Daubert Factors Have Limited Application to Anesthesiology Expert Testimony Regarding Execution Injections

Court: United States District Court for the Southern District of Ohio, Eastern Division
Jurisdiction: Federal
Case Name: In re Ohio Execution Protocol Litig.
Citation: 2019 U.S. Dist. LEXIS 159805

The court notes that Daubert has limited use in death row cases because of the impossibility of conducting lab experiments on the impact of lethal injections on human beings.


Multiple inmates filed this civil rights action challenging different features of the state of Ohio’s execution protocol, including the effect of the drug Midazolam on consciousness and pain in human beings. Among the Daubert challenges was a motion in limine to exclude or limit the testimony proffered by the defendants’ anesthesiology expert witness.

The Anesthesiology Expert

The defendants’ anesthesiology expert witness had 30 years of experience working as a board-certified anesthesiologist. He received his medical degree from the University of Southern California and completed his residency in anesthesiology at the University of California Davis Medical Center. The expert subsequently taught at the University of California Davis Medical Center for 25 years. At the time of the case, the anesthesiology expert witness worked as a surveyor for the Joint Commission responsible for inspecting hospitals for accreditation. He had experience with benzodiazepines, a class of psychoactive drugs, as he used to test applicants for board certification on anesthesiological practices from 1998 to 2001.

The anesthesiology expert opined in his submitted report that midazolam is an analgesic (painkiller), can produce unconsciousness, and thus insensation when administered to a death row inmate. The expert was of the opinion that one has to be conscious to feel pain and that as such, administering Midazolam was beneficial for the inmates.


The court noted that a number of Daubert factors have limited use in the present case because of the difficulty caused by the impossibility of conducting a lab experiment on the impact of injecting 500 mg of Midazolam into a human being. The court cited the opinions of multiple witnesses who had testified that administering such a dose would be fatal more often than not. The court further noted that the extensive experience the anesthesiology expert had publishing peer-reviewed work related to the field of anesthesia along with his extensive work on the administration of Midazolam weighed in favor of acceptance of his report and admissibility of his testimony by the court.

The court further said that that the anesthesiology expert’s experience working both academically and clinically provided him with enough scientific knowledge to help the finder of fact. Moreover, the court noted that as the expert cited published studies to support his opinion and studied autopsy reports of inmates who had been executed with the help of Midazolam. It was apparent to the court that the anesthesiology expert had formed his opinion based on an adequate review of scientific literature and evidence. In addition to this, the court was of the opinion that the expert’s method of extrapolating data and statistics from animal studies did not harm the reliability of his opinion, as it was a practice commonly followed by the scientific community.


The plaintiff’s motion to exclude the testimony of the defendants’ anesthesiology expert witness was denied.