Expert Witnesses For The State Contradict Previous Testimony In Lethal Injection Trial

Apr 29, 2019

The federal courthouse in Little Rock where the trial is being held.
Credit Michael Hibblen / KUAR News

Attorneys for the state began calling witnesses Monday in a lawsuit brought by 18 Arkansas death row inmates who are challenging the use of the drug midazolam in lethal injections. Testimony by a pharmacologist and an anesthesiologist directly contradicted witnesses in similar positions and testified last week for the plaintiffs.

The case centers on whether midazolam is effective at keeping inmates unconscious and unaware of what is happening when the second and third drugs are administered to stop the heart and paralyze the muscles. Attorneys for the prisoners suggested through their experts and witnesses to executions involving midazolam that inmates suffered pain.

Dr. Daniel Buffington, a clinical pharmacologist with the University of South Florida, testified Monday that a 500 milligram dose of midazolam, as used in Arkansas’s execution protocol, would be "sufficient and appropriate" to keep inmates from feeling pain.

"Each of the three drugs play a strategic role like puzzle pieces. They’re given in timely manners given their properties. They serve a purpose and the end goal is within 15-plus minutes to end the life as the protocol is designed. And midazolam’s sedative effect is sufficient to cover that period of time," Buffington said.

He was questioned by Senior Assistant Attorney General Jennifer Merritt about the convulsions described by witnesses to the execution of Kenneth Williams. He was said to have repeatedly lurched against the restraints of the gurney, with autopsy photos showing wounds and bruises from the restraints.

"Have you ever observed a patient who has received IV midazolam and had involuntary movements or seizures?" Merritt asked.

"Yes, and other anesthetic agents too. It’s not an uncommon scenario when a patient is being induced or maintained," Buffington said.

"If I was watching somebody [being executed], what would it look like to me?" Merritt asked.

"They would go from still to moving or moving aggressively or gasping or coughing, making an audible sound. It’s when the body is sending a signal to the body so it’s a neuromuscular response to try to get more air at that moment," Buffington said.

He reviewed the testimony of execution witnesses who were called to the stand last week, Buffington said, but it hasn’t changed his opinion.

"It is indicative of the medications that are having their effects. It is a lethal injection protocol. It’s that each of those medications are contributing to the process, and it’s not an unexpected reaction, nor would it be indicative or interpreted to mean severe pain," Buffington said.

That contradicts testimony from Dr. Craig W. Stevens last Wednesday, who is a professor of pharmacology at Oklahoma State University. He said "for a certain" that an inmate would feel pain because midazolam does not produce anesthesia. Stevens also testified about a "ceiling effect" for benzodiazepines like midazolam when additional doses of the drug can no longer be felt.

Plaintiff’s attorney Joseph Warden challenged Buffington during cross-examination about the ceiling effect and his belief that one hasn’t been proven for midazolam.

"What I’m articulating in that report is that there’s no evidence of any ceiling effect in humans demonstrated. Any drug may have a ceiling effect, but until you document it and demonstrated it then you can’t just make it up. You can’t say what you think it is. That’s a theory or hypothesis," Buffington said.

An anesthesiologist, Dr. Gail Van Norman, testified Friday that she believed two inmates who were put to death by Arkansas in 2017 and have been frequently discussed during this trial suffered "excruciating" pain. She argued that midazolam doesn’t have any clinical anesthetic effects and would never use the drug when overseeing anesthesia for patients preparing for surgery.

When asked about that by attorney Joseph Warden, Buffington said, "that’s perfectly her right. That doesn’t mean that’s the standard of care for others at various institutions across the country."

Dr. Joseph Antognini, an anesthesiologist with the University of California-Davis Medical Center, was then called to testify. He said that he has handled about 10,000 cases of anesthesia over the years. In the past, Antognini said he used midazolam to induce patients for general anesthesia, but no longer uses the drug for that purpose because newer and better drugs have been released.

He testified that the dose used by Arkansas would keep an inmate unable to feel pain.

"It’s my opinion that the drug midazolam at 500 milligrams administered intravenously would render an inmate insensate, unconscious and insensate to a noxouis stimuli or unable to perceive pain that might occur or arise from other drugs or stimuli," Antognini said.

Most of the times Antognini has used midazolam, he said, has been in low doses as a sedative to calm patenits before surgery. 

The trial being heard by U.S. District Judge Kristine Baker is expected to continue through the end of the week and include testimony from Department of Correction Director Wendy Kelly. She and Gov. Asa Hutchinson are named as defendants in the lawsuit.

This story has been corrected to clarify Antognini's testimony about his use of midazolam.