Controversial Expert Testimony Survives Supreme Court Scrutiny In Oklahoma Death-Penalty Case

On June 29, 2015, the Supreme Court decided a controversial death-penalty case involving Oklahoma’s use of midazolam, a sedative, in its executions of prisoners. Finding that the use of the drug did not violate the Eighth Amendment’s ban on cruel and unusual punishment.

The case was originally brought by four inmates set for death sentences after an execution of another Oklahoma prisoner went awry. He woke up during the injection of the lethal drugs following a 100mm dose of midazolam. However, after a preliminary injunction was not granted in November 2014, one of the petitioning inmates was put to death using a 500mm dose of midazolam.

One of the most scrutinized issues in this case was the credibility of Oklahoma’s expert witness, Dr. Roswell Lee Evans, who testified that with the adjusted 500mm dose of midazolam the inmates would not sense any pain. Evans is a board certified psychiatric pharmacist, and currently serves as a dean at Auburn University.

He has testified that he has never used midazolam on a patient, and that he had never personally induced anesthesia.

At the District Court level, where the State eventually prevailed, Evans withstood a Daubert challenge by the petitioners, in which his credibility and high reliance on www.drugs.com in his testimony was challenged. Over half of Evans’ 300 page report were in fact printouts from drugs.com. This site features a disclaimer noting that its site is not intended for medical advice, diagnosis, or treatment.

In their challenge, the petitioners relied on a brief submitted by 16 professors of pharmacology.

Their brief concluded that midazolam alone cannot be used to maintain adequate anesthesia throughout the administration of the legal drugs. Including that increasing the dosage isn’t effective. There is a “ceiling effect” limiting the potency of the drug at higher doses. These experts also questioned Evans’ use of drugs.com as a major source in his report. Noting that more reliable primary literature should have been relied upon.

The Supreme Court ruled in favor of Oklahoma. Stating that because capital punishment is constitutional, there must be a constitutional means of performing it. This constitutional means does not include a completely painless method, as pain is inherent in any execution. As far as its review of the District Court’s rejection of petitioners’ Daubert challenge in relation to Dr. Evans, the Court agreed with the Court of Appeals’ finding that the District Court did not abuse its discretion by relying on Dr. Evans’ testimony.

The Court rejected the petitioners’ arguments that Evans relied on an unreliable source (drugs.com), noting that the District Court concluded that Dr. Evans was qualified to give the expert testimony he provided, and that this testimony was the product of reliable methods. The Supreme Court reviewed the District Court’s decision using the “abuse-of-discretion” standard set forth in General Elect. Co.. In doing so, the Supreme Court stated that much relied-upon material used by both parties has similar disclaimers as drugs.com. In addition, the petitioners did not challenge even one fact Evans derived from drugs.com.

The Supreme Court also agreed that any errors in Dr. Evans’ methods did not render his testimony unreliable in this case. In fact, the Court believed that the petitioners’ critiques of Dr. Evans were simply an attempt to cover up their speculative testimony about the “ceiling effect” of midazolam, and whether that effect occurs above or below the 500mm dosage Oklahoma planned on administering in future executions.

Finding qualified experts willing to testify on behalf of States in favor of the death penalty has grown difficult in recent years. The medical community has taken a stronger anti-capital punishment stance. The American Medical Association discourages its members from participating in executions. Furthermore, the American Board of Anesthesiology has threatened to rescind board certification for any of its 40,000 members if they chose to participate in an execution. The American Pharmacists Association has also recently discouraged their members from participating in executions.

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