25 Soc - Sec.rep - Ser. 56, Unempl - Ins.rep. CCH 14556a John R. Wallace v. Otis R. Bowen, Secretary of Health and Human Services. Appeal of John R. Wallace, 869 F.2d 187, 3rd Cir. (1989)
Rosemarie T. Schwilm, Administratrix of The Estate of Carrol A. Schwilm, Deceased v. Thomas J. Holbrook, M.D. and Cabell Huntington Hospital, 661 F.2d 12, 3rd Cir. (1981)
22 Soc - Sec.rep - Ser. 673, Unempl - Ins.rep. CCH 14121a John R. Wallace v. Otis R. Bowen, Secretary of Health and Human Services. Appeal of John R. Wallace, 855 F.2d 101, 3rd Cir. (1988)
Carolyn Hurley, Individually, and As Parent and Guardian of James T. McNey v. United States of America Clinical Data, Inc., A Delaware Corporation, 923 F.2d 1091, 4th Cir. (1991)
FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION
RUSSELL BUCKLEW ) Plaintiff, ) ) v. ) No. 14-CV-8000-BP ) GEORGE LOMBARDI, et al., ) THIS IS A CAPITAL CASE Defendants. ) EXECUTION SCHEDULED FOR ) MAY 21, 2014
REPLY TO DEFENDANTS SUGGESTIONS IN OPPOSITION TO MR. BUCKLEWS MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION, AND MR. BUCKLEWS MOTION TO STAY EXECUTION
Defendants response is devoid of any medical facts or expert opinions that challenge the opinion of Plaintiffs expert, Dr. Joel Zivot. Mr. Bucklews evidence of the grave risks posed to him by lethal injection is entirely uncontroverted. Instead of candidly acknowledging that, Defendants make disingenuous, scattershot arguments in an effort to distract the court from the real and serious issues presented. After years of failing to provide adequate medical care and obtain up-to-date imaging, and after repeatedly opposing the efforts of Mr. Bucklews counsel to obtain funding for a qualified physician to examine Mr. Bucklew, Defendants now attempt remarkably to blame Mr. Bucklews counsel for what they themselves should have done. Until Mr. Bucklew is executed, assuming that happens, the State of Missouri has a constitutional obligation, rooted in the Eighth Amendment, to provide adequate medical care. Mr. Bucklews head, neck and throat are filled with unstable vascular tumors that have continued to grow throughout his life. They have continued to encroach on his airway and now obstruct much of his airway. Given Mr. Bucklews status as a death row prisoner and the likelihood that he would be executed, the State Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 1 of 21 2
had a constitutional obligation to monitor these vascular growths and to obtain appropriate imaging studies both to provide immediate care and to prepare for the eventuality of execution. Rather than meeting that obligation, the State has turned a blind eye to its responsibilities and has proceeded in haste and ignorance in an effort to execute Mr. Bucklew. As recently as two weeks ago, the assistant Attorney General assigned to this case thought that merely obtaining venous studies of Mr. Bucklews arms would be sufficient even though Mr. Bucklews vascular tumors are in his head. Then, counsel in the Attorney Generals office belatedly indicated he was amenable to an MRI of Mr. Bucklews head, but thought it could be done instantly, with no treating or referring physician to request the test or work with specialists. Significantly, Mr. Bucklews airway is so obstructed that medical tests would not likely be performed without first obtaining an assessment of Mr. Bucklews airway. Instead of Defendants counsel fulfilling the States constitutional obligations, it was Mr. Bucklews counsel who contacted neuroradiologists at the Washington University School of Medicine and Barnes Jewish Hospital and attempted to get an MRI arranged. In response to counsels request, Dr. Franz Wippold wrote a letter to this Court explaining the process for obtaining the necessary imaging. (See Exhibit 1). Significantly, the letter mentions obtaining, prior to any imaging, a consultation in order to assess the need for airway management during those procedures. Id. The State has done nothing to move forward on Dr. Wippolds recommendations, instead preferring to rush ahead with the execution and make hasty, last-minute changes to the protocol in a failed effort to resolve some of the problems. In contrast to the State with its constitutional obligation and unquestioned ability to pay for medical testing Mr. Bucklews counsel lack the resources for such medical consultation. The reality is that Mr. Bucklews counsel have no funding either for themselves or for medical Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 2 of 21 3
experts. Counsel are representing Mr. Bucklew under their CJA appointments but with no CJA funds. Undersigned counsel, Cheryl Pilate, was paid a total of $12,300 in 2012 for approximately 5 years work by her and her firm. Her co-counsel received a larger amount, but has also been denied any further funding. Since 2012, counsel have represented Mr. Bucklew for no remuneration whatsoever. Indeed, counsel are presently working around the clock and are paying all expenses out of their own pockets, including travel costs for themselves and Dr. Zivot as well as the costs of obtaining medical records. Since 2008, Mr. Bucklews counsel have requested funding for a medical expert no fewer than eight times and were repeatedly denied by both state and federal courts. When they litigated their request in Missouri state courts (as discussed further below), the State actively opposed their request. Now that Defendants have utterly failed in their obligation to provide appropriate medical care, including diagnostic care, they are claiming disingenuously that it is Mr. Bucklews counsel who should have obtained these facts and raised these issues. At nearly the final hour, Defendants now belatedly acknowledge that Russell Bucklew appears to have serious medical issues. (Doc. 8 at 1). Defendants tardy admission comes after Mr. Bucklew has repeatedly asserted these issues but has been hobbled by inadequate or no funding. The imminence of an execution date finally allowed counsel through a referral to locate Dr. Zivot, who thus far has not been paid a penny. He agreed to work on this case in the hope of ultimately obtaining court funding. Should Mr. Bucklews counsel fail in a final effort to obtain funds, members of Mr. Bucklews family may be able to pay a small amount toward Dr. Zivots fee. Aside from that, there is no funding, and Defendants counsel continue to advocate and litigate without adequate resources against an Attorney Generals office that has Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 3 of 21 4
the ability to assign four attorneys to this case and to obtain whatever medical consultation it needs. Defendants response to Mr. Bucklews motions is lacking in substance and devoid of meaningful arguments or relevant authority. Instead, Defendants appear to be trying to sway the Court with references to Mr. Bucklews offense even though the offense itself is irrelevant to the issues in this case and even though neuropsychological testing (presented at trial and in post- conviction proceedings) revealed serious deficits in Mr. Bucklews brain functioning. Defendants filed suggestions in opposition to Mr. Bucklews motion for temporary restraining order and preliminary injunction (Docs. 2, 3) and Mr. Bucklews motion for stay of execution (Doc. 6) in one cursory response, devoid of genuine discussion and authority supporting Defendants position. (Doc. 8). Russell Bucklew appears to have serious medical issues, Defendants reluctantly and belatedly acknowledge, but still Defendants offer no reasonable plan to execute Mr. Bucklew within the confines of the United States Constitution. (Doc. 8, at 1). They instead prefer to fly blind, with no recent imaging studies, no physical examination of Mr. Bucklews airway, and haphazard changes to the protocol removing methylene blue because of the blood pressure risk, then replacing it with a dye that is even more dangerous, then saying they are not going to use either. This leaves the execution team members including the non-medical personnel who actually inject the lethal drugs carrying out a protocol they have not trained in. Defendants arguments are erroneous and misleading for numerous reasons, and they are merely an attempt to distract and shift attention away from their own failure to provide a constitutionally acceptable level of medical care. Further, in light of their persistent attempts to keep Mr. Bucklew from obtaining funding during state court mandamus actions (see infra), they Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 4 of 21 5
should be estopped from even making the argument. Defendants have had total access to Mr. Bucklews records throughout his incarceration and were well aware of the vascular tumors, described repeatedly with terms like very massive, and with the obstruction of his airway, repeatedly described as severe. I. Defendants Have Repeatedly Changed Their Protocol Having changed their litigation position and their protocol several times, on September 24, 2013, Defendants represented to the media, without supplementing their discovery responses to the plaintiffs (including Mr. Bucklew) in Zink v. Lombardi, 2:12-CV-04209, that they intended to use pentobarbital from a compounding pharmacy. Again without supplementing their discovery, Defendants continued to make changes in their protocol with no notice to Mr. Bucklew, and which Mr. Bucklew only discovered from Defendants responses to Missouri Sunshine Law requests by collateral sources. Among these changes was the introduction of a medical doctor or osteopath to write a prescription for the lethal drug(s). Another requirement was that the prior compounding pharmacy have its drug tested by a laboratory. On November 20, 2013, Defendants again changed their execution procedure, without updating their protocol. On Friday, November 15, 2013, Defendants filed a pleading wherein they changed the protocol again. Defendant Dave Dormire, a nonphysician and Director of Adult Institutions, represented that whether the DOC would use central line access would depend on unidentified persons opinions about the plaintiffs medical condition. Zink v. Lombardi et al., 2:12-CV-04209, Doc. 157, Ex. 10. Mr. Bucklew is a plaintiff in the Zink case, so for Defendants to suggest Mr. Bucklew has not challenged the states constant change in procedure and protocol is disingenuous. Mr. Bucklew was also a plaintiff in other prior lethal injection litigation, Ringo v. Lombardi, Case No. 09-4095, and was a plaintiff-intervenor in Clemons v .Crawford, Case No. Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 5 of 21 6
07-4129. Mr. Bucklews challenges to Missouris protocol date back to 2008, which was also when he began requesting court-authorized funds to obtain a medical expert to examine his records and provide an opinion on the risks of lethal injection to him. Defendants are well aware of Mr. Bucklews efforts to obtain court funding, and they opposed it repeatedly when Mr. Bucklew sought those funds in Missouri courts. (See discussion infra). Moreover, Defendants protocol is the proverbial moving target they have changed their executions procedures twice in forty-eight hours. On Tuesday, May 13, 2014, Defendants informed Mr. Bucklews counsel that they would not use methylene blue in Mr. Bucklews execution because of the blood pressure risks Dr. Zivot identified and that they would instead use the substance indigo carmine with the saline solution in the IV line instead. Counsel immediately contacted expert Dr. Larry Sasich, who informed counsel that indigo carmine was not a safe substitute for methylene blue because it also causes spikes in blood pressure and has an added risk of causing IV lines to block. Counsel immediately informed Defendants of the problems with their hastily chosen substitute indigo carmine. (Ex. 2, email from counsel to Defendants on May 13, 2014, following consultation with Plaintiffs expert). On May 16, 2014 just five days before the scheduled execution Defendants revealed in their Response another hastily made change indicating that they will not use indigo carmine because of the risks posed to Mr. Bucklew, stating: The Department of Corrections will not use methylene blue in Bucklews execution and will not use indigo carmine, a dye which also may raise blood pressure, or any other dye. (Doc. 8, p. 7). Defendants constant shifts in protocol reveal recklessness and careless disregard for the safety of Mr. Bucklew. Why was it Mr. Bucklews expert, rather than the States execution doctor, who warned the DOC of the well- documented risks of methylene blue and then indigo carmine? Why doesnt the States allegedly Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 6 of 21 7
board-certified anesthesiologist know of these risks? Defendants are changing their protocol on the fly, which is further evidence of the DOCs recklessness and deliberate indifference to the serious medical needs of Mr. Bucklew. What will Defendants now use to flush the IV line and ensure the line is moving the lethal chemical properly? Nothing? A secret, undisclosed substance? This change in protocol was not noticed, Mr. Bucklew has no knowledge whatsoever about the substance Defendants may have chosen to replace methylene blue and as a result has no opportunity to investigate whether the chosen alternative poses even greater risks to Mr. Bucklew. These abrupt, last-minute changes are further evidence that DOC officials do not know what they are doing and are wholly unprepared to execute someone with serious medical problems like Mr. Bucklew. The switch to indigo carmine and then the abrupt dropping of it was particularly troubling, as it indicated the DOC did nothing to investigate this substance before informing Mr. Bucklews counsel that it would be used in place of methylene blue. Now, the DOC states it is using no dye. This, too, is troubling, and requires the execution team whose members include non-medical personnel to carry out a protocol that they are not trained in. The DOC protocol included methylene blue for an important reason; otherwise the DOC would not have included it. Now, the DOC proposes nothing, or a totally unknown substance, in its place. This raises a critical question how will the execution team, remotely stationed in the execution support room confirm that the IV line is flowing properly or continuing to flow when the dye is no longer used? We can have no confidence in the DOCs assertion that all is well as it applies to Mr. Bucklew, who suffers from a serious, documented medical condition that partially obstructs his airway and fills his head, neck and throat with weak, distended vessels. Defendants have offered Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 7 of 21 8
no evidence to controvert Plaintiffs medical evidence. Surely, Defendants have had ongoing and unfettered access to Plaintiffs medical records and have the resources to obtain expert opinions. Yet, they offer no evidence to dispute Mr. Bucklews assertions, and no evidence in support of their assertion that their protocol will work as intended with Mr. Bucklew. In contrast, Mr. Bucklew has squarely met his burden and has shown a substantial risk of severe harm and excruciating pain. See Baze v. Rees, 550 U.S. 35, 50 (2008); Brewer v. Landrigan, 131 S. Ct. 445 (2010). In Zink, the district court found that the DOC keeps changing its protocol for the very purpose of delaying and preventing full and fair litigation of Mr. Bucklews and other plaintiffs lethal injection claims: Defendants protocol has been a frustratingly moving target. In the face of such a grave consequence as that of the death penalty, this Court declines to reward Defendants attempts to prevent Plaintiffs from fully litigating their claims.
Zink v. Lombardi, 2:12-CV-04209, Doc. 163 at 12-13. These efforts by Defendants to delay and obstruct continue to this date, leaving Mr. Bucklew unaware of many aspects of Defendants protocol, including whether the lethal drug is even subjected to laboratory testing. Prior to the stay of discovery in Zink recently ordered by the court, Defendants continually delayed and obstructed discovery. The court has justly criticized this tactic: Defendants cannot repeatedly change the execution protocol, including within five days of a scheduled execution, and rely on Plaintiffs lack of time to research the protocols effects when arguing that Plaintiffs have not presented substantial likelihood of success on the merits. Id. at 10-11.
II. Mr. Bucklew Has Attempted to Obtain Funds to Retain Experts, Which Defendants Have Actively Opposed at Every Turn Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 8 of 21 9
Defendants misstate the extensive record that establishes that Mr. Bucklews counsel have repeatedly attempted to obtain experts and funding to litigate Mr. Bucklews claims. Defendants fail to inform the Court that not only do they know that Mr. Bucklew has litigated, extensively, his right to access to experts but that they have actively opposed such motions that were brought in Missouri state court. It is extremely disingenuous for the Defendants to accuse Mr. Bucklew of dragging his feet on this grievance. The State of Missouri represented by the same state Attorney Generals office has repeatedly opposed Mr. Bucklews efforts to obtain expert services in the previous litigation. Promptly upon discovering the relationship between Mr. Bucklews vascular malformations and the prospects for an unconstitutional lethal injection execution, Mr. Bucklews counsel consulted with a medical expert in the area. This expert was qualified and willing to examine Mr. Bucklew and to conduct a detailed medical literature review to determine to a reasonable degree of scientific certainty whether lethal injection pursuant to Missouris execution protocol would cause a substantial risk of pain to Mr. Bucklew. Even though Mr. Bucklew was indigent and counsel made a prima facie showing that Missouris execution protocol was at least constitutionally suspect, as applied to Mr. Bucklew, the State actively opposed Mr. Bucklews efforts to obtain the funds necessary to secure an expert, and no court or indigent-defense entity was willing to authorize the funds necessary to obtain the expert services that were required to meet Mr. Bucklews burden of proof. On June 9, 2008, counsel filed an ex parte motion in the Eighth Circuit for expert services funding. Mr. Bucklew sought the modest sum of $7,200, which the proposed expert deemed reasonably necessary at that time to assess Mr. Bucklews medical condition to determine whether execution by Missouris lethal injection protocol would cause Mr. Bucklew to Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 9 of 21 10
suffer excruciating pain. On June 27, 2008, the Eighth Circuit denied the motion without explanation. Bucklew v Luebbers, Case No. 03-3721. Counsel then sought funds from Missouri State Public Defender with which to hire an expert. Its director denied counsels request. In denying the request for funds, the director stated the denial was based entirely on lack of money. Accordingly, on June 15, 2009, counsel filed a petition for writ of mandamus in the Missouri Supreme Court asking it to direct Missouri State Public Defender to provide either expert services for Mr. Bucklew or funds with which Mr. Bucklews counsel could obtain expert services. Counsel presented the Missouri Supreme Court with an ex parte affidavit by the medical expert concerning his willingness to serve as an expert and his initial opinion that Mr. Bucklews cavernous hemangiomas posed serious potential risks in an execution by lethal injection. The Missouri Supreme Court denied the mandamus petition without prejudice to seeking relief in circuit court. State ex rel. Bucklew v. Robinson, SC90198 (Mo. June 30, 2009) (en banc). On December 30, 2009, Mr. Bucklew sought relief in Cole County Circuit Court. One of the assistant state attorneys general then handling lethal-injection litigation appeared at the February 5, 2010 hearing. On February 22, 2010, the State Attorney Generals office filed suggestions in opposition or, in the alternative, a motion to dismiss. On March 29, 2010, the same office filed supplemental suggestions in opposition to expert funding. On March 30, 2010, the Cole County trial court summarily denied relief. State ex rel. Bucklew v. Robinson, No. 09AC-CC00766 (Cir. Ct. Cole Cty. Mar. 30, 2010). On May 27, 2010, Mr. Bucklew returned to the Missouri Supreme Court, which had initially denied relief without prejudice. On June 24, 2010, the State filed suggestions in Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 10 of 21 11
opposition. Once again the Missouri Supreme Court denied relief without prejudice. State ex rel. Bucklew v. Robinson, No. SC90924 (Mo. Aug. 31, 2010). On September 29, 2010, Mr. Bucklew brought an action in the Missouri Court of Appeals, Western District. Without waiting for the suggestions in opposition, that court summarily denied relief. State ex rel. Bucklew v. Robinson, WD72984 (Oct. 13, 2010). After Mr. Bucklew had exhausted his remedies at both lower levels of the state courts, on February 23, 2011, he sought MSPDS funding once more from the Missouri Supreme Court. Without waiting for another answer from the state, the latter court denied relief, this time with prejudice. State ex rel. Bucklew v. Robinson et al., No. SC91556 (Mo. Mar. 29, 2011) (en banc). (For this Courts review, Mr. Bucklews last application to the Missouri Supreme Court is attached as Ex. 3, and the dockets from the various state actions have been combined are attached as Ex. 4). In March 2011, appointed counsel filed Criminal Justice Act (CJA) vouchers seeking payment for, inter alia, counsels persistent efforts to obtain funding for a medical expert. The risks posed to Mr. Bucklew by lethal injection are an issue both in court proceedings and in executive clemency, as the Governor has the power to grant clemency on any grounds, including that the intended execution will inflict pain and suffering on the prisoner in violation of the Eighth Amendments ban on Cruel and Unusual Punishment. (Indeed, in the past few weeks, undersigned counsel has communicated repeatedly with the Governors office, through one of his aides, supplying extensive information about Mr. Bucklews cavernous hemangiomas as well as affidavits from Mr. Bucklews medical experts including two physicians counsel was fortunate enough to locate who were willing, in the present exigent situation, to provide initial affidavits at no charge, with merely the hope of being compensated at later date.) Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 11 of 21 12
The district court cut counsels vouchers by approximately 70 percent and denied any further funding whatsoever. (When Mr. Bucklews co-counsel unsuccessfully sought review in the United States Supreme Court by filing a petition for certiorari, the State again registered its opposition). Thus, from February 2012 to the present, counsel has been obligated to represent Mr. Bucklew for no compensation whatsoever, not even for expenses. Mr. Bucklews counsel then returned to the district court in April 2014, again seeking approval of a proposed budget for representation and again requesting fees for expert services, including $7,500 for a physician to review Mr. Bucklews records, examine him and render an opinion. Mr. Bucklews inability to obtain funding has placed him at an extreme and unfair disadvantage. With the ability to assign four attorneys to this case and the ability to pay for any medical testing or the services of an expert, the State has not been similarly burdened. After repeatedly opposing counsels efforts to obtain funding for a medical expert, they now assert that counsel should somehow have conjured up free experts willing to spend many hours reviewing records and providing opinions. Given its active opposition to Mr. Bucklews efforts to obtain funding, the State should be estopped from making this disingenuous argument. At any point, the State could have changed its opposition and could have confessed error and endorsed the payment of $7,200 that Mr. Bucklew was seeking for the initial experts time and expenses. Defendants complain that after the predictable atrocity in the case of Dennis McGuire in Ohio who also had a preexisting condition that the DOCs own expert, Mark Dershwitz, persuaded a federal court to disregard and after the more recent failed execution of Clayton Lockett, experts have come forward to provide affidavits. Those bungled executions were not the reason these experts supplied affidavits. Rather, these experts have agreed to assist counsel after the Missouri Supreme Court set an execution date. It is the imminence of the execution Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 12 of 21 13
date and the urgency it imposes that has enabled counsel to persuade medical experts to assist them in this litigation. It is not Mr. Bucklew or the experts, but the Defendants, who have been the laggards here, for not paying attention to the clear evidence they began to receive in June 2009 much of which originated in their own files, and which remains undisputed to this day. Moreover, throughout Mr. Bucklews entire incarceration, dating back 18 years, the State has had access to Mr. Bucklews medical records and has had notice of his grave medical condition. Defendants misstate the facts regarding the payment of fees to Dr. Zivot and Dr. Jamroz. Dr. Zivot and Dr. Jamroz are experts, and they ultimately hope and expect to be paid for their work like any other expert with specialized knowledge. At present, Mr. Bucklews counsel are paying out of their own pocket to obtain the medical records those experts need to review and similarly are paying for all out-of-pocket expenses, including Dr. Zivots travel expenses. Absent the imminence of the execution date, counsel would not have been able to obtain these opinions from medical experts who are extremely busy with their own practices and heavy responsibilities. III. Mr. Bucklews Medical Evidence Is Uncontroverted Defendants filing is remarkable for what it does not argue. Defendants make no attempt to refute Mr. Bucklews factual showing that Missouris protocol, as applied to him, creates a significant risk of substantial harm. Defendants still offer no expert evidence to refute the opinions of any expert offered by Mr. Bucklew. The Missouri DOC has known about Mr. Bucklews serious and risky medical condition for 18 years. Although Mr. Bucklews vascular malformations and tumors have grown throughout his adult life, including his 18 years in the custody and care of the DOC, no imaging neither a CT scan nor an MRI has been conducted on Mr. Bucklew during the last four years. The report following a June 2010 MRI describes Mr. Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 13 of 21 14
Bucklews hemangioma as a large complex right facial mass that extends through the right- side nasal passages, sinuses, pharynx, jaw, palate and throat. (Doc. 1, at 4). The DOC record goes on to note that Mr. Bucklews airway is severely compromised. Id. (emphasis added). In 2003, a DOC doctor wanted Mr. Bucklew to be examined immediately by a specialist because of the progression of the vascular tumor, which the doctor believed could be potentially fatal to the patient. Id., at pp. 9-10. A July 2011 medical report noted there was difficulty [with] bleeding management. Two months later, another doctor noted the alarming expansion of the lesion, stating it encompassed the entire soft palate and uvula, which are impossible to visualize due to the expansion of the lesion. Now, Defendants suggest that it is Mr. Bucklew that has been dilatory when they themselves have failed in their duty under the Eighth Amendment to provide adequate medical care. The medical records speak for themselves and this argument is without merit. Mr. Bucklew has presented two affidavits from Dr. Zivot, a board-certified anesthesiologist who teaches at Emory University School of Medicine, and an affidavit from Dr. Gregory Jamroz, who practices at St. Lukes Hospital in St. Louis both of whom state that Missouris method of lethal injection poses unique risks to Mr. Bucklew, as his large hemangiomas are likely to impair the proper circulation of the lethal drug, leading to a prolonged and problematic execution. Such an execution is highly likely to be excruciating. Dr. Zivot states that a substantial risk exists that Mr. Bucklews hemangiomas will rupture and bleed during the execution, causing Mr. Bucklew to choke and cough, which he will experience as severe pain and suffocation. (Doc. 1, Ex. 1). On May 12, 2014, Dr. Zivot examined Mr. Bucklew and supplemented his original affidavit. (Ex. 6 Affidavit of Joel Zivot, M.D. May 14, 2014). Defendants, despite being noticed Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 14 of 21 15
of the affidavit on May 14, 2014, wholly fail to respond to Dr. Zivots observations and opinions. Dr. Zivot observed what the DOCs treating physicians have said repeatedly that Mr. Bucklews airway is severely compromised or obstructed due to the hemangiomas. It is also friable, meaning it could tear or rupture. Id., p. 1. That puts Mr. Bucklew at grave risk during the execution coughing, choking, and straining to breathe could all lead to a full obstruction of his airway and suffocation. Id. IV. The State Has Failed in Its Obligation to Provide Medical Care and Obtain Necessary Testing, and Has No Plan to Meet Its Obligation to Provide Medical Care When Mr. Bucklews Execution Is Unsuccessful.
If the state is to carry out executions, it must do so within the confines of the Eighth Amendment. Mr. Bucklew has presented detailed, uncontroverted medical evidence based on the DOCs own medical records 1 and the expert affidavits of Dr. Jamroz (Doc. 1-2) and Dr. Zivot (Doc. 1-2, and Doc.7-1, Ex. 5) that there is substantial risk that Mr. Bucklew will experience constitutionally intolerable pain and suffering during his execution. Defendants are obligated to reduce these risks. Defendants have failed in their constitutionally mandated obligation to provide adequate medical care to Mr. Bucklew. Defendants argue that the Mr. Bucklews request for a temporary restraining order and preliminary injunction is untimely insofar as it relies on a request for testing that cannot be completed before Bucklews scheduled execution. (Doc. 8, p. 9). If there isnt time to perform the required testing, the fault lies with Defendants. Defendants have known about Mr. Bucklews serious medical condition, his propensity to hemorrhage and his severely compromised airway for years. The primary reason Plaintiff is in this position, shortly before the scheduled execution, is because Defendants have not obtained the medical care and
1 See Ex. 5, a compilation of the most relevant excerpts from Mr. Bucklews medical records. Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 15 of 21 16
diagnostic testing that they are obligated to provide to Mr. Bucklew. Mr. Bucklews counsel informed Defendants that medical providers were willing to conduct the necessary testing, but that a doctor, acting as Mr. Bucklews treating physician, had to order the tests. Counsel heard nothing from Defendants after conveying this information. It is likely, though only Defendants can confirm, that they are unable to obtain the consent of any doctor to order the tests in an attempt to clear Mr. Bucklew for execution, because Corizon and PharmaCorr, the providers of medical care to DOC inmates, do not participate in executions in any way. Corizon and PharmaCorr do not participate in executions in Missouri or any other state. 2 The DOC alone is responsible for providing medical care and for ensuring that a doctor is obtained who can order the necessary tests. Defendants are responsible for ensuring that their lethal injection protocol comports with the Eighth Amendment as applied to Mr. Bucklew. Defendants cannot pass this responsibility to Mr. Bucklew when they are the only ones in the position to order the tests, absent intervention by this Court. Chief of Neuroradiology and Professor of Radiology at Washington University in St. Louis, Franz J. Wippold, II, M.D., submitted a letter to this Court on May 14, 2014, indicating that Barnes Jewish Hospital and the Washington University Medical School are willing and uniquely suited to further evaluate and conduct testing on Mr. Bucklew should Mr. Bucklews treating physician refer him, or should this Court order the necessary testing. (Ex. 1). Dr. Wippold suggested, as have all other experts, that Mr. Bucklews airway needs to be evaluated before any procedure including imaging tests could safely take place. Id., at 1. Dr. Wippold has not been retained as an expert for Mr. Bucklew, he has no plausible reason to exaggerate the seriousness of Mr. Bucklews condition, and Defendants do not even mention his letter in their
2 Bob Priddy, Prison healthcare company says it makes no death drugs. MissouriNet, Jan. 23, 2014. Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 16 of 21 17
suggestions in opposition. Dr. Wippold simply recognizes the risks that any reasonably competent medical provider recognizes that Mr. Bucklews condition is serious, complex and requires expertise, skill and equipment to evaluate. Defendants argument that Mr. Bucklew is out is time fails for want of logic and basis in fact. Defendants are the only party that can order the evaluation and testing, they are constitutionally obligated to do so, and they have not fulfilled these obligations. Simply because they say it is the fault of Mr. Bucklew does not make it so. If Mr. Bucklews execution is botched, or unsuccessful, then the DOCs obligation to provide medical care fully resumes. Defendants state, incorrectly and without authority, that Bucklew asks that Missouri make plans to revive him during the execution. That is a change in the method of execution, and it is not required by law. (Doc. 8, p. 7). Defendants are mistaken. In this Circuit, in order to prevail on an Eighth Amendment claim involving the deprivation of medical care to treat an existing condition, an inmate must show that the prison official was deliberately indifferent to the inmates serious medical needs. Schaub v. Vonwald, 638 F.3d 905, 914 (8th Cir. 2011)(citing Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997)). Two showings are required: that the inmate suffered from an objectively serious medical need, and ... the prison official knew of the need yet deliberately disregarded it. To constitute a serious medical need, the health problem must be one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctors attention. Id. (quoting Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995)). Deliberate indifference in this context entails something more than mere negligence, ... [but is] satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Farmer v. Brennan, 511 U.S. 825, 835 (1994). There Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 17 of 21 18
is a subjective requirement: an official cannot be found liable of an Eighth Amendment violations unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. at 837. Thus, the Supreme Court has determined that subjective recklessness as used in the criminal law ... [is] the test for deliberate indifference under the Eighth Amendment. Id. at 840. Deliberate indifference is evaluated on the basis of the officials knowledge at the time in question, not by hindsights perfect vision. Schaub, 638 F.3d at 914. The Eighth Circuit has found such deliberate disregard when officers ignore an inmate who tells them he has heart disease and is experiencing related symptoms. Gordon v. Frank, 454 F.3d 858, 863 (8th Cir. 2006). Similarly, when an inmate exhibits obvious signs of medical distress and communicates this distress directly to officers, there is deliberate indifference because a reasonable officer would know that it is unlawful ... to delay treatment under the circumstances. Id. Wherever there is an obvious risk of harm, the inference is justified that the official subjectively disregarded a substantial risk of serious harm to the inmate. Schaub, 638 F.3d at 915. Mr. Bucklew isnt asking the DOC to revive him. The DOC is constitutionally required to provide him adequate medical care, including resuscitation efforts, in the event of an unsuccessful execution, which would mean that Mr. Bucklew survived the effort to kill him. If Mr. Bucklews execution is unsuccessful, the DOCs obligation to provide medical care is reinstated in that instant. Mr. Bucklew has sounded the alarm, with convincing evidence that his vascular tumors will likely prevent the lethal drug from circulating properly, and has called for additional tests of his vascular system to further analyze these risk tests that the DOC was Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 18 of 21 19
obligated to obtain. If the drug does not circulate properly, or Mr. Bucklew hemorrhages and begins to choke on his own blood, as Mr. Bucklew and his experts have warned, then the DOC has an obligation to step in the minute the execution is unsuccessful. Missouris execution protocol provides no contingency for a failed execution, or a situation where a prisoner starts gasping for air or experiences hemorrhaging. Ex. 6, at 2. Mr. Bucklew has informed the DOC of these risks, they are reasonably apparent to any competent medical provider, and the DOC is constitutionally obligated to account for these risks. They have failed in their constitutional obligations, and Mr. Bucklew is entitled to a stay of execution until Defendants comply with the demands of the Constitution. In Oklahoma, only days ago, the Oklahoma DOC had an obligation to try and revive Mr. Lockett when officials botched his execution. When the execution failed, officials were unprepared and did not have resuscitation personnel and equipment available. As a result, Mr. Lockett suffered for 43 agonizing minutes in what President Obama called a deeply disturbing execution, and that prompted him to order a federal policy review of execution protocols and procedures, including Missouris. Mr. Bucklew has given Defendants detailed, convincing evidence and expert opinions supported by the record that the risks posed during Mr. Bucklews execution are constitutionally intolerable. V. Conclusion WHEREFORE, for the reasons set forth in this reply, as well as those presented in Mr. Bucklews Motion for Temporary Restraining Order and Preliminary Injunction (Docs. 2, 3) and his Motion for Stay (Doc. 6), Mr. Bucklew respectfully requests that this Court: Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 19 of 21 20
1. Issue a stay of execution so that Mr. Bucklew may obtain necessary imaging and testing; 2. Order that Washington University and Barnes Jewish Hospital conduct the necessary testing and imaging in this case, as described by Dr. Wippold; 3. Grant Mr. Bucklew a hearing on his motion for temporary restraining order and preliminary injunction so that the Court may hear evidence from the experts in this case; and, 4. Grant further relief as the Court deems just and appropriate. Respectfully submitted,
/s/ Cheryl A. Pilate Cheryl A. Pilate #42266 Lindsay J. Runnels #62075 Morgan Pilate, LLC 926 Cherry St. Kansas City, Missouri 64106 (816) 471-6694 (816) 472-3516 (fax)
Attorneys for Mr. Bucklew
Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 20 of 21 21
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was forwarded for transmission via ECF this 16 th day of May, 2014, to Michael Spillane, Stephen D. Hawke, Sue Boresi, Office of the Attorney General, P.O. Box 899, Jefferson City, Missouri 65101.
/s/ Cheryl A. Pilate Cheryl A. Pilate Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 21 of 21
25 Soc - Sec.rep - Ser. 56, Unempl - Ins.rep. CCH 14556a John R. Wallace v. Otis R. Bowen, Secretary of Health and Human Services. Appeal of John R. Wallace, 869 F.2d 187, 3rd Cir. (1989)
Rosemarie T. Schwilm, Administratrix of The Estate of Carrol A. Schwilm, Deceased v. Thomas J. Holbrook, M.D. and Cabell Huntington Hospital, 661 F.2d 12, 3rd Cir. (1981)
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