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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
RUSSELL BUCKLEW )
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. BUCKLEW’S
MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION, AND MR. BUCKLEW’S MOTION TO STAY EXECUTION
Defendants’ response is devoid of any medical facts or expert opinions that challenge the
opinion of Plaintiff’s expert, Dr. Joel Zivot. Mr. Bucklew’s 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. Bucklew’s counsel to obtain funding for a
qualified physician to examine Mr. Bucklew, Defendants now attempt – remarkably – to blame
Mr. Bucklew’s 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. Bucklew’s 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.
Bucklew’s status as a death row prisoner and the likelihood that he would be executed, the State
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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. Bucklew’s arms would be sufficient – even though Mr.
Bucklew’s vascular tumors are in his head. Then, counsel in the Attorney General’s office
belatedly indicated he was amenable to an MRI of Mr. Bucklew’s head, but thought it could be
done instantly, with no treating or referring physician to request the test or work with specialists.
Significantly, Mr. Bucklew’s airway is so obstructed that medical tests would not likely be
performed without first obtaining an assessment of Mr. Bucklew’s airway. Instead of
Defendants’ counsel fulfilling the State’s constitutional obligations, it was Mr. Bucklew’s
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 counsel’s 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. Wippold’s 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. Bucklew’s counsel lack the resources for such medical consultation.
The reality is that Mr. Bucklew’s counsel have no funding – either for themselves or for medical
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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. Bucklew’s 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. Bucklew’s 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. Bucklew’s counsel fail in a final effort
to obtain funds, members of Mr. Bucklew’s family may be able to pay a small amount toward
Dr. Zivot’s fee. Aside from that, there is no funding, and Defendants’ counsel continue to
advocate and litigate without adequate resources against an Attorney General’s office that has
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the ability to assign four attorneys to this case and to obtain whatever medical consultation it
Defendants’ response to Mr. Bucklew’s 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. Bucklew’s 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. Bucklew’s brain functioning.
Defendants filed suggestions in opposition to Mr. Bucklew’s motion for temporary restraining
order and preliminary injunction (Docs. 2, 3) and Mr. Bucklew’s 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. Bucklew’s 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
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should be estopped from even making the argument. Defendants have had total access to Mr.
Bucklew’s 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 plaintiff’s “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 state’s 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.
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07-4129. Mr. Bucklew’s challenges to Missouri’s 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. Bucklew’s 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. Bucklew’s counsel that they would not use methylene blue in Mr. Bucklew’s
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 Plaintiff’s 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 Bucklew’s 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.
Bucklew’s expert, rather than the State’s execution doctor, who warned the DOC of the well-
documented risks of methylene blue and then indigo carmine? Why doesn’t the State’s allegedly
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board-certified anesthesiologist know of these risks? Defendants are changing their protocol on
the fly, which is further evidence of the DOC’s 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. Bucklew’s 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 DOC’s 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
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no evidence to controvert Plaintiff’s medical evidence. Surely, Defendants have had ongoing
and unfettered access to Plaintiff’s medical records and have the resources to obtain expert
opinions. Yet, they offer no evidence to dispute Mr. Bucklew’s 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. Bucklew’s 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
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 Plaintiff’s lack of time to research the
protocol’s effects when arguing that Plaintiff’s 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
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Defendants misstate the extensive record that establishes that Mr. Bucklew’s counsel
have repeatedly attempted to obtain experts and funding to litigate Mr. Bucklew’s 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 General’s office – has repeatedly opposed Mr. Bucklew’s efforts to obtain
expert services in the previous litigation.
Promptly upon discovering the relationship between Mr. Bucklew’s vascular
malformations and the prospects for an unconstitutional lethal injection execution, Mr.
Bucklew’s 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 Missouri’s
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 Missouri’s execution
protocol was at least constitutionally suspect, as applied to Mr. Bucklew, the State actively
opposed Mr. Bucklew’s 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. Bucklew’s 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. Bucklew’s medical condition to
determine whether execution by Missouri’s lethal injection protocol would cause Mr. Bucklew to
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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 counsel’s 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. Bucklew’s 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.
Bucklew’s 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)
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 General’s 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
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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 Court’s review, Mr. Bucklew’s 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, counsel’s 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 Amendment’s ban on Cruel and Unusual Punishment. (Indeed, in the past few weeks,
undersigned counsel has communicated repeatedly with the Governor’s office, through one of
his aides, supplying extensive information about Mr. Bucklew’s cavernous hemangiomas as well
as affidavits from Mr. Bucklew’s 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.)
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The district court cut counsels’ vouchers by approximately 70 percent and denied any
further funding whatsoever. (When Mr. Bucklew’s 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. Bucklew’s 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. Bucklew’s records, examine him and render an opinion.
Mr. Bucklew’s 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. Bucklew’s 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 expert’s 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 DOC’s 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
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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. Bucklew’s entire incarceration, dating back 18 years, the State has
had access to Mr. Bucklew’s 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. Bucklew’s 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. Zivot’s 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
III. Mr. Bucklew’s Medical Evidence Is Uncontroverted
Defendants’ filing is remarkable for what it does not argue. Defendants make no attempt
to refute Mr. Bucklew’s factual showing that Missouri’s 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.
Bucklew’s serious and risky medical condition for 18 years. Although Mr. Bucklew’s 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.
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Bucklew’s 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. Bucklew’s “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. Luke’s Hospital in St. Louis – both of whom state that
Missouri’s 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. Bucklew’s 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
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of the affidavit on May 14, 2014, wholly fail to respond to Dr. Zivot’s observations and opinions.
Dr. Zivot observed what the DOC’s treating physicians have said repeatedly – that Mr.
Bucklew’s 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. Bucklew’s 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 DOC’s own medical records
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. Bucklew’s 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 Bucklew’s scheduled execution.” (Doc. 8, p. 9). If there isn’t time to perform
the required testing, the fault lies with Defendants. Defendants have known about Mr.
Bucklew’s 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
See Ex. 5, a compilation of the most relevant excerpts from Mr. Bucklew’s medical records.
Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 15 of 21
diagnostic testing that they are obligated to provide to Mr. Bucklew. Mr. Bucklew’s counsel
informed Defendants that medical providers were willing to conduct the necessary testing, but
that a doctor, acting as Mr. Bucklew’s 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.”
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. Bucklew’s
treating physician refer him, or should this Court order the necessary testing. (Ex. 1). Dr.
Wippold suggested, as have all other experts, that Mr. Bucklew’s 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. Bucklew’s condition, and Defendants do not even mention his letter in their
Bob Priddy, Prison healthcare company says it makes no death drugs. MissouriNet, Jan. 23,
Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 16 of 21
suggestions in opposition. Dr. Wippold simply recognizes the risks that any reasonably
competent medical provider recognizes – that Mr. Bucklew’s 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. Bucklew’s execution is botched, or unsuccessful, then the DOC’s 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 inmate’s 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 doctor’s attention.” Id. (quoting Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir.
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
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 official’s knowledge at the time in question, not by
‘hindsight’s 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 isn’t 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. Bucklew’s execution is unsuccessful, the DOC’s 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
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. “Missouri’s 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 Missouri’s.
Mr. Bucklew has given Defendants detailed, convincing evidence and expert opinions
supported by the record that the risks posed during Mr. Bucklew’s execution are constitutionally
WHEREFORE, for the reasons set forth in this reply, as well as those presented in Mr.
Bucklew’s 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
1. Issue a stay of execution so that Mr. Bucklew may obtain necessary imaging and
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.
/s/ Cheryl A. Pilate
Cheryl A. Pilate #42266
Lindsay J. Runnels #62075
Morgan Pilate, LLC
926 Cherry St.
Kansas City, Missouri 64106
(816) 472-3516 (fax)
Attorneys for Mr. Bucklew
Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 20 of 21
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was forwarded for
transmission via ECF this 16
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
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