the subject came up in 6 conversations regarding the discard date and it was -- in 7 our conversations, it was generally assumed that we had 8 to -- I could not request the pharmacist to compound 9 Pentobarbital over 30 days before an execution date. 10 11 Q. Okay. conversation with? 12 A. Yes. 13 Q. Okay. 14 15 16 And do you know who you had that Has anyone explained to you why it lasts 30 days rather than some other length of time? A. Not in great detail. I know bits and pieces, but not in great detail. 17 Q. What are the bits and pieces that you know? 18 A. Simply -- there's references to ensuring that 19 it's sterile, there's things like that, that it's -- my 20 understanding is that is a conservative estimate, that it 21 is still an appropriately prepared substance well beyond 22 that, but that's the day they picked to use by. 23 24 25 Q. Okay. MR. HANSEN: Elizabeth, it is 5:15 and we've been going a pretty good chunk here. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 107 of 174 DAVE DORMIRE 1/15/2014 Page 108 1 MS. CARLYLE: 2 MR. HANSEN: 3 Could we take a quick five-minute break? 4 5 True. MS. CARLYLE: Let's go off the record for a second. 6 (Off the record.) 7 MS. CARLYLE: Okay. Back on the record. 8 10 20 21 Q. Okay. Pentobarbital used for training? 22 A. No. 23 Q. Okay. 24 25 Now, is there other compounded So the -- when the -- when the training occurs, it's not done with Pentobarbital? A. The director can give us authority to use saline www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 108 of 174 DAVE DORMIRE 1/15/2014 Page 109 1 2 3 4 5 6 7 solution. Q. And is that what's been happening with respect to the -A. That is what happened the training we had prior to the executions, yes. Q. Okay. So has there only been one training prior to the executions? 8 A. Yes. 9 Q. Okay. Now, you've ordered -- you're ordering 10 Pentobarbital, I guess, in batches of ten grams, but 11 there's some additional Pentobarbital that's needed for 12 testing, isn't there? 13 A. That's my understanding, yes. 14 Q. Okay. 15 So what -- so what's the actual amount that you get from the laboratory -- from the pharmacy? 16 A. I get 10 grams. 17 Q. Okay. Okay. So if we look at page 1311, let's 18 do that. 19 the chain of custody for Pentobarbital before the 20 execution of Joseph Franklin? And is that -- is that the log of -- that -- of 21 A. Yes. 22 Q. Okay. 23 So it tells us that on November 19 at 2105, which I think is 9:05 P.M., isn't it? 24 A. I think so, yes. 25 Q. Mr. Spillane is nodding his head vigorously. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 109 of 174 DAVE DORMIRE 1/15/2014 Page 110 1 2 Okay. That M3 received the Pentobarbital, correct? A. That's correct. Q. No, but I mean the Pentobarbital itself, is it 3 11 12 in syringes or bottles? 13 A. Oh, it's in syringes. 14 Q. So it comes to you in syringes? 15 A. Yes. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 110 of 174 DAVE DORMIRE 1/15/2014 Page 111 1 2 MS. CARLYLE: Would you mark that as 7 for us, please? 3 (Exhibit No. 7 marked for identification.) 4 MR. HANSEN: 5 What is she marking, 7, did you say? 6 MS. CARLYLE: She is marking 7 and it is the 7 affidavit of Dave Dormire filed, according to the ECF 8 notations at the bottom, on December 3, but also, I think, 9 filed in the Missouri Supreme Court on November 15 of 2002 10 by the State. 11 him? Do you need to see it before I show it to 12 MR. HANSEN: 13 MS. CARLYLE: 14 MR. HANSEN: 15 MS. CARLYLE: 16 17 18 19 20 21 22 23 24 25 Q. Yeah, I do. Okay. There you go. Okay. (By Ms. Carlyle) What was the -- the purpose of this affidavit? A. My memory was it was to talk about the issue of a peripheral line versus a central line. Q. Okay. And why did you feel the need to talk about that? A. It was my understanding there was some confusion over the way it was worded in our protocol. Q. In paragraph six of the -- of your affidavit on page one of Exhibit 7 you say, "If the prisoner's medical www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 111 of 174 DAVE DORMIRE 1/15/2014 Page 112 1 condition allows, both the primary and secondary lines 2 will be inserted as peripheral lines." 3 that statement on? 4 understand you're not a physician, so you're not inserting 5 any lines. 6 A. What did you base You're not going to insert -- I Sure, sure. That was -- that was to allow the 7 medical personnel to determine the appropriate placement 8 of the line. 9 Q. Well, the protocol itself says, and you quote it 10 in paragraph five, medical personnel shall determine the 11 most appropriate locations for intravenous lines, does it 12 not? 13 A. It does. 14 Q. Okay. 15 16 So was this intended to give them additional criteria to use? A. My intent of this was to just simply clear up -- 17 there must have been some -- I believe there was some 18 confusion over how it was worded, but this was to give 19 them clearer direction on it. 20 21 Q. Okay. Now, is this affidavit now part of the execution protocol? 22 A. Pardon? 23 Q. Is this affidavit now part of the execution 24 25 protocol? A. I don't believe this affidavit itself is, no. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 112 of 174 DAVE DORMIRE 1/15/2014 Page 113 1 Q. Okay. 2 A. It may be worded that way, but I don't -- I 3 4 don't remember. Q. Okay. Is there some reason why this statement 5 about the -- both lines being peripheral if the condition 6 allows isn't in the protocol? 7 A. Pardon? 8 Q. Why isn't that statement, "If the prisoner's 9 medical condition allows, both primary and secondary lines 10 will be inserted as peripheral lines," why isn't that 11 statement in the protocol? 12 13 14 MR. HANSEN: Objection, form of the question in that it lacks foundation. A. I can't answer exactly why it isn't written in 15 the protocol. 16 personnel, but I can't answer that question. 17 18 19 20 21 Q. It has been communicated to the medical (By Ms. Carlyle) Did you consult with a physician before you prepared this affidavit? A. I didn't personally. There was some discussion, but I believe Mr. Briesacher did the consulting. Q. Okay. Did you intend that this affidavit 22 supersede M3's medical judgment about the most appropriate 23 location for intravenous lines? 24 A. No. 25 Q. Okay. www.midwestlitigation.com Let's talk about the laboratory for a MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 113 of 174 DAVE DORMIRE 1/15/2014 Page 114 1 little bit. 2 the pharmacy? 3 Is the laboratory a different business than Are the two connected, the two businesses? MR. HANSEN: I'm going to object, again, for the 4 same reasons that you now have indicated that -- today 5 that you know who that pharmacy -- that you personally 6 know who that pharmacy is and the answer to that question 7 might identify who the lab is, which we asserted is -- 8 9 MS. CARLYLE: Well, I am under a court order, Mr. Hansen, not to reveal that information and I don't 10 intend to and I've known it for some time. 11 me to go get a lawyer who doesn't know who -- who didn't 12 read that to ask that question, I will. 13 MR. HANSEN: 14 know today. 15 record. 16 17 18 19 20 So if you want But I think -- It's not a question of what you It's a question of what is going to be in the And that's why I'm inserting the objection -MS. CARLYLE: Okay. was that you knew I knew. MR. HANSEN: But what you just mentioned That's not in the record. I don't know if you know. You told me you know. MS. CARLYLE: I understand that. But the words 21 that I know are not in the record and won't be. 22 you they won't be and they won't be and if they were, of 23 course, you'd have the right to have the record sealed and 24 we could argue about that. 25 So I think we're entitled to know, given the fact that www.midwestlitigation.com I've told But the fact is they're not. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 114 of 174 DAVE DORMIRE 1/15/2014 Page 115 1 your position is that these drugs are validated by 2 testing, whether there is a connection between the 3 laboratory that tests them and the pharmacy that makes 4 them. And that's what I'm asking. 5 MR. HANSEN: Let me take a moment and discuss it 6 with my co-counsel and make a decision. 7 withdraw the objection as you described your purpose. 8 MS. CARLYLE: 9 MR. HANSEN: 10 A. 11 Q. Okay. We'll Okay. And allow him to answer. Now I've got to ask you to restate. (By Ms. Carlyle) Fair enough. The question is is 12 there a -- is there a business -- is there a connection 13 between the laboratory and the pharmacy other than that 14 the laboratory is doing testing for the pharmacy? 15 there a business connection between the two entities? Is 16 A. I do not know. 17 Q. Okay. 18 A. I do not know that. 19 Q. There is a contract between the laboratory -- or How is the laboratory chosen? 20 is there a contract between the laboratory and the 21 Department of Corrections? 22 A. I'm -- I do not know that. 23 Q. Okay. 24 25 MS. CARLYLE: Can we go off the record for a second? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 115 of 174 DAVE DORMIRE 1/15/2014 Page 116 1 (Off the record.) 2 Q. (By Ms. Carlyle) Okay. Well -- okay. I think 3 we'll kind of get to it because I think we had some 4 evidence of payments to the laboratory, but we'll see when 5 we get a little further on. 6 1294. 7 redacted on that document? 8 9 10 Can you tell me what sort of information is A. It appears to be a date that it's valid, a certification number and another certification number. Q. Okay. 11 MR. HANSEN: 12 MS. CARLYLE: 13 (Off the record.) 14 Take a look, please, at page Q. Can we take just a minute? Sure. (By Ms. Carlyle) Do you -- are you familiar with 15 the business organization the American Association for 16 Laboratory Accreditation? 17 A. Yeah. 18 Q. Do you know whether anyone -- did you determine 19 whether accreditation by the American Association for 20 Laboratory Accreditation was a reflection of the quality 21 of a laboratory? 22 A. I did not. 23 Q. Okay. Looking at page 1306, is the -- okay. I 24 guess one thing that I find that's odd about this is that 25 it appears that there's no name on this accreditation www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 116 of 174 DAVE DORMIRE 1/15/2014 Page 117 1 redacted or unredacted. 2 somehow redacted in white? Is that the case or was it 3 A. I don't know the answer to that. 4 Q. Is there a way to look at the unredacted 5 document and see? 6 MR. HANSEN: 7 have it handy, but -- 8 9 A. I don't know that I have that document, but I assume we do somewhere. 10 MR. HANSEN: 11 answer to that. 12 that question. 13 I don't know if you know if you Q. I don't have it in my little -And I suspect Matt might know the Matt Briesacher might know the answer to (By Ms. Carlyle) Is the accreditation reflected 14 on page 1306 and the accreditation reflected on page 1294 15 for the same laboratory? 16 A. That would be my belief, yes. 17 Q. Okay. And that would be the laboratory that's 18 been conducting the analysis reports that we have been 19 receiving? 20 A. Yes. 21 Q. Okay. Tell us how that -- how that testing 22 process works. 23 get the drugs to test? 24 from the pharmacy or where? 25 A. Do -- does -- where does the laboratory Do they get it from the DOC or They are sent drugs from the pharmacist. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 117 of 174 DAVE DORMIRE 1/15/2014 Page 118 1 Q. Okay. So when part -- when the drugs are sent 2 from the pharmacy for laboratory testing, are they the -- 3 are they part of the same batch, for want of a better 4 word, then as the drugs that are going to be sent to the 5 DOC? 6 A. That's my understanding. 7 Q. Okay. So who's responsible for getting the -- 8 for getting the drugs to the -- I mean, is there a 9 particular person that you're aware of, even if you're not 10 willing to identify him or her, who's responsible for 11 transmitting the drugs to the laboratory? 12 A. Yes. 13 Q. Okay. 14 It's M6. And is there a particular person at the laboratory who is responsible for receiving them? 15 A. I do not know that. 16 Q. Does the -- is there someone at the laboratory 17 that has an M number? 18 A. No. 19 Q. Okay. On page 1257, first of all there's a -- 20 there is a redaction at the top that's listed as client. 21 Again, without -- I know you're probably not going to tell 22 me what's there, but what sort of -- is that the 23 pharmacist, the pharmacy, the -- what sort of thing -- 24 what sort of information is crossed out there? 25 A. I'm not sure. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 118 of 174 DAVE DORMIRE 1/15/2014 Page 119 1 Q. Okay. 2 A. I don't know exactly. 3 Q. Do you know what's crossed out at the lower 4 Why is the lot number crossed out? right-hand corner? 5 A. Not specifically, no. 6 Q. Okay. On 1266, can you tell us the nature of 7 the information that's re -- well, why the item number and 8 loss number are redacted? 9 A. No. 10 Q. Do you notice on that document that it reflects 11 a manufacturing date of 2011 and an expiration date of 12 2016? 13 A. Yes. 14 Q. At the upper left-hand corner? 15 A. Yes. 16 Q. So what is -- is that -- does this document 17 18 19 20 reflect an analysis of compounded Pentobarbital? A. I can't tell you that. I -- from the dates, I would assume not. Q. Okay. The bottom of that document says, "This 21 analysis is not to be construed as a warranty, expressed 22 or implied." 23 to you? 24 A. 25 What does -- do you -- what does that mean I take it the way it's worded, it's not a warranty. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 119 of 174 DAVE DORMIRE 1/15/2014 Page 120 1 Q. Okay. So essentially they're saying this is our 2 analysis, but we're not saying that -- we're not willing 3 to give you a warranty that it's true? 4 A. I can't answer your question on that. 5 Q. Do you know what laboratory or -- performed the 6 analysis reflected in 1266? 7 A. I am aware of the name of the laboratory, yes. 8 Q. Okay. 9 that's doing the other analyses? 10 11 So is it -- is that the same laboratory MR. HANSEN: the question. It's vague. 12 MS. CARLYLE: 13 MR. HANSEN: 14 Q. I'm going to object to the form of Just to clarify -- Sure. -- what you mean by the other. (By Ms. Carlyle) Let me put it this way. In the 15 collection of discovery that we've been given, there are 16 numerous analysis reports of various kinds. 17 this is an easy question. 18 same laboratory? Are they all performed by the 19 A. I would guess not. 20 Q. Okay. 21 22 23 MR. HANSEN: I mean, maybe Are you talking about the ones related to Pentobarbital? MS. CARLYLE: I don't think there are any 24 analyses -- I don't think there are any analyses that 25 aren't related to pentobarbital. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 120 of 174 DAVE DORMIRE 1/15/2014 Page 121 1 2 MR. HANSEN: I think that's right, I'm just not entirely sure. 3 MS. CARLYLE: 4 Q. Well, I'm -- (By Ms. Carlyle) Are all the analyses of 5 Pentobarbital performed by the same laboratory? 6 you're saying you don't think they are. 7 8 9 And A. The analysis of the compounded Pentobarbital, Q. Okay. yes. But we're not sure, for example, looking 10 at this document, 1266, exactly -- whether that's an 11 analysis of compounded Pentobarbital or not? 12 A. That's correct. 13 Q. And we also don't know what -- whether -- what 14 lab prepared this report; is that true? 15 A. I'm not sure, no. 16 Q. Okay. 17 If you looked at an unredacted copy, do you think that would shed some light on that? 18 A. I don't know. 19 Q. Okay. Similar questions about 1268. This is 20 entitled Certificate of Analysis and reflects a 21 manufacture date of May 11, 2013 and an expiration date 22 of -- maybe June 11, I don't know. 23 MR. HANSEN: 24 MS. CARLYLE: 25 Q. Which page are you on now? I'm on page 1268. (By Ms. Carlyle) And an expiration date of 2018. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 121 of 174 DAVE DORMIRE 1/15/2014 Page 122 1 Do you think that -- I mean, I guess let me ask you, would 2 your responses about this one be the same as they were 3 about the -- about 1266? 4 A. Yes. 5 Q. Okay. 6 What about 1285? compounded Pentobarbital? 7 A. I believe so. 8 Q. Okay. 9 Now, the redacted material at the top, would -- is that the name of the laboratory? 10 A. Yes, I believe so. 11 Q. Okay. Then the client is redacted and what -- 12 you know, what's that? 13 prescriber or -- 14 15 A. Q. That would be my belief, that that's the So in this context, the laboratory sees its client as the pharmacy? 18 MR. HANSEN: 19 20 Is that the pharmacy or the pharmacy. 16 17 Is that an analysis of Q. It's performing -Objection -- (By Ms. Carlyle) It's performing the analysis for the pharmacy. 21 MR. HANSEN: Object to the form of the question. 22 This witness doesn't know what the pharmacy sees the lab 23 as. 24 25 It calls for speculation on the part of this witness. MS. CARLYLE: Okay. I'm actually -- what I actually said was based on this document from the www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 122 of 174 DAVE DORMIRE 1/15/2014 Page 123 1 laboratory, the laboratory appears to see the pharmacy as 2 its client. 3 don't know what the pharmacy thinks. 4 5 I agree that the pharmacy doesn't know -- we MR. HANSEN: question. 6 MS. CARLYLE: 7 MR. HANSEN: 8 9 Yeah, I object to the form of the Q. Okay. Go ahead. (By Ms. Carlyle) And then, once again, you don't know why the lot number was removed? 10 A. I do not. 11 Q. And do you -- and you still don't know what's 12 redacted at the bottom right. 13 A. No, I don't. 14 Q. Okay. Let's take a look at page 1295. 15 is headed Microbiology Report. 16 of? 17 18 19 20 A. And this What's this an analysis I believe it is the Pentobarbital sodium solution. Q. Okay. What -- what batch of Pentobarbital sodium solution is this an analysis of, can we tell? 21 A. What batch? 22 Q. I mean, is it Pentobarbital sodium that's 23 intended for DOC? 24 A. That would be my belief, yes. 25 Q. Okay. www.midwestlitigation.com And at the bottom of this report, it MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 123 of 174 DAVE DORMIRE 1/15/2014 Page 124 1 says, "The results reported relate only to the sample that 2 was tested," correct? 3 A. Yes. 4 Q. Let's take a look at 2048. 5 MR. HANSEN: 6 MS. CARLYLE: 7 MR. HANSEN: 8 9 Q. before. 11 A. 12 13 2048. 2048. (By Ms. Carlyle) Is this a -- this is a letter to Mr. Briesacher. 10 You said 1208? Is it -- I think we've talked about it Is it -- does it reflect a bid by a laboratory? It says attached is the -- you will find the requested quotation. Q. All right. And does the fact that it's been 14 redacted mean that it was the -- it was a successful 15 quotation, that is, that it was one that was accepted or 16 would you have redacted it anyway? 17 A. I can't answer that specific question. 18 Q. Okay. If you looked at the unredacted document, 19 could you tell if it was from the lab that's actually -- 20 that's actually performing the testing? 21 22 23 24 25 A. I believe so. MS. CARLYLE: Okay. Okay. Let's go off the record for a minute here. MR. HANSEN: While we're still on the record, just so it's reflected, I don't know if you'll put it in www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 124 of 174 DAVE DORMIRE 1/15/2014 Page 125 1 here, but it's 6:05 P.M. now, just so we remember. 2 MS. CARLYLE: 3 (Off the record.) 4 5 Q. (By Ms. Carlyle) When did -- when did you get the Pentobarbital for Mr. Smulls' execution? 6 A. Yesterday. 7 Q. Okay. 8 Okay. 1295. Okay. Let's take a look at some money things. 1295 -- 1296. 9 A. 1296. 10 Q. 1296, I'm sorry. 11 A. Okay. 12 Q. Okay. 13 1296 reflects a payment of $1,200 to -- for the Joseph Franklin execution; is that correct? 14 A. Yes. 15 Q. And are these documents used -- they're called 16 Confidential Execution Team Member Receipt. 17 used to pay those members of the execution team whose 18 identities the Department is protecting? Are those 19 A. Yes. 20 Q. So the redacted material in the middle 21 presumably identifies the person who got the payment? 22 A. Yes. 23 Q. So this person obtained -- got $1,200 and that 24 25 was disbursed by Melissa Rohrbach? A. Rohrbach is the pronunciation. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 125 of 174 DAVE DORMIRE 1/15/2014 Page 126 1 2 Q. And does Miss Rohrbach work at -- work in this office or does she work in ERDCC or -- 3 A. She works in our finance office downstairs. 4 Q. Okay. 5 $1,200? 6 A. It's M2. 7 Q. That's M2. 8 A. Yes. 9 Q. I guess this is -- this is a -- a voucher for 10 So what was the job of the person who got Is that M2, M3? Turning to 1297. $3,000 for Joseph Franklin's execution. 11 A. This is M3. 12 Q. That's M3. 13 Okay. Okay. Let's switch. in -- let's look at 2058, I think. 14 MR. HANSEN: 15 MS. CARLYLE: 16 A. 17 Q. Who gets $3,000? There's -- 2057? 2058, is that what -Actually, 2057. Okay. (By Ms. Carlyle) Okay. Who gets -- this is for 18 the -- this is a payment of $11,091 for the execution of 19 Allen Nicklasson. Who gets that? 20 A. That's the pharmacy. 21 Q. Okay. 22 Now, the pharmacy's bid for the pentobarbital was $8,000, was it not? 23 A. That was correct. 24 Q. So what's the extra $3,091 for? 25 A. That was for testing. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 126 of 174 DAVE DORMIRE 1/15/2014 Page 127 1 Q. Okay. 2 A. Yes. 3 Q. Okay. 4 5 So the pharmacy collects the testing fee? Let's look at 1300. MS. CARLYLE: I promise by tomorrow I'll have these all on one thing and I won't have to do this. 6 MS. BORESI: You know M3 is going to be at a 7 remote location tomorrow and we won't have a way to get 8 documents to him. 9 MS. CARLYLE: Okay. He probably -- there 10 probably aren't a whole lot of documents he's going to 11 need, but that's an interesting issue. 12 we got him some. 13 14 MS. BORESI: MS. CARLYLE: Yeah. If we'd have them a week in advance, it would have been easier. 17 18 But you did it like a week in advance. 15 16 I think last time Q. (By Ms. Carlyle) Okay. 1300 is what? What is 1300? 19 A. That's a -- the receipt at the pharmacy. 20 Q. Okay. 21 is that right? And do we have -- and that's November 13; It's at the top. 22 A. Oh, yes; yes. 23 Q. I'm not trying to be tricky. 24 that -- well, let me just ask you this. 25 the pharmacy get paid? www.midwestlitigation.com Is that a receipt I mean, how does Does it -- do you send them a MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 127 of 174 DAVE DORMIRE 1/15/2014 Page 128 1 check or what happens? 2 A. I take them cash. 3 Q. You take them cash. 4 Is that also true for M2 and M3? 5 A. Yes. 6 Q. Okay. 7 Okay. And the -- so the $8,000 payment, the $11,000 payment were cash payments? 8 A. Yes. 9 Q. 1298. 11 A. M5. 12 Q. Okay. 13 A. The -- 14 Q. Prescriber? 15 A. Prescriber. 16 Q. Okay. 17 A. Susan is in our finance office. 18 Q. Okay. 10 19 1298 is a receipt for $300. Who gets $300? And M5 is? And who is Susan Wood? And is that -- so is that also a cash payment? 20 A. Yes. 21 Q. Okay. What -- is there a -- is there an 22 internal document that says that these people are to be 23 paid in cash? 24 made the decision to pay them in cash, I guess is the 25 question? www.midwestlitigation.com How does that -- how does that happen? MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Who Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 128 of 174 DAVE DORMIRE 1/15/2014 Page 129 1 2 A. Q. Well, they -- you provide the Internal Revenue Service with proof that they've been paid, do you not? 5 A. I do not know. 6 Q. Okay. 7 So you don't know whether the Department of Corrections issues a 1099 for someone that it pays -- 8 A. I don't know. 9 Q. -- $3,000 in cash? 10 MR. HANSEN: 12 MS. CARLYLE: 13 A. 14 Q. I'm sorry, what page? 2494. Are you sure? (By Ms. Carlyle) Maybe not, no. It's not 2494. It is -- 16 MR. HANSEN: 17 MS. CARLYLE: 18 me see something. 19 problem. 20 Let's go back to here. 2494. 11 15 I don't -- I don't know. 3 4 You're going back many, many years. Q. There is no 2494, right? You're right. Well, okay. Not anymore. Let I thought I fixed that (By Ms. Carlyle) Well, actually, I tell you what 21 let's do, let's look in -- we knew we had this box here 22 for a reason. 23 doing -- okay. 24 which is a disk containing numerous documents, pages 2492 25 through 2499. www.midwestlitigation.com Let's see what we've got here. Okay. Okay. What I'm I'm handing you Exhibit 2, MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 129 of 174 DAVE DORMIRE 1/15/2014 Page 130 1 MR. HANSEN: 2 MS. CARLYLE: 3 MR. HANSEN: 4 THE WITNESS: 5 MR. HANSEN: 6 THE WITNESS: 7 MR. HANSEN: I'm sorry, what did you say? 2492 through 2499. 2492 to 2499. Do you want to see those? What's that? Do you want to see those? I do want to see those because I do 8 not have copies of those. 9 they got scanned. They're at my office because But we do need to at this point, 10 Elizabeth, identify the fact that the page numbers that 11 we're referring to now are not a part of Exhibit 1. 12 13 MS. CARLYLE: of Exhibit 2. 14 15 That's why I said they were part MR. HANSEN: Oh, you did. sure that was clear in the record. 16 MS. CARLYLE: Okay. I want to make Okay. Unfortunately, what's happening 17 here is that my computer does not want to read this disk. 18 I'll give it another try here. 19 MR. HANSEN: 20 (Off the record.) 21 (Exhibit No. 2 marked for identification.) 22 23 Q. (By Ms. Carlyle) 2492, can you tell us what 2492 is? 24 25 Off the record. MS. CARLYLE: at them. I'm sorry. www.midwestlitigation.com Wait a minute, he's still looking Forgive me. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 130 of 174 DAVE DORMIRE 1/15/2014 Page 131 1 2 3 4 A. 2492 is a memo from myself to Lenny Lenger, the comptroller in the fiscal management unit. Q. (By Ms. Carlyle) And what is it asking Mr. -- I'm sorry, is it Mr. -- 5 MR. HANSEN: 6 A. 7 L-E-N-G-E-R. 8 Q. 9 A. Mister. 10 Q. Mister, okay. 11 12 Lenger. You want to spell that for -- Oh, Lenny, L-E-N-N-Y, Lenger, (By Ms. Carlyle) And is that Mr. or Miss? What are you asking Mr. Linger to do for you? A. I am requesting money for payment for execution 13 services to two contract providers and then again in the 14 second paragraph to four contract providers. 15 Q. Okay. 16 A. For varying amounts. 17 Q. Okay. And are those the four contract providers 18 we've just -- well, who are the four contract providers by 19 function? 20 A. M2, M3, M2, M3, M5 and M6. 21 Q. Okay. 22 And so that's -- that's the way you -- you asked him to give you, you know, 16, $17,000 in cash? 23 A. (Witness nodding.) 24 Q. Okay. 25 Turning to page 2494, can you tell us what that is? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 131 of 174 DAVE DORMIRE 1/15/2014 Page 132 1 2 A. This -- this would appear to be a ledger that they use. I don't -- I'm not familiar with what this is. 3 Q. Who's they? 4 A. The fiscal management unit. 5 Q. Okay. 6 A. Yeah. 7 Q. So you don't -- I mean, is there any -- who in 8 the fiscal manager -- management unit would I want to ask 9 if I wanted to know who that was? 10 A. Mr. Lenger would know what this is. 11 Q. Okay. Okay. Next page, 2095 -- 2495. 12 reflects $5,000 for medical consulting. 13 consulted there? 14 A. don't know. 16 into an account, but I don't know that. 18 Q. Who's being I'm -- I'm not up on these type of documents. 15 17 This I'm going to believe this was moving money Okay. So who -- so whose signature do we have down on the bottom there? 19 A. The signature at the bottom is Doug Nelson. 20 Q. And who is Doug Nelson? 21 A. Doug Nelson is the commissioner of Office of 22 23 24 25 I Administration. Q. Okay. And is that part of the Department of Corrections or -A. No, no. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 132 of 174 DAVE DORMIRE 1/15/2014 Page 133 1 Q. Okay. 2 A. No, he is the -- he is the director of the 3 Office of Administration. 4 5 It's part of the State of Missouri? MR. HANSEN: It's like GSA for the federal government. 6 MS. CARLYLE: 7 MR. HANSEN: 8 I'm believing that's his -- Okay. It's over -- the umbrella organization for the state agencies. 9 MS. CARLYLE: Okay. 10 THE WITNESS: It says commissioner of 11 administration signatures. 12 13 Q. (By Ms. Carlyle) So 2496 is a requisition, a Department of Corrections requisition for $5,000? 14 A. Yes. 15 Q. Which, it looks like Melissa signed. 16 A. And myself. 17 Q. And yourself. 18 A. Yes. 19 Q. And so what -- what were you doing there? 20 A. I was moving money into the fund that we use for 22 Q. The fund that we use for? 23 A. To pay for execution services. 24 Q. Okay. 21 25 Okay. this. And then 2497, is that -- which is $12,500? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 133 of 174 DAVE DORMIRE 1/15/2014 Page 134 1 2 3 A. It appears to be the same as that $5,000 document earlier. Q. Okay. So is the -- I notice that your 4 requisitions don't call it medical consulting. 5 consulting just something Mr. Nelson's office seems to 6 have decided to call it? Is medical 7 A. I do not know who fills out these forms. 8 Q. Okay. 9 Because conducting an execution is not, in fact, medical consulting, is it? 10 A. No, I wouldn't think so. 11 Q. So -- and then the -- the others I've showed you 12 are basically just other examples of the same thing, true? 13 A. Yes. 14 Q. Okay. Go back to look for 1299, I think. 15 actually, we don't need to look at 1299. 16 Actually, I've -- let's look at 2399. 17 MR. HANSEN: 18 MS. CARLYLE: 19 A. 20 Q. 21 A. Okay. 2399, yeah. Okay. (By Ms. Carlyle) Okay. Inventory -- let's see. And what is this? Eastern Reception Diagnostic Center, Chemical Control Record. 23 capital punishment transactions. 25 Q. Okay. 99? 22 24 No, It says The only drug that's reflected on here is Pentobarbital, right? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 134 of 174 DAVE DORMIRE 1/15/2014 Page 135 1 A. Yes. 2 Q. Okay. 3 And what units are those where it says four, two and two? 4 A. I -- it's labeled as 100M, slash, 50MG, slash, 6 Q. Right. 7 A. I would believe it's a volume. 8 Q. Okay. 5 9 ML. But that's a concentration, is it not? I don't -- I guess I would read that as 100M whatever they are per 50 milligram per milliliter. Okay. 10 So who -- so I guess we're not sure exactly what the units 11 are. 12 five grams were -- or five grams were destroyed after the 13 execution, correct? 14 But what we learned from another log was that A. 15 16 That's correct. MR. HANSEN: We're talking about 2399; is that correct? 17 THE WITNESS: Yes. 18 MS. CARLYLE: Yes, yes. 19 Q. 20 right there? 21 A. Joe Hofmeister and Terry Russell are the first Q. The third one looks like Johnston to me, but 22 23 24 25 (By Ms. Carlyle) Who are the witnesses on the two. maybe I'm misreading it. A. Joe Hofmeister is the first one, Terry Russell www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 135 of 174 DAVE DORMIRE 1/15/2014 Page 136 1 is the second one. 2 the third item. Becky Johnston is the first witness on 3 Q. Oh, I see. 4 A. Pardon? 5 Q. There are two sets of witnesses and I've got the 6 thing covered. Wait a minute. Okay. 7 A. And I do not know the second witness. 8 Q. You can't read that one? 9 signature than mine. Okay. That's a worse So -- but I guess the sum 10 total of this is whatever those units are, the four, the 11 two and the two, by November 21, the Department no longer 12 had any Pentobarbital? 13 A. That's correct. 14 Q. Okay. 15 1303. Okay. 16 17 I actually only have a couple of more. Tell me what this is, please. MR. HANSEN: MS. CARLYLE: 19 MS. BORESI: 20 MS. CARLYLE: 22 Let me get there. 18 21 Hang on a second. Q. Oh, sure. What was the number, please? 1303. (By Ms. Carlyle) This appears to be a handwritten document, true? 23 A. You are correct. 24 Q. Do you know whose handwriting it is? 25 A. I do. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 136 of 174 DAVE DORMIRE 1/15/2014 Page 137 1 Q. And whose is it? 2 A. It is mine, my handwriting. 3 Q. Well, then, what can you tell us about it? 4 A. This is my notes that I used to remind myself of 5 all the documents that I needed to ensure I had. 6 Q. 7 these notes? 8 A. Names and phone numbers. 9 Q. Okay. 10 A. Addresses. 11 Q. And are they redacted -- are all those Okay. So what -- what was -- what's redacted on 12 redactions of people that you contend are shielded either 13 as execution team members or state secrets or are they -- 14 A. Yes. 15 Q. Okay. 16 a check." 17 In the middle it says, "AG's want to run Do you have any idea what that referred to? MR. HANSEN: Well, I'm going to object to the 18 form, foundation of that question. 19 been -- he hasn't said what that says. 20 ask him that first. 21 22 Q. I mean, you might Does it say, "AG's want to run a check?" 23 A. 24 that -- 25 (By Ms. Carlyle) Okay. I don't think it's That was a note I made to myself indicating MR. HANSEN: www.midwestlitigation.com Just listen to the question. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 137 of 174 DAVE DORMIRE 1/15/2014 Page 138 1 Q. 2 second. 3 A. Sure. 4 Q. Does it appear to be "AG's want to run a check"? 5 (By Ms. Carlyle) Let me stop you just for a Am I reading your handwriting correctly? 6 A. Yes. 7 Q. Now, if you remember what that was about, please 8 tell us. 9 MR. HANSEN: Well, I'm going to object at this 10 point unless it relates to legal advice that we, as 11 representatives, told you, but -- can I talk to -- can we 12 talk? 13 MS. CARLYLE: 14 MR. HANSEN: 15 THE WITNESS: 16 (Off the record.) 17 MR. HANSEN: 18 Just for a moment. Sure. Back on the record. Withdraw the objection. 19 MS. CARLYLE: 20 MR. HANSEN: 21 Sure. A. Okay. You can go ahead and answer. That was a note to myself indicating that I was 22 to secure the licenses and things because my note was the 23 Attorney General's Office wanted to make sure that we run 24 checks on those individuals. 25 Q. (By Ms. Carlyle) On what individuals? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 138 of 174 DAVE DORMIRE 1/15/2014 Page 139 1 A. The individuals that I was dealing with. 2 Q. Okay. 3 And can you identify them by function? understand you're not going to give me their names, but -- 4 MR. HANSEN: Give them the pseudonyms. 5 A. 6 Q. 7 A. Yes. 8 Q. And do you know what check they ran? 9 A. I do not know what all Mr. Briesacher did. 10 Q. Mr. Briesacher, just so we're clear, is not an 11 12 The prescribing -- M5 and M6. (By Ms. Carlyle) M5 and M6. Okay. AG, is he? A. That's correct. 13 MR. SPILLANE: 14 (Off the record.) 15 Q. Off the record. (By Ms. Carlyle) Okay. To clarify, does this 16 note mean that you were being directed by the Attorney 17 Generals to run checks or that you were obtaining this 18 information because the Attorney Generals wanted to run a 19 check? 20 A. My -- I wrote that note because Mr. Briesacher 21 indicated that he wanted to run checks because he was 22 requested to do so by the Attorney General's Office. 23 I Q. Okay. Then the only thing I think -- well, I 24 won't say that, but we're coming to the end. 25 look at 1304. www.midwestlitigation.com Let's take a Can you tell me what that is? MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 139 of 174 DAVE DORMIRE 1/15/2014 Page 140 1 2 3 A. That is the names, addresses, phone numbers and fax numbers and DEA numbers for M5 and M6. Q. Okay. Under what -- are you involved in 4 determining whether prisoners who are awaiting execution 5 will be allowed to have confidential visits with their 6 attorneys or clergy or who makes that determination? 7 A. Generally the warden makes that determination. 8 Q. Okay. 9 10 Are there any written guidelines about when a confidential -- and by confidential, I mean visit with no one else in the room will be permitted? 11 A. I don't know specifically what all is written. 12 Q. Are you involved in the determination of when 13 the execution can proceed, that is when the determination 14 has been made that there's no legal reason why it can't 15 proceed? 16 A. No. 17 Q. Is that Mr. Lombardi's call? 18 A. Yes. 19 20 MS. CARLYLE: 23 24 25 I believe I'm ready to pass the witness if you want to ask him any more. 21 22 Okay. MR. HANSEN: Very briefly. EXAMINATION BY MR. HANSEN: Q. We've been here a little over five hours, I think, Mr. Dormire, so I just want to clarify -A. Sure. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 140 of 174 DAVE DORMIRE 1/15/2014 Page 141 1 Q. -- a couple of things. Back -- right after we 2 started, a little after 1:30, you were asked a question 3 about a protocol that had been considered by the 4 Department and that is in Exhibit 1 and it's pages 2246 to 5 2249. 6 Do you have that yet? And I'd ask you to look specifically at page 2248. 7 A. 2248, yes. 8 Q. Actually, that's not the right page number. 9 yeah, it is. Oh, I'm at the wrong page number in my book 10 here. 11 and you were asked a question -- I'm going to paraphrase 12 it without having the court reporter go all the way back 13 and read it, but you were asked a question about whether 14 the Department maintained Midazolam and Hydromorphone for 15 use in executions. 16 question? And I'll ask you to look down under paragraph b2A Do you remember being asked that 17 A. Yes. 18 Q. And your answer was no, do you recall that? 19 A. Yes. 20 Q. Since you gave that answer, do you have any 21 information to include to correct that answer? 22 A. Yes; yes. 23 Q. And what is that? 24 A. I was reminded that we had purchased those items 25 as a backup. www.midwestlitigation.com Yes. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 141 of 174 DAVE DORMIRE 1/15/2014 Page 142 1 Q. At the time this was -- 2 A. Being considered, yes, yes. 3 Q. All right. 4 And do you still -- do you still have those drugs in your inventory? 5 A. Yes. 6 Q. Are those drugs part of the protocol that has 7 been adopted and is currently in use? 8 A. No. 9 Q. The only other question or topic I want to ask 10 you about is back about 3:30 or so, you were asked some 11 questions relating to M6 and M6 is the pseudonym for who 12 or what? 13 14 A. It is -- on -- the contract is with the pharmacy. 15 Q. Okay. 16 A. Yes. 17 Q. And you were -- 18 A. Well -- 19 Q. -- shown a document in response to But that M6 refers to the pharmacy? 20 Miss Carlyle's -- or along with Miss Carlyle's question 21 which is found at page 12 of 60. 22 document? 23 24 25 A. And what is that That is the naming of a pseudonym for team member of M6. Q. That was the letter written to the pharmacy? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 142 of 174 DAVE DORMIRE 1/15/2014 Page 143 1 A. Yes. 2 Q. Informing them that that would be their moniker? 3 A. Yes. 4 Q. And what is the Department's position, does that 5 cover just an individual person or the pharmacy or what? 6 A. We believe that covers the entire pharmacy. 7 Q. Including its employees? 8 A. Yes. 9 MR. HANSEN: 10 11 MS. CARLYLE: MR. HANSEN: 16 17 Okay. Well, unfortunately, it's I'm just saying that's all I have. If you have more questions, ask away. 14 15 That's all I have. not going to be quite that simple. 12 13 Okay. MS. CARLYLE: Okay. EXAMINATION BY MS. CARLYLE: Q. So when was it that you purchased Midazolam and Hydromorphone for execution? 18 A. I don't know the exact date. 19 Q. Can you give me a year? 20 A. Oh, it was in 2013. 21 22 It was while this protocol was being considered. Q. So it's still available, so if you wanted to 23 change the protocol next week, you would have it available 24 for an execution; is that true? 25 A. Yes; yes. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 143 of 174 DAVE DORMIRE 1/15/2014 Page 144 1 Q. Okay. 2 A. I was told that it's enough for three 3 executions. How much Midazolam do you have on hand? I don't know how much that is. 4 Q. Okay. 5 A. Yes. 6 Q. And can you give us the expiration date of the 7 8 9 10 11 And a similar quantity of Hydromorphone? Midazolam you have on hand? A. My understanding, it's later this spring, I believe. Q. And similarly the expiration date of Hydromorphone? 12 A. I think it's about the same. 13 Q. Okay. 14 those purchases? 15 Midazolam? 16 17 18 A. And where are the documents that reflect Well, who supplied the hydro -- the Those would have been purchased by the business manager at Bonne Terre. Q. Okay. From whom? 19 MR. HANSEN: Hang on a second. 20 THE WITNESS: Yes. 21 MS. CARLYLE: There's nothing that says the 22 suppliers of Midazolam for a backup drug are members of an 23 execution team. 24 MR. HANSEN: 25 MS. CARLYLE: www.midwestlitigation.com Well, let me think about it. Okay. MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 144 of 174 DAVE DORMIRE 1/15/2014 Page 145 1 MR. HANSEN: 2 A. 3 Q. 4 Go ahead and answer. Your question again? (By Ms. Carlyle) My question is who was the supplier of the Midazolam? 5 A. Oh, I don't know. 6 Q. Okay. 7 A. The institution at Bonne Terre, the business 8 Who does? manager. 9 Q. Is that Miss Johnston? 10 A. Yes. 11 Q. Do you know who the Hydromorphone came from? 12 A. No. 13 Q. And would Miss Johnston know about that, too? 14 A. Yes. 15 Q. Okay. 16 17 No, I don't. So when you were asked about this earlier today, you simply forgot that you had them? A. I was probably informed, but it -- I didn't 18 believe at the time that we had gone ahead and purchased 19 them, but I was reminded that we had. 20 21 22 Q. So who decided that the -- that Midazolam and Hydromorphone should be purchased for executions? A. Specifically, I don't -- I don't know. I would 23 assume that it -- that the final decision was Director 24 Lombardi. 25 Q. Was that something you recommended? www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 145 of 174 DAVE DORMIRE 1/15/2014 Page 146 1 A. I don't remember recommending it, no. 2 Q. Okay. Was the decision -- well, I guess I'm 3 trying to get a little chronology here. 4 the Midazolam and Hydromorphone purchased before the 5 protocol we were talking about, 2246 through 2249, was 6 drafted? Was the -- were 7 A. I do not know for sure. 8 Q. So you don't know whether -- let me think about 9 10 this for a minute. Does the Department of Corrections plan to use Midazolam and Hydromorphone for executions? 11 A. At this point, no. 12 Q. Who knows what the exact expiration date is? 13 A. Miss Johnston. 14 Q. Do you believe that in order to use Midazolam 15 and Hydromorphone for executions, it would be necessary 16 for the DOC to release a new public protocol? 17 A. Yes. 18 Q. How soon before such an execution do you think 19 such a protocol would need to be released? 20 A. I don't know that answer. 21 Q. 24 hours? 22 A. No. 23 MR. HANSEN: 24 question, foundation. 25 A. Objection to the form of the It's been answered, but go ahead. Yeah, no, certainly not 24 hours, but I can't www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 146 of 174 DAVE DORMIRE 1/15/2014 Page 147 1 2 tell you how long. Q. (By Ms. Carlyle) Do you think -- are you -- do 3 you think it would be -- if you were to announce such a 4 protocol now, that it would be appropriate to use that 5 combination on Mr. Smulls on January 29? 6 7 A. It's awfully quick, but I don't make those final decisions. 8 Q. Is that a decision Mr. Lombardi makes? 9 A. Yes; yes. 10 Q. Okay. Let me just ask you a couple of things 11 about this -- about M6. 12 pseudonym for the pharmacy as a whole? 13 14 15 16 A. M6 you're now telling us is a We signed a -- we signed an agreement with the pharmacy that we would keep them confidential. Q. Okay. Did you sign an agreement that you would keep the individual employees confidential? 17 A. Not with each individual employee, no. 18 Q. Okay. 19 How many individual employees at the pharmacy have you dealt with? 20 A. Have I dealt with? 21 Q. Uh-huh. 22 A. Primarily one, but there is a second one that is 23 somewhat involved. 24 Q. And are you willing to reveal their names? 25 A. No. www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 147 of 174 DAVE DORMIRE 1/15/2014 Page 148 1 Q. Why not? 2 A. I believe it would violate the agreement that we 3 have signed with them. 4 MS. CARLYLE: 5 Okay. I think -- I don't think I have any further questions. 6 MR. HANSEN: 7 THE WITNESS: Thank you. 8 MS. CARLYLE: Oh, signature. 9 MR. HANSEN: 10 No questions. We'll waive presentment, like to read it and sign. 11 MS. CARLYLE: 12 MR. HANSEN: Okay. 1 through 7, I want a copy of the 13 disk to show what it is, but not the disk itself. 14 exhibits except 8 and 9, put the original with the 15 original deposition. 16 17 18 19 20 MS. CARLYLE: The I just want an electronic copy and PDF format. MR. HANSEN: I just want an e-tran that will have a copy of the exhibits. (Proceedings concluded at 7:02 P.M.) 21 22 23 24 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 148 of 174 DAVE DORMIRE 1/15/2014 Page 149 1 2 CERTIFICATE OF REPORTER I, Julie K. Kearns, Certified Court Reporter 3 (MO), Certified Shorthand Reporter (IL), Registered 4 Professional Reporter and Certified Realtime Reporter 5 within and for the State of Missouri, do hereby certify 6 that the witness whose testimony appears in the foregoing 7 deposition was duly sworn by me; the testimony of said 8 witness was taken by me to the best of my ability and 9 thereafter reduced to typewriting under my direction; that 10 I am neither counsel for, related to, nor employed by any 11 of the parties to the action in which this deposition was 12 taken, and further that I am not a relative or employee of 13 any attorney or counsel employed by the parties thereto, 14 nor financially or otherwise interested in the outcome of 15 the action. 16 17 18 ________________________________________ 19 Julie K. Kearns, CCR #993, CSR, RPR, CRR 20 21 22 23 24 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 149 of 174 DAVE DORMIRE 1/15/2014 Page 150 1 Midwest Litigation Services 2 3 January 20, 2014 4 5 David Hansen, Esq. MISSOURI ATTORNEY GENERAL'S OFFICE 6 211 West High Street Jefferson City, Missouri 65102 7 8 In Re: David Zink, et al. vs. George Lombardi, et al. 9 Dear Mr. Hansen: 10 Please find enclosed your copy of the deposition of 11 DAVE DORMIRE, taken on January 15, 2014 in the above-referenced case. Also enclosed is the original 12 signature page and errata sheets. 13 Please have the witness read your copy of the transcript, indicate any changes and/or corrections 14 desired on the errata sheets, and sign the signature page before a notary public. 15 Please return the errata sheets and notarized signature 16 page to Ms. Carlyle for filing prior to trial date. 17 Thank you for your attention to this matter. 18 Sincerely, 19 20 Julie K. Kearns 21 CC: Elizabeth Unger Carlyle, Esq. 22 23 24 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 150 of 174 DAVE DORMIRE 1/15/2014 Page 151 1 Errata Sheet 2 Witness: DAVE DORMIRE 3 In Re: 4 Upon reading the deposition and before subscribing David Zink, et al. vs. George Lombardi, et al. thereto, the deponent indicated the following changes 5 should be made: 6 Page Line Should read: Reason assigned for change : 7 Page Line Should read: 8 Reason assigned for change : 9 Page Line Should read: Reason assigned for change : 10 Page Line Should read: 11 Reason assigned for change : 12 Page Line Should read: Reason assigned for change : 13 Page Line Should read: 14 Reason assigned for change : 15 Page Line Should read: Reason assigned for change : 16 Page Line Should read: 17 Reason assigned for change : 18 Page Line Should read: Reason assigned for change : 19 Page Line Should read: 20 Reason assigned for change : 21 Page Line Should read: Reason assigned for change : 22 23 Witness Signature: 24 Reporter: Julie K. Kearns 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 151 of 174 DAVE DORMIRE 1/15/2014 Page 152 1 I, DAVE DORMIRE, do hereby certify: 2 That I have read the foregoing deposition; 3 That I have made such changes in form and/or 4 substance to the within deposition as might be necessary 5 to render the same true and correct; 6 7 That having made such changes thereon, I hereby subscribe my name to the deposition. 8 9 I declare under penalty of perjury that the foregoing is true and correct. 10 11 12 Executed the _______ day of ____________, 20___, at ________________________________________. 13 14 _____________________________________. 15 DAVE DORMIRE 16 17 My Commission Expires: _____________________________ 18 Notary Public: _____________________________ 19 JK 20 21 22 23 24 25 www.midwestlitigation.com MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 152 of 174 DAVE DORMIRE 1/15/2014 A ability 9:17 12:12 149:8 able 52:8,10 74:20 above-referenc... 150:11 Absolutely 25:19 accepted 124:15 account 13:19 132:16 accreditation 74:4 116:16,19 116:20,25 117:13,14 acknowledge 6:5 12:15 13:2 24:20 acknowledged 74:10 acknowledging 44:20 action 149:11,15 active 48:25 49:3 49:11 activity 39:14,15 actual 16:19 37:7 56:15 99:20 109:14 add 21:24 additional 11:2 12:11 92:14 109:11 112:15 address 72:18 86:2 addressed 62:5,9 73:24 addresses 137:10 140:1 adheres 47:19 administer 77:16 77:23 89:16 administered 90:8,9,12 administering 77:22 administers 90:6 administration 18:5 47:11 49:7 55:15 97:11 132:22 133:3 133:11 administrative 20:10 29:7,24 30:1 32:21 34:8 50:4,5 53:25 83:6 adopted 142:7 advance 43:6 127:14,16 advice 138:10 advises 39:12 affidavit 2:13 13:25 111:7,17 111:24 112:20 112:23,25 113:18,21 afternoon 3:12 AG 139:11 age 9:23 agencies 47:4 133:8 ago 7:22,22 9:5 AGO002250 20:13 AGO002405 2:14 26:1 AGO00247 2:14 AGO002471 26:6 AGO002587 2:15 AGO002680 2:15 AGO2250 20:16 agree 123:2 agreed 5:1 25:11 54:3,4 agreement 58:23 104:16 147:13 147:15 148:2 agreements 58:16 AG's 137:15,21 www.midwestlitigation.com 138:4 AG000639 8:17 AG002514 8:17 ahead 12:8 19:8 20:3,6 24:17 40:3 53:21 60:18 87:3 90:13 123:7 138:20 145:1 145:18 146:24 al 1:4,7 3:4,7,18 3:19 150:8,8 151:3,3 allegedly 44:8 Allen 23:15,19 27:9 39:12,16 126:19 alleviate 8:9 allow 43:22,22 60:7 61:6 112:6 115:9 allowed 25:4 43:14 140:5 allows 89:11 112:1 113:6,9 alternative 22:8 ambiguous 41:20 41:23 100:1 amended 2:11,12 65:12,19 71:14 American 116:15 116:19 amount 91:2 109:14 amounts 131:16 analyses 120:9 120:24,24 121:4 analysis 117:18 119:17,21 120:2,6,16 121:7,11,20 122:5,19 123:15,20 and/or 150:13 152:3 announce 147:3 announcement 83:25,25 answer 10:22 12:8,20,21,21 12:22 13:7,12 13:13 23:16 30:7 40:11 42:24 43:4,11 43:22,25 45:1 45:19,22 52:8 53:21,23 55:8 60:3,18 61:9 63:2,10 64:18 97:1 98:11 100:1 101:11 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asking 10:17 12:14 18:14 19:13 41:21 51:8 52:3 53:7 60:13 61:1,3 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 153 of 174 DAVE DORMIRE 1/15/2014 63:2 72:16 76:17,18,19 81:3 89:25 115:4 131:3,10 aspect 78:20,20 asserted 101:14 114:7 assessment 15:6 assigned 62:18 80:5 99:10 151:6,8,9,11,12 151:14,15,17 151:18,20,21 assignments 80:21 81:4 assistant 20:10 29:7,24 30:2 32:21 34:8 53:25 83:6 Association 116:15,19 assume 51:14 72:18 103:12 117:9 119:19 145:23 assumed 107:7 assuming 30:9 33:3 89:19 assumption 110:20 attach 16:20 attached 2:18 65:14 124:11 attaching 38:14 attempt 56:18 97:5 attempted 13:17 67:8 attempts 11:3 55:25 65:4 attend 33:12 attending 34:2 attention 19:6 23:13 39:5 72:7 150:17 attorney 4:9 9:7 138:23 139:16 139:18,22 149:13 150:5 attorneys 140:6 attorney's 25:5 authority 28:18 39:18 108:25 authorization 50:8 51:3 availability 50:20 available 7:6 22:13 44:19 46:2 54:14,21 54:22 56:4 143:22,23 awaiting 140:4 aware 12:24,24 15:10 67:8 71:9 74:18 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55:15,24 56:8 56:11,17 124:10 126:21 bids 51:4,10,14 51:15,16 101:3 big 26:4 bit 7:10 114:1 bits 107:15,17 blank 8:7 32:8,10 70:20 blanks 31:3 blocked 35:7 bolded 94:16 Bonne 110:18,22 144:17 145:7 book 141:9 Boresi 4:9 6:21 9:10 86:8 95:7 127:6,13 136:19 bottle 38:24 bottles 110:12 bottom 23:13 65:15 81:16,17 111:8 119:20 123:12,25 132:18,19 Boulevard 4:14 box 110:10 129:21 brand 39:1 break 17:12,14 40:10 51:19,23 51:25 52:6 108:3 brief 66:5 94:22 briefing 94:12,22 briefly 65:24 140:21 Briesacher 15:11 16:7 20:10 22:4 42:1 46:13,16 47:8 48:3 49:14 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 49:16 54:1 61:14,17 73:25 74:18 83:13 100:13,25 101:5 104:14 107:2 113:20 117:11 124:9 139:9,10,20 bring 16:16 building 17:6 97:11 bunch 102:24 business 64:6,8 64:11 74:1 114:1 115:12 115:15 116:15 144:16 145:7 businesses 114:2 buying 41:3 b2A 141:10 C C 4:1 call 27:17 36:10 36:10,11 39:4 68:2 80:15 88:12 99:17 134:4,6 140:17 called 36:9 55:14 91:2 125:15 calling 60:3 calls 12:19 50:25 67:7 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118:24 119:1,3 CRR 149:19 CSR 149:19 Cummins 98:24 99:1 current 18:11 19:4 69:9,11 currently 15:12 18:14,19 22:9 142:7 custody 109:19 cut 94:9,10 D DAI 94:12 date 20:7 22:1 57:14,20 64:24 65:21 66:16,18 66:20,22,23 67:22 69:5,18 72:22 73:2,3,3 73:4,5,6 75:20 81:24 101:19 102:8 103:1 106:23 107:6,9 108:14 116:8 119:11,11 121:21,21,25 143:18 144:6 144:10 146:12 150:16 dated 57:14 58:7 58:7,8,21 81:20 dates 13:5,6 58:6 66:7 67:9 74:18 76:21 81:7 119:18 Dave 1:10 2:13 3:10 9:22 27:11 38:23 111:7 150:11 151:2 152:1,15 David 1:4 3:4,18 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 156 of 174 DAVE DORMIRE 1/15/2014 4:8 33:7 150:5 150:8 151:3 day 3:11,13 13:13 31:12 46:16 74:16 98:4 107:22 152:11 days 7:22,22 9:5 81:8 106:17,24 107:9,14 DEA 58:10,12 140:2 dealing 139:1 deals 19:17 dealt 147:19,20 Dear 150:9 death 87:16 103:16 Debbie 32:21 debriefing 94:19 94:21 December 6:21 6:21,23 7:12 8:12 9:20 44:8 65:20 66:19 67:11 69:17 71:15 111:8 decided 16:8 21:24 35:21 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150:14 destroy 7:14,15 destroyed 7:12 9:2,4,7,8 91:6 105:22 135:12 detail 14:2 107:15,16 details 27:18 determination 16:6 140:6,7,12 140:13 determinations 16:5 determine 25:10 46:8 54:10,14 85:5 87:7 100:12 112:7 112:10 116:18 determined 8:4 16:1 determines 19:10 determining 140:4 developing 14:3 15:13 development 15:7 Diagnostic 28:14 28:16 134:22 difference 48:4,6 92:12 differences 57:9 57:18 different 8:5,8 24:10 51:5 57:20,22 58:16 58:16,16,21,21 58:22,23,24 59:7 68:16 80:3 80:16,21,21,22 80:25 81:3,4,4 81:5,6,7 95:25 114:1 direct 11:1 42:22 42:23 45:22 53:23 102:2,3,5 directed 7:13 103:21 106:12 139:16 directing 45:18 direction 112:19 149:9 directions 33:11 directly 10:8 46:3 49:17 director 16:9 19:10 22:5 29:6 29:10 32:20,24 36:10 39:11,19 49:17 88:18 94:12 108:25 133:2 145:23 director's 33:24 89:13 directs 89:10 disbursed 125:24 discard 106:22 107:6 discarded 78:1,8 87:21 91:2 disclose 42:20,20 disclosing 43:18 disclosure 44:7,8 discovery 2:9,10 5:13 6:20,22 9:1,3 25:5 49:23 61:20 67:5 69:18,19 101:24,25 120:15 discretion 104:22 discuss 115:5 discussion 113:19 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 disk 5:22,25 6:1 6:2,10,17,19,22 6:24 7:2,5,5,6 7:20 8:20,22,22 9:16 16:25 49:23 52:25 61:20 129:24 130:17 148:13 148:13 disposal 87:17 dispute 6:1 distributor 21:4 DISTRICT 1:1,1 3:1,1 division 1:2 3:2 35:19 37:11,12 DOC 117:23 118:5 123:23 146:16 doctor 67:22 89:11,13,13 100:14 document 16:20 18:2,7,10 19:7 20:5,18,25 32:17 53:3,14 57:7 58:19 65:1 65:1,22 67:3 71:10,13 73:1 116:7 117:5,8 119:10,16,20 121:10 122:25 124:18 128:22 134:2 136:22 142:19,22 documents 6:17 6:22 7:4,10,17 7:20 8:6,10,18 8:19 9:19 17:16 20:12 23:17,21 23:24 25:3 27:23,25,25 28:4,25 40:5 52:1,8,24,24,25 55:6 57:15,24 63:21 66:12 67:15 68:5 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 157 of 174 DAVE DORMIRE 1/15/2014 69:14 72:9 79:2 84:18,19 85:1 91:21 92:13 125:15 127:8 127:10 129:24 132:14 137:5 144:13 doing 22:17 44:21 57:10 78:22 83:10 85:9 115:14 120:9 129:23 133:19 domain 55:7 Dormire 1:10 2:13 3:10 5:11 9:22 10:2 17:16 17:19 22:21 23:8 25:16 52:1 52:7 71:13 111:7 140:24 150:11 151:2 152:1,15 Dormire's 14:8 44:11 DORS 37:7,8 double-sided 26:1,2,3,4,6,18 Doug 132:19,20 132:21 downstairs 126:3 draft 10:10,12,13 10:13,14,16,19 drafted 10:18 146:6 drafting 10:17 draw 19:6 23:12 72:7 Drive 3:14 drug 24:10 40:17 47:11,14 49:7 134:24 144:22 drugs 41:9,12 42:14 44:23 45:20 60:1,7,16 60:22 61:6 77:17,22 115:1 ends 24:25 34:9 engage 42:12 ensure 7:17 27:19 54:11 137:5 ensuring 107:18 entire 6:1 143:6 entirely 121:2 E entities 15:6 E 4:1,1 21:22 58:17 earlier 8:2 27:14 115:15 101:11 134:2 entitled 67:4 145:15 114:25 121:20 easier 16:24 entity 16:5 62:4 93:15 127:16 entry 39:6 83:20 Eastern 28:13,14 equipment 30:11 134:21 ERDCC 28:12 easy 120:17 126:2 ECF 111:7 errata 150:12,14 educational 150:15 151:1 68:23 escorted 39:13 effect 18:15,19 Esq 4:4,8,8,9 21:20 75:15 150:5,21 effort 49:10 essentially 120:1 eight 65:19 established 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39:22 40:3 53:21 60:18 83:15 85:5 87:3 94:1 95:5 108:4 111:14 114:11 115:24 123:7 124:22 129:9 134:14 138:20 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 159 of 174 DAVE DORMIRE 1/15/2014 141:12 145:1 146:24 going 5:19 8:5,22 11:12 12:18 14:15,25 15:1 17:2,3,3,8 20:23 22:21 25:11 30:5 37:24 39:22 41:19,22 42:17 43:2,8 44:10,14 44:25 45:7,22 51:21 57:1 60:2 63:2 64:15 65:23,25 66:3,4 66:6 68:25 70:7 80:23 84:7 87:25 88:2,5 93:23 96:10 100:6 101:9,21 101:25 102:5 106:8,11 107:25 112:3 114:3,14 118:4 118:21 120:10 127:6,10 129:1 132:15 137:17 138:9 139:3 141:11 143:11 good 18:17 38:25 39:3 47:19 51:23 83:23 106:24 107:25 goodness 6:18 goose 59:11 government 68:23 69:3 133:5 governmental 47:4 grab 88:9 grams 16:2 90:18 90:19 104:4,5 104:12,13 105:12 109:10 109:16 135:12 135:12 granted 39:18 Hansen 2:3 4:8 great 25:22 5:16,19,24 6:4 107:15,16 6:9,15 7:8,9,16 group 95:25 9:6,11,16 11:12 GSA 133:4 11:19,21,24 guess 8:24 12:25 12:6,18 14:5,10 17:5 18:2,16 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52:8 location 87:7 113:23 127:7 locations 112:11 locked 108:13,16 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 110:10 log 30:18 38:15 38:17 78:25 79:11,13 80:8 80:14,19,19 82:1,19 87:20 88:11 109:18 135:11 logistical 16:14 logs 79:15,18 80:16,16 82:17 Lombardi 1:7 3:7,19 15:11 16:11 22:5 29:10 32:24 49:17 88:18 145:24 147:8 150:8 151:3 Lombardi's 29:7 32:20 140:17 long 36:19 147:1 longer 63:3 136:11 look 5:21 15:4 16:14 17:3,3,4 23:22 25:4 27:3 34:17,18 35:6 39:7 46:15 53:1 54:16 56:25 57:16 59:11 61:19 63:19 67:14,18 68:5 69:13 70:1 71:19 73:15 74:8 75:3,3 78:24 83:15,16 85:8 87:22 88:5 91:9 92:9 93:4 96:22 98:20 102:25 103:6 109:17 116:5 117:4 123:14 124:4 125:7 126:13 127:3 129:21 134:14 134:15,16 139:25 141:5 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 162 of 174 DAVE DORMIRE 1/15/2014 manner 41:21 manufacture 121:21 manufactured 48:5,14 manufacturer 21:4 72:1,4 manufacturing 47:20 119:11 mark 5:12 8:15 8:22 16:20 24:17 65:6 70:24 111:1 marked 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missing 7:24 8:10 94:16 Missouri 1:1 3:1 3:13,14,16,18 4:5,9,10,14 15:8 18:4 48:2 52:14,15 55:14 59:25 60:1,6,7 60:13,15,16,21 60:22 61:4,6,6 101:8 111:9 133:1 149:5 150:5,6 mistake 13:18 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 Mister 131:9,10 Misters 41:10 misunderstand... 23:20 misused 63:11 mixed 27:12 mixing 48:11 ML 135:5 MO 149:3 moment 76:23 105:11 115:5 138:14 money 125:7 131:12 132:15 133:20 moniker 143:2 monitor 103:8,9 monitors 87:11 87:12 month 75:20,21 morning 8:2,14 23:16,22,25 24:5 move 63:16 moved 108:18 moving 94:25 98:8,9 132:15 133:20 multi-page 79:2 M2 76:11 78:15 78:17 87:5,6,10 87:15,15,16,18 87:19 88:13,15 90:7 126:5,6,7 128:4 131:20 131:20 M2's 87:9 M3 15:22,23 76:9 78:15,17 87:5,6 87:10,15,15,16 87:18,19 88:13 88:15 90:7 100:15,17,21 110:1,6,6,7,22 126:5,11,12 127:6 128:4 131:20,20 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 163 of 174 DAVE DORMIRE 1/15/2014 M3's 113:22 M4 76:16,20 M5 87:4 128:11 128:12 131:20 139:5,6 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89:22 76:3 77:7 85:6 89:24 91:1 111:10,20 notations 31:15 127:11 130:9 33:25,25 34:1,3 134:15 146:19 82:6 111:8 www.midwestlitigation.com note 45:25 137:23 138:21 138:22 139:16 139:20 notes 31:22 69:17 93:25 137:4,7 notice 119:10 134:3 notify 96:18 notifying 29:8 November 58:7,7 58:8 72:23 73:3 81:7,8,20,24 109:22 110:4 111:9 127:20 136:11 number 8:5,8 10:21 11:5,5,6 11:7,14,22,25 12:5 25:17,21 25:25 26:25 27:6,7 29:2 31:23 32:11,12 35:8 40:12 42:2 45:13 49:22 52:18 57:10 58:10,12,13 81:13,14 82:22 82:24 99:17 116:9,9 118:17 119:1,7,8 123:9 136:19 141:8,9 numbered 9:13 numbers 7:3 11:8,10 53:9,11 53:12 54:24 72:19 83:1,7,8 83:16 84:9,10 84:11,12,23,24 85:7,13,16 92:20,23,24 130:10 137:8 140:1,2,2 numerous 120:16 129:24 nurse 36:11 37:6 O OAK 4:5 object 12:18 41:19,22 44:25 45:7 53:19 60:2 60:23 61:7 64:15 68:25 80:23 101:10 101:21 102:1 104:24 114:3 120:10 122:21 123:4 137:17 138:9 objected 43:14 objecting 62:19 62:23 101:15 objection 12:6 20:6 40:18 47:21 48:19 50:24 62:12 63:14,15 64:23 67:6 84:17 99:25 100:6 102:16 113:12 114:15 115:7 122:18 138:18 146:23 objections 63:7 obligation 12:16 obtain 11:1 56:14 100:5 obtained 56:17 125:23 obtaining 51:4 139:17 obviously 5:19 6:11 22:4 23:19 occur 30:23 31:11,12 74:12 77:5 105:21 occurred 74:12 75:14 96:14 occurs 108:24 October 13:25 odd 116:24 offender 35:11 38:15 81:21 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 82:6,13,15 86:3 89:17,19 90:2,3 92:16 104:21 offer 89:10 offered 46:1,1 90:14 office 4:4,9 7:13 9:7,8 28:25 31:14 32:18 33:5,16,24 35:12,13 36:2 36:20,22 37:1,4 40:9 55:14 108:14,16,18 126:2,3 128:17 130:8 132:21 133:3 134:5 138:23 139:22 150:5 officer 33:2,6,7 79:19 82:2,10 82:12 officers 79:18 80:4,21,25 81:3 81:4 official 19:1,2 oh 17:10 19:13 21:10 30:9 35:23 57:13 58:25 66:23 81:18 87:13 103:10 110:13 127:22 130:14 131:6 136:3,18 141:8 143:20 145:5 148:8 Ohio's 16:2 okay 5:10,16,18 6:3,20 9:15 10:2,16,21 11:11,20,23 12:3,10,13 13:16,23 14:10 14:22 16:13,22 17:4,13,15,23 17:24 18:21 19:6,15,16,23 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 164 of 174 DAVE DORMIRE 1/15/2014 20:11,20 21:11 22:3,6,15,24 23:12 24:11,23 25:23,24,25 26:7,14,19,20 26:23 27:8,21 27:25 28:10,24 29:9 30:8,8,19 31:7,14,20,20 31:25 32:4,5,14 32:15 33:8,14 33:19 34:5,6 35:3,3,20,24 36:6,15,23 37:16 38:4,6,8 38:8,11,21,21 39:4,9,10,21 40:11 41:7 42:4 42:8,11,14 43:20 44:1,22 45:18,24 46:5 46:15 48:16 49:20 50:8,15 51:18 52:4,5,16 52:20,23 53:2,3 53:14,24 54:9 55:2,9,24 56:17 56:23 57:5,9,13 57:17,23 58:3,5 58:5,14,20 59:13,16,21,24 61:10,16,19,24 62:3,22,25 63:8 63:18,20,24 64:5,13,19 65:3 65:11 66:2,9,15 66:20,24 67:10 67:18,21 68:9 69:4,8,15 70:6 70:14,23,23 71:9 72:15,20 72:22 73:22 74:6,8,9,20,25 75:17 76:5,22 76:22,23 77:14 77:16,17,21 78:12,15 79:13 79:21 80:6,12 80:17 81:22,25 82:5,7,16,20,23 83:9,11,15 84:5 85:3,24 86:1,20 87:2,11,14,22 88:9,12,15,19 88:24 90:6,8,11 90:17 91:1,7,9 91:11,15,17,20 92:3,11,18 93:1 93:5,8,11,23,25 94:18,18,24 95:8,10,16,19 95:25 96:9,16 96:22 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150:14,16 151:6,7,9,10,12 151:13,15,16 151:18,19,21 pages 2:14,15 7:24,24 8:5,7,7 8:8,16,16 9:19 17:9,19 29:4 32:17,19 52:19 52:21 56:25 129:24 141:4 paid 127:25 128:23 129:4 paper 16:15 17:5 52:25 papers 17:12 paperwork 54:7 paragraph 104:19 111:24 112:10 131:14 141:10 paraphrase 141:11 Pardon 15:18 49:2 64:7 70:3 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 165 of 174 DAVE DORMIRE 1/15/2014 78:16 99:21 100:16 112:22 113:7 136:4 part 20:14 37:13 87:9 89:5 112:20,23 118:1,3 122:23 130:11,12 132:23 133:1 142:6 participate 69:20 participated 28:4 particular 62:4 118:9,13 parties 24:13 54:21,21 55:7 149:11,13 partly 51:24,25 51:25 parts 28:24 78:19 78:20 party 58:9 pass 140:19 patient 104:1 pay 125:17 128:24 133:23 payment 125:12 125:21 126:18 128:6,7,19 131:12 payments 116:4 128:7 pays 129:7 PDF 148:17 peaked 60:13 penalty 152:8 pending 3:17 39:15 pentobarbital 16:2 19:18 22:8 22:13 39:24 48:1,5,5,13,14 48:18 49:1,4 50:22 52:10 56:3,8 59:2,17 61:13 68:20 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59:17 pharmacist 59:21 62:15 63:17 67:9 107:8 117:25 118:23 pharmacists 48:16 68:16,17 pharmacy 21:5 41:8,9,12,17,18 42:3,9,12,15,21 43:3,10 44:4,15 44:23 45:9,19 46:2,4,9,10,18 46:21,24 47:10 47:18,18,20 48:1,17 52:13 52:14 53:15 56:19 58:23 59:24,25,25 60:4,6,6,8,15 60:15,21,21 61:4,5,13 62:1 64:2,13,17,21 65:5 67:22 68:17 72:18 73:8,11,11 90:25 93:10 100:8,8 101:25 105:24 107:4 108:10 109:15 114:2,5,6 115:3 115:13,14 117:24 118:2 118:23 122:12 122:15,17,20 122:22 123:1,2 123:3 126:20 127:1,19,25 142:14,15,25 143:5,6 147:12 147:14,19 pharmacy's 47:3 126:21 phone 42:2 52:18 53:11,12 71:7 72:19 82:22,23 83:1,7,8,16 84:9,10,11,12 84:23,24 85:7 85:12,16 99:17 137:8 140:1 photograph 93:5 93:6,7 physically 78:5 99:7 physician 21:17 112:4 113:17 pick 73:8,10 picked 73:6 107:22 pieces 66:24 107:15,17 pile 20:12 piles 49:19 place 39:14 placed 17:16 MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 placement 112:7 Plaintiff 3:19 5:2 plaintiffs 1:5,10 3:5 4:3 5:13 6:11 7:13 8:2 8:10,14 9:24 23:15 plaintiff's 11:18 22:23 plan 22:13,14,15 22:19 146:10 plans 47:13 Plaza 3:14 please 20:1 25:16 30:4 38:22 53:1 59:12 61:25 63:19 65:7 67:18 70:1,25 71:3 73:23 75:9 81:14 86:19 92:9 111:2 116:5 136:15 136:19 138:7 150:10,13,15 point 11:13 22:11 24:20 39:22 46:2 51:19 53:21 76:8 130:9 138:10 146:11 pointed 59:7 85:16 pointless 43:3 policy 18:8,12 84:9 portion 19:7 24:21,24 44:20 portions 25:2 position 11:17 25:2,9 36:3 67:2 99:8 115:1 143:4 possible 6:12 51:14 post 80:5 81:20 81:23 potential 56:12 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 166 of 174 DAVE DORMIRE 1/15/2014 potentially 12:25 42:18 45:8 practice 18:11 76:1 77:9,18,21 77:24 practices 47:20 preceptor 67:24 67:25 preparation 18:5 22:2 30:11 prepare 87:6 prepared 19:21 20:5,8,9,21 28:1,8,19 33:24 33:24 80:20 107:21 113:18 121:14 prepares 77:8 preparing 28:4 28:11 30:21 prescribe 87:4 prescribed 102:10,11 prescriber 58:25 101:23 103:13 103:20,21 104:17,22 122:13 128:14 128:15 prescriber's 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3:10 7:19 8:8,12,13 8:18 9:14,19,23 84:19 product 50:19 production 7:10 9:13 professional 61:12 149:4 progress 39:14 promise 127:4 promoted 47:20 pronunciation 125:25 proof 129:4 Propofol 16:4 proposed 18:23 18:23 protect 54:24 83:3 protected 25:4,9 85:17,17 protecting 44:16 84:18 125:18 protocol 13:25 14:2,3,12 15:4 15:7,16,17,20 15:24 18:14,18 19:1,3 21:20 22:2,7,8 23:14 24:3,9 27:22 30:23 34:9 75:15 78:22 89:6,10,22 111:23 112:9 112:21,24 113:6,11,15 141:3 142:6 143:20,23 146:5,16,19 147:4 protocols 15:13 23:18 25:3 27:15 provide 12:2 50:12 59:8 67:5 74:20 85:14 104:20 105:3 129:3 provided 2:9,10 5:13 6:17 8:20 12:17 45:19 50:10,11 51:3 67:11 71:10 74:14,19 provider 58:24 providers 131:13 131:14,17,18 provides 22:7 56:6 providing 39:24 59:1 85:13 provisions 47:16 pseudonym 62:2 62:6 142:11,23 147:12 pseudonyms 76:2 139:4 public 33:2,5,6,7 55:6 64:20 146:16 150:14 152:18 publicly 54:20 67:3 pull 17:19 23:7 49:18 52:23 56:23 pulling 49:22 punishment MIDWEST LITIGATION SERVICES Phone: 1.800.280.3376 134:23 purchase 56:11 purchased 141:24 143:16 144:16 145:18 145:21 146:4 purchases 144:14 purported 101:24 purpose 54:9,16 54:23 63:5,15 89:8 111:16 115:7 purposes 19:24 push 78:6 put 14:20 19:14 75:2 103:20,21 106:9 120:14 124:25 148:14 putting 35:14,14 P.M 5:8 109:23 125:1 148:20 Q qualified 12:20 47:15 quality 46:10 116:20 quantities 87:20 87:21 quantity 19:11 40:20,23 144:4 question 5:11 8:25 10:12 12:6 12:19 13:16,23 14:4,5,25 15:2 15:3 18:3,16,17 23:1,3,14 24:7 32:17 35:21 36:12 40:11,18 41:20 42:23 43:25 44:10 45:1,8,19,23 47:21 48:19 50:24 52:9 53:20 55:8 60:3 Fax: 314.644.1334 Case 2:12-cv-04209-BP Document 293 Filed 01/24/14 Page 167 of 174 DAVE DORMIRE 1/15/2014 60:5,11,24 61:1 61:8,9 62:12,20 62:20,24 63:1,3 64:16,18 66:5 67:7 69:1 70:18 75:8 79:14 80:24 91:12 96:20 98:11 99:25 100:7 101:10,11,15 101:22 102:5,6 102:17 104:15 104:25 113:12 113:16 114:6 114:12,13,14 115:11 117:12 120:4,11,17 122:21 123:5 124:17 128:25 137:18,25 141:2,11,13,16 142:9,20 145:2 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