From the testimony in Miami Circuit Court :
Dr. David Waisel
On Tuesday August 2, 2011 at 9:00 a.m. the defense presented Dr. David B. Waisel, M.D. who testified after being duly sworn by the Clerk of the Court as follows:
He is a practicing anesthesiologist at Children‘s Hospital Boston and an Associate Professor of Anesthesia, Harvard Medical School. He has been practicing clinical anesthesiology, primarily pediatric anesthesiology, for approximately 18 years. He has written numerous articles and teaches courses on anesthesiology at Harvard Medical School and presents to other physicians in his field both nation and worldwide.
He further has provided consultation for the death penalty clinic at University of California Berkeley and testimony on the Pavatt (Oklahoma) execution and DeYoung and Blankenship (Georgia) executions. He has also
provided consultations in written form for death penalty litigation in Delaware, Connecticut and Pennsylvania.
He has been asked by the attorneys who represent the Defendant to provide an expert medical and scientific opinion about observations of the execution of Roy Blankenship by lethal injection on June 23, 2011.
Dr. Waisel was not in attendance at the execution. His information about the execution comes from the affidavit and interview of an eyewitness, Greg Bluestein, a reporter, whose report is the type of information experts in his field normally and regularly rely on in forming expert opinions. He also reviewed the affidavits of other purported eye witnesses who are also reporters; i.e., Eddie Ledbetter and Mitchell Peace. He also reviewed and relied on the 2007 and 2011 Florida lethal injection protocol as well as defense Exhibit #A and other affidavits described as approximately twelve (12) DOC officials without further elaborating.
Waisel opined that Blankenship ―suffered extremely‖ based on Waisel‘s understanding of what took place; that is, that Blankenship looked at one arm with ―discomfort‖, looked at the other arm ―with pain‖, grimaced, jerked his head up, mouthed words and all of this lasted for three (3) minutes. He is also of the impression that pentobarbital was used and that had the pentobarbital worked properly Blankenship would have moved for only fifteen (15) seconds after the
drug was administered. Dr. Waisel never opined as to what time the pentobarbital was administered.
Waisel testified that he does not know the proper amount of pentobarbital necessary to anesthetize the patient; only to sedate them. He stated that sedation and anesthetizing can be viewed along a continuum. Sedation would be at one end where a sedated patient may still be responsive and the anesthetized patient may be unconscious enough to have open-heart surgery. The average patient he stated to be 150 pounds and the proper dosage for sedation with pentobarbital would be from 100 to 500 mg. The amount used by the state for anesthetizing the inmate, he acknowledged, to be 5000 mg. but claims that he cannot say that the dosage is actually 10 times the sedation dosage because there has not been enough testing. He calls this use of pentobarbital an off-label use. He acknowledges that there are legitimate off-label uses for drugs. That is, the use as an anesthetic in execution is not the ―intended use‖ of the manufacturer. Only when a drug has been tested systematically can one begin to reliably assess how an untested use of a drug will affect human subjects, according to Dr. Waisel. Because we do not have sufficient data, there is no way to know, in any given case, how an overdose of pentobarbital will affect basically healthy inmates.
Waisel admitted that Blankenships movements could indicate discomfort or pain. He conceded that sodium thiopental, which he says was an ideal drug for use in executions, is an ultra short-acting barbiturate while pentobarbital is a short to intermediate-acting barbiturate.
This witnesses‘ testimony cannot and does not establish the necessary ―substantial risk of serious harm‖. His testimony is based on speculation and, is therefore, inherently unreliable. At the very least, he does not establish a reasonable effective, readily implemented alternative to pentobarbital. See Baze at 52. Further he does not establish that pentobarbital will not work. He seriously doesn‘t know. His testimony falls far short of meeting the required standard of ―demonstrating a substantial likelihood of serious harm.‖