474 1 IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, 2 IN AND FOR MARION COUNTY, FLORIDA 3 CASE NO.: 81-170-CF 4 5 STATE OF FLORIDA 6 vs. 7 IAN DECO LIGHTBOURNE, Defendant. 8 _____________________/ 9 VOLUME IV, PAGES 483-611 10 PROCEEDINGS: Evidentiary Hearing concerning lethal injection 11 (Diaz issue) 12 BEFORE: Honorable Carven D. Angel Circuit Judge 13 Fifth Judicial Circuit In and For Marion County, Florida 14 REPORTED BY: Noelani J. Fehr 15 Stenographic Court Reporter Notary Public 16 State of Florida at Large 17 DATE AND TIME: May 21, 2007; 2:15-5:10 p.m. 18 PLACE: Marion County Judicial Center Court Room 3A 19 110 N.W. 1st Avenue Ocala, Florida 34475 20 APPEARANCES: SUZANNE KEFFER, Esq., and 21 ANNA-LIISA JOSELOFF, Esq., and ROSEANNE ECKERT, Esq., and 22 NEAL A. DUPREE, Esq.,and CAROLINE KRAVATH, Esq. 23 Capital Collateral Regional Counsel 101 N.E. 3rd Avenue, Suite 400 24 Fort Lauderdale, FL 33301 Attorneys for Defendant 25 Owen & Associates (352) 624-2258 _

475 1 APPEARANCES: KENNETH S. NUNNELLEY, A.A.G., and BARBARA C. DAVIS, A.A.G., and 2 CAROLYN SNURKOWSKI, A.A.G. Office of the Attorney General 3 444 Seabreeze Blvd., 5th Floor Daytona Beach, Florida 32118 4 Attorneys for State 5 ROCK HOOKER, A.S.A. State Attorney's Office 6 19 N. Pine Street Ocala, FL 34475 7 Attorney for State 8 MAXIMILLIAN J. CHANGUS, Esq. Office of General Counsel 9 Florida Department Of Corrections 2601 Blair Stone Road 10 Tallahassee, FL 34399-2500 Attorney for Department of Corrections 11 ALSO PRESENT: Gail Watson, Judicial Assistant 12 Robert McLean, Law Clerk 13 14 15 16 17 18 19 20 21 22 23 24 25 Owen & Associates (352) 624-2258 _

476 1 I N D E X 2 Page 3 4 State's Witnesses 5 Mark Dershwitz Direct Examination (Mr. Nunnelley) 477 6 Voir Dire (Mr. Dupress) 484 Direct Examination Con't (Mr. Nunnelley) 485 7 Cross Examination (Mr. Dupree) 521 Redirect Examination (Mr. Nunnelley) 602 8 9 10 11 Certificate of Reporter 611 12 13 E X H I B I T S 14 Page 15 State's Exhibit Number 2 479 CV of Dr. Dershwitz 16 State's Exhibit Number 3 493 Chart on Thiopental concentration 17 State's Exhibit Number 3 493 Chart on Probability of consciousness 18 State's Exhibit Number 4 493 Chart on Thiopental concentration, 200 minutes 19 State's Exhibit Number 5 513 AVMA Press release 20 21 ***REPORTER'S NOTE: Transcript continued to Volume V. 22 23 24 25 Owen & Associates (352) 624-2258 _

477 1 AFTERNOON SESSION 2 May 21, 2007 2:15 p.m. 3 (Thereupon, the Honorable Judge Carven D. Angel entered the 4 courtroom and the following proceedings were had:) 5 THE COURT: Okay. We're resuming our 6 hearing. Let's call the next witness. 7 MR. NUNNELLEY: Your Honor, pursuant to 8 agreement, the State calls Dr. Mark Dershwitz out 9 of order. 10 THE COURT: Okay. 11 MARK DERSHWITZ, 12 having been produced and first duly sworn by the Clerk of 13 the Court as a witness on behalf of the State, was 14 examined and testified as follows: 15 THE WITNESS: I do. 16 DIRECT EXAMINATION 17 BY MR. NUNNELLEY: 18 Q State your name, if you would, sir? 19 A Mark Dershwitz. 20 Q How are you employed, sir? 21 A I work for the University of Massachusetts Medical 22 School and UMass Memorial Health Care. 23 Q What is your educational background, sir? 24 A I have a bachelor's degree in chemistry, a medical 25 degree, and a Ph.D. in pharmacology. Owen & Associates (352) 624-2258 _

478 1 MR. NUNNELLEY: May I approach, your Honor? 2 THE COURT: Sure. 3 BY MR. NUNNELLEY: 4 Q Dr. Dershwitz, I am showing you what is marked as 5 State's Exhibit 2 for identification. And for the record, 6 that would be the CV of Dr. Dershwitz that was previously 7 provided to opposing counsel. 8 Do you recognize that document, sir? 9 A Yes. 10 Q What do you recognize that document to be? 11 A That's the CV that I prepared on February 5th, 12 2007. 13 Q Does the document fairly and accurately relect 14 your training, education, and professional experience? 15 A Yes. 16 MR. NUNNELLEY: I would offer the CV into 17 evidence at this time, your Honor. 18 MR. DUPREE: I don't have an objection, I 19 just want to find out, if I could ask a question, 20 whether or not it's updated. He said this was of 21 February of 2007, so since February of 2007 if 22 there's any additions to that CV? 23 THE WITNESS: There are none. 24 MR. DUPREE: Then I have no objection. No 25 objection, Judge. Owen & Associates (352) 624-2258 _

479 1 THE COURT: Admitted. 2 (Thereupon, the above-referred-to item was 3 marked for identification as State's Exhibit 4 Number 2 and was received in evidence.) 5 BY MR. NUNNELLEY: 6 Q Dr. Dershwitz, you're an anesthesiologist; is that 7 correct? 8 A Yes. 9 Q If you could, sir, tell us, I guess maybe in fifty 10 words or less, what an anesthesiologist does? 11 A Many lay people think that anesthesiologists just 12 put people to sleep; but, in fact, we are in charge of the 13 entire peri-operative care of the patient. So we do 14 pre-operative evaluations, we take care of the patients in 15 the operating room, and then we take care of the patients 16 afterward, either in the recovery room or the Intensive Care 17 Unit. And many anesthesiologists also are intensive care 18 physicians and or pain management physicians. 19 Q Okay. Are you familiar with the drug from your 20 work as an anesthesiologist known as sodium thiopental? 21 A Yes. 22 Q Does that drug have another name? 23 A Well, there's a trade name, Pentothal Sodium, and 24 the official name is actually thiopental sodium. 25 Q Okay. Are you also familiar with the drug known Owen & Associates (352) 624-2258 _

480 1 as pancuronium bromide? 2 A Yes. 3 Q Does that drug also have a trade name that's used 4 with it, or to refer to it? 5 A Yes, the trade name Pavulon. 6 Q And I'm assuming you're also familiar with the 7 drug -- with potassium chloride? 8 A Yes. 9 Q Does -- that probably does not have a trade name, 10 does it? 11 A Not that I'm aware of. 12 Q Okay. Do you use, or have you used in the past, 13 those three drugs in your practice as an anesthesiologist? 14 A Yes. 15 Q Are you familiar with the effects of these three 16 drugs on a human being? 17 A Yes. 18 Q What is the use of, Dr. Dershwitz, thiopental 19 sodium? 20 A Typically, in an anesthetic it would be used as 21 the induction agent, which means that the medication is 22 given intravenously to put the patient to sleep. It is 23 possible, although very unusual, to give further doses of 24 thiopental to keep the patient asleep. But far more often 25 it's just used to put the patient to sleep. Owen & Associates (352) 624-2258 _

481 1 Q And when you're using thiopental sodium to put the 2 patient to sleep what is the next step that an 3 anesthesiologist will take in that operative process? 4 MR. DUPREE: Your Honor, I apologize for 5 interrupting. I've got an objection to predicate 6 at this point in time, because we have not 7 established this man's expertise. The State has 8 not tried to qualify him as an expert, and he's 9 going on about drugs and what their effects are. 10 I think we need to establish a predicate as to 11 what his expertise would be. 12 BY MR. NUNNELLEY: 13 Q I'll go back into it. Dr. Dershwitz, how long 14 have you been practicing as an anesthesiologist? 15 A Since 1986. 16 Q And in connection with your training as an 17 anesthesiologist have you had occasion to use the drug 18 thiopental sodium? 19 A Yes, many times. 20 Q In connection with your work as an 21 anesthesiologist have you had occasion to use the drug 22 pancuronium bromide? 23 A Yes. 24 Q In connection with your work as an 25 anesthesiologist since 1986, was it? Owen & Associates (352) 624-2258 _

482 1 A Yes. 2 Q Have you had occasion to use the drug potassium 3 chloride? 4 A Yes. 5 Q Are you a board certified anesthesiologist? 6 A Yes. 7 Q How long have you been a board certified 8 anesthesiologist? 9 A I was first board certified in 1987, and I 10 voluntarily recertified in 2005. 11 Q And you are a faculty member of the University of 12 Massachusetts? 13 A Yes. 14 Q What do you teach at the University of 15 Massachusetts? 16 A I have two primary teaching responsibilities. I'm 17 responsible for the educational program for our residents 18 who are in training to been anesthesiologists. I'm also the 19 course co-director of the second year medical pharmacology 20 course that's given to all of the medical students. 21 Q In addition to your medical degree as an 22 anesthesiologist you also have a Ph.D. in pharmacology; is 23 that correct? 24 A Yes. 25 MR. NUNNELLEY: Your Honor, I would offer the Owen & Associates (352) 624-2258 _

483 1 witness as an expert in the field of 2 anesthesiology at this time. 3 MR. DUPREE: I'm sorry, in the field of what? 4 MR. NUNNELLEY: Anesthesiology. 5 MR. DUPREE: Is that it? If it's as to 6 anesthesiology, I have no objection, your Honor. 7 THE COURT: Proceed. 8 MR. DUPREE: Thank you. 9 MR. NUNNELLEY: Also pharmacology, your 10 Honor, given his training, education, and 11 experience. I misspoke. 12 MR. DUPREE: Your Honor, I would object to 13 predicate on that -- on those grounds. 14 THE COURT: Do you want to voir dire the 15 witness? 16 MR. DUPREE: Thank you, Judge. 17 MR. NUNNELLEY: Your Honor, again, I renew my 18 objection to Mr. -- I know the Court's ruled. I 19 don't want to call cat the judge's rule, but 20 again, I renew my objection to Mr. Dupree acting 21 both as an advocate and a witness. It's a clear 22 violation of the ethical rules. 23 MR. DUPREE: Whoa, whoa. 24 THE COURT: I overrule the objection. Go 25 ahead. Owen & Associates (352) 624-2258 _

484 1 MR. DUPREE: Judge, I've got take an 2 exception to being called non-ethical. I mean, 3 that's -- that's a little bit much, I think. 4 VOIR DIRE EXAMINATION 5 BY MR. DUPREE: 6 Q Sir, I just want go over your educational 7 background with you a little bit. Can you tell me which 8 college you graduated from? 9 A I have a bachelor's degree in chemistry from 10 Oakland University in Rochester, Michigan. 11 Q And where did you go to medical school? 12 A Northwestern University in Chicago. 13 Q And you became a doctor there? 14 A I received my medical degree from Northwestern, as 15 well as my Ph.D. in pharmacology. 16 Q And where did you train after that? 17 A I did an internship at the Carney Hospital in 18 Boston. I did a residency in anesthesiology at Mass General 19 Hospital in Boston. And I did a research fellowship also 20 with the Department of Anesthesiology in Mass General in 21 Boston. 22 Q Okay. Are you a pathologist, sir? 23 A No. I am a toxicologist, however, though. 24 Q Do you do forensic toxicology? 25 A As a consultant, yes. Owen & Associates (352) 624-2258 _

485 1 Q Is that part of your expertise? 2 A Yes. 3 Q And you -- but you did not have to do any 4 pathology? 5 A I do not practice pathology, but I often consult 6 for many different groups as a toxicologist. 7 Q Have you ever been declared an expert in any court 8 of law as a forensic pathologist? 9 A Not as a forensic pathologist but as a 10 toxicologist. 11 MR. DUPREE: Thank you, your Honor. 12 THE COURT: Proceed. 13 MR. NUNNELLEY: Your Honor, for the record, I 14 assume since I have heard no further objection Mr. 15 Dupree has none. 16 DIRECT EXAMINATION 17 BY MR. NUNNELLEY: 18 Q Now, Dr. Dershwitz, you were talking about 19 thiopental sodium being the induction agent in anesthesia, 20 correct? 21 A It is one of the induction agents that can be 22 used. 23 Q And when you say an induction agent, what does 24 that mean? What is the next step, if you will? 25 A Typically, after the patient is rendered Owen & Associates (352) 624-2258 _

486 1 unconscious with thiopental other medications are given to 2 keep the patient asleep for the duration of the surgery. 3 Q Would those be either intravenous medications or 4 inhaled medications? 5 A Usually it's a combination of both. 6 Q Okay. What is the usage of pancuronium bromide in 7 surgery? 8 A It's a paralytic agent that by paralyzing the 9 skeletal muscles makes it easier for the surgeon to operate 10 in cases where such muscle relaxation is advantageous. 11 Q Okay. And what would be the use of potassium 12 chloride? 13 A Well, potassium chloride is a salt, and it is a 14 common component of the intravenous fluids that we use. 15 Q Okay. What is the typical induction dose of 16 thiopental sodium? 17 A In an eighty kilogram person it would be typically 18 around three hundred to four hundred milligrams. 19 Q Have you had occasion, Dr. Dershwitz, to review 20 the August 16th, 2006, protocols for carrying out lethal 21 injection that are -- were produced by the Department -- the 22 Florida Department Of Corrections? 23 A Yes. 24 MR. NUNNELLEY: May I approach, your Honor? 25 THE COURT: Sure. Owen & Associates (352) 624-2258 _

487 1 BY MR. NUNNELLEY: 2 Q Dr. Dershwitz, I am showing you what is marked as 3 Joint Exhibit 1. I would ask you to take a look at that 4 document and tell us if you recognize it, sir? 5 A I have read it before. 6 Q Does that document set out the dose of thiopental 7 sodium that is used in an execution? 8 A Yes, it does. 9 Q What dose of thiopental sodium does the August 16, 10 2006 protocols set out? 11 A Five thousand milligrams, or five grams. 12 Q How does a five gram dosage of thiopental sodium 13 compare to the normal induction used of thiopental sodium in 14 surgery? 15 A Well, it's a huge overdose. 16 Q Have you also -- let me ask you, also, sir, in the 17 proto -- the protocol also sets out the dosage of 18 pancuronium bromide that is used in an execution by lethal 19 injection in Florida, doesn't it? 20 A Yes. 21 Q And what dosage does it set out for pancuronium 22 bromide? 23 A One hundred milligrams. 24 Q And how does that dose compare to the typical 25 dosage employed in surgery? Owen & Associates (352) 624-2258 _

488 1 A That's a huge overdose. 2 Q Does the August 16, 2006 protocol set out a dosage 3 of potassium chloride to be used in carrying out an 4 execution by lethal injection? 5 A Yes. 6 Q What dosage does the protocol set out? 7 A Two hundred and forty milliequivalents. 8 Q And how does that dosage compare to a typical 9 dosage used in medical practice, or in surgery, of potassium 10 chloride? 11 A Well, typically we don't think of giving potassium 12 chloride as a dose, but our most commonly used intravenous 13 fluid has potassium chloride in a concentration of four 14 milliequivalents per liter. So every time the patient gets 15 a liter of fluid the patient gets four milliequivalents of 16 potassium chloride. 17 Q And how long would that -- over how long a period 18 of time would that liter be administered? 19 A Well, that varies tremendously from case to case, 20 depending on how much the blood loss is, but it could be as 21 rapidly as every, you know, five to ten minutes, or slower 22 over an hour or two. 23 Q What would be the effect of a dose of two hundred 24 and forty milliequivalents of potassium chloride on a human 25 being? Owen & Associates (352) 624-2258 _

489 1 A If given rapidly it should stop electrical 2 activity in the heart. 3 Q What would be the effect of a dosage of five grams 4 of thiopental sodium on a human being? 5 A It's lethal by two different mechanisms. It will 6 cause the person to stop breathing, and it will also stop or 7 cause the circulation to decrease to such a degree that no 8 meaningful amount of circulation persists. 9 Q And the same question for the dosage of 10 pancuronium bromide, what would be the effect of that dosage 11 on a human being? 12 A It will paralyze all the skeletal muscles in the 13 body. 14 Q Do you have a judgment as to how long that 15 paralysis of the skeletal muscles will last? 16 A After a dose of one hundred milligrams, many, many 17 hours. 18 Q Okay. And do you have a judgment as to how long a 19 person who had received five grams, five thousand 20 milligrams, of thiopental sodium would remain unconscious, 21 assuming they did not die? 22 A And that's a very large assumption, because it 23 would take extraordinary efforts to keep their circulation 24 going. But if they maintained circulation and ventilation 25 the average eighty kilogram person given five thousand Owen & Associates (352) 624-2258 _

490 1 milligrams of thiopental would sleep for about fourteen 2 hours. 3 MR. NUNNELLEY: May I approach, your Honor? 4 THE COURT: Sure. 5 BY MR. NUNNELLEY: 6 Q Dr. Dershwitz, I'm showing you what is marked as 7 Joint Exhibit 2, and ask you if you would review that 8 document and tell us if you recognize it, sir? 9 A Yes. 10 Q What do you recognize that document to be? 11 A That is a revised lethal injection protocol that 12 is dated May 9th, 2007. 13 Q Let me ask you this first of all, have the dosages 14 of drugs that are employed or set out in the two protocols, 15 the August 16th, 2006 protocol and the May 9, 2007 protocol, 16 changed? 17 A No. 18 Q Has the method of the delivery of those drugs 19 changed? 20 A No. 21 Q Based on a comparison of the two protocols, the 22 May 9, 2007 and the August 16, 2006 protocols, do you have a 23 judgment as to whether the May 9, 2007 protocols have added 24 safeguards beyond those found in the August 16, 2006 25 protocols? Owen & Associates (352) 624-2258 _

491 1 MR. DUPREE: I want to object. It's beyond 2 the scope of his expertise. 3 THE COURT: Overruled. You may answer. 4 THE WITNESS: The primary difference is the 5 inclusion of a pause during which the personnel 6 will assess the inmate for the presence or absence 7 of unconsciousness. 8 BY MR. NUNNELLEY: 9 Q Do you feel that to be an improvement? 10 A Well, I think an improvement is not a, you know, 11 medical term, but it is a significant change. 12 Q Doctor, let me -- let me ask you this, in the 13 course of -- in your work as an anesthesiologist have you 14 had occasion, or do you have the occasion, to administer 15 pancuronium bromide or a similar paralytic drug in close 16 succession to the administration of an anesthetic agent? 17 A Yes, often. 18 Q Can you -- and the explanation may be a little bit 19 beyond what we need here, but what would be the circumstance 20 when you as an anesthesiologist in your care of a patient 21 would administer the paralytic drug quickly, rapidly, after 22 having administered the anesthetic? 23 A In most anesthetics where we induce anesthesia 24 with an IV drug and then paralyze the patient, the 25 anesthesiologist pauses after the induction agent and Owen & Associates (352) 624-2258 _

492 1 confirms that the patient is unconscious before giving the 2 paralytic drug. 3 However, there's a technique called rapid sequence 4 induction, whereby the paralytic drug is given immediately 5 after the hypnotic drug in order to cause the patient to be 6 become paralyzed and permit the insertion of a breathing 7 tube as rapidly as possible. 8 And the scenario in which we perform this is when 9 the anesthesiologist is concerned that the patient is at 10 risk for aspiration, meaning stomach contents coming up the 11 esophagus from the stomach and then going down the trachea 12 into the lungs, which can be catastrophic. So when we have 13 a patient who is at risk for aspiration we perform such a 14 rapid sequence induction. 15 Q Okay. Dr. Dershwitz, I asked your earlier about 16 the -- about how long a person would remain unconscious 17 after having received various doses of sodium -- thiopental 18 sodium. Have you prepared any charts or grafts that will 19 help elaborate upon your testimony? 20 A Yes. 21 MR. NUNNELLEY: We showed these to you all 22 last Thursday. May I approach, your Honor? 23 THE COURT: Sure. 24 BY MR. NUNNELLEY: 25 Q And Dr. Dershwitz, I'm showing you exhibits that Owen & Associates (352) 624-2258 _

493 1 are marked as State's Exhibits 3, 4 and 5 for 2 identification, and ask you if you would review those 3 documents, sir. 4 A Yes, I drew them. 5 Q Starting the with State -- with exhibit -- 6 MR. NUNNELLEY: Well, I want to offer them at 7 this time, your Honor. 8 MR. CHANGUS: Any objection? 9 MR. DUPREE: No, your Honor. 10 THE COURT: Admitted. 11 (Thereupon, the above-referred to items were 12 marked for identification as State's Exhibit 13 Numbers 3, 4, and 5 and were received in 14 evidence.) 15 BY MR. NUNNELLEY: 16 Q And Dr. Dershwitz, we have blown that chart up for 17 your -- for your use. Can you -- this is State's Exhibit 3. 18 Can you explain to Judge Angel what we are showing in 19 State's Exhibit 3? It's the red button, supposedly. 20 A Okay. This is what we call a pharmacokinetic 21 model that's based on a certain number of assumptions. And 22 in order to create this graph, which predicts the blood 23 concentration of thiopental on the Y Axis, note that that's 24 a logarithmic scala, and time following the completion of 25 the injection on the X Axis, and note that that's also a Owen & Associates (352) 624-2258 _

494 1 logarithmic scale. 2 And so I assumed that the patient was eighty 3 kilograms in size, was otherwise metabolically normal, and 4 that the thiopental five thousand milligrams was 5 administered over a period of 2.5 minutes. 6 And then this curve right here depicts how the 7 thiopental concentration will decline as a function of time 8 during the first twenty minutes following completion of the 9 administration of the drug. 10 Q And at the -- okay. At the twenty minute mark, 11 and this is in micro -- micrograms per milliliter -- 12 A Correct. 13 Q -- correct? What would be the drug concentration 14 when you run this out to the twenty minute mark? 15 A The twenty minutes, the thiopental concentration 16 is calculated to be 54.7 micrograms per milliliter. 17 Q Is that a concentration level that is consistent 18 or inconsistent with consciousness? 19 A At that concentration a person will have a 20 .0000094 percent chance of being conscious. 21 Q Okay. Thank you, sir. Now, if you would turn to 22 State's Exhibit 4. 23 A (Complies.) 24 Q State's Exhibit 4 seems to -- well, explain 25 State's Exhibit 4 for us, if you would, sir? Owen & Associates (352) 624-2258 _

495 1 A Okay. This is a graph that one could use to 2 determine the probability of consciousness as a function of 3 the concentration of thiopental in the blood. And so at low 4 thiopental concentrations, let's say below five micrograms 5 per mill, there's a high probability of being conscious. 6 The fifty percent mark is a concentration of 7 around seven, so at seven micrograms per milliliter about 8 fifty percent of the patients will be conscious and fifty 9 percent will be unconscious. 10 And as the concentration increases, the 11 probability of unconsciousness also increases, so that at 12 twenty micrograms per mill, again, we have a probability of 13 consciousness of only about 0.02 percent. 14 Q And to kind of -- I know we've changed measure -- 15 or systems of measurement here, but to get a -- to get this, 16 the fifty percent probability of consciousness, I believe 17 you said how many micrograms per milliliter would that take? 18 A Seven. 19 Q How much sodium thiopental would have to be 20 introduced or injected into a person to get a concentration 21 of seven micrograms per milliliter? 22 A Well, that depends on how long one waits. You 23 know, one could achieve for a short period of time a 24 concentration of seven with as little as one hundred and 25 fifty to two hundred milligrams in the average person, but Owen & Associates (352) 624-2258 _

496 1 they would not remain asleep for very long. 2 Q That was one hundred and fifty to two hundred 3 milligrams? 4 A Correct. 5 Q Okay. Now, doctor, let me ask you to turn to 6 State's Exhibit 5, if you would, sir. 7 A Okay. 8 Q And explain for us, if you would, State's Exhibit 9 5 and what it depicts. 10 A Here the model is exactly the same as in Exhibit 11 3, except that the X Axis has been carried out to two 12 hundred minutes, or little bit beyond three hours. 13 And here, again, we see that the thiopental 14 concentration of the blood decreases as a function of time. 15 And at two hundred minutes the thiopental concentration is 16 predicted to be 13.4 micrograms per milliliter, which 17 corresponds to a probability of consciousness of about 0.6 18 percent. 19 Q And at thirty minutes the probability of 20 consciousness is what, sir? 21 A .000029 percent. 22 Q And this, again, like Exhibit 3, is assuming an 23 eighty kilogram man and a five gram dose of thiopental 24 sodium administered over two and a half minutes? 25 A Yes. Owen & Associates (352) 624-2258 _

497 1 Q Thank you, Dr. Dershwitz. Let me collect the 2 exhibits before I forget and get in trouble with the clerk, 3 if you'll excuse me. 4 Now, Dr. Dershwitz, I'm assuming that thiopental 5 sodium is normally injected intravenously into a person when 6 it's used by an anesthesiologist; is that correct? 7 A Yes. 8 Q If sodium thiopental is injected into an 9 individual subcutaneously instead of intravenously what 10 would be the effect of it? 11 A Well, the onset of the pharmacological effect 12 would be very delayed, and it would also hurt very much. 13 Q Would -- why would it hurt? 14 A Well, thiopental as used clinically is a solution 15 at a pH between ten and eleven, and normal physiologic pH is 16 7.4, so when one injects such a basic solution 17 subcutaneously it will burn a lot. A solution of pH eleven 18 is well in the direction of the sort of solution that 19 lye-based drain cleaners would be. 20 Q Would it be reasonable in your experience to 21 expect someone to complain if thiopental sodium was being 22 injected into them subcutaneously? 23 MR. DUPREE: Objection. 24 THE COURT: Overruled. You may answer. 25 THE WITNESS: That's my clinical experience Owen & Associates (352) 624-2258 _

498 1 when I've given it to patients with a 2 malfunctioning intravenous catheter. 3 BY MR. NUNNELLEY: 4 Q How often in a hospital setting does one find a 5 malfunctioning intravenous catheter, doctor? 6 A It typically depends on who put it in and how long 7 it's remained in place. 8 Q Would you characterize it -- I'm probably asking 9 this as a lawyer, it may not be in good medical terms -- is 10 it a rel -- is it a common or an uncommon thing for an IV to 11 malfunction in a hospital setting? 12 A Well, I'm not sure what the definition of common 13 is, but many patients require IVs to be replaced 14 intermittently because of, you know, malfunction if the IV 15 needs to stay in place for many days. 16 Q Are there some drugs that are used in the practice 17 of anesthesiology that are uncomfortable to patients even 18 if -- when they are injected intravenously? 19 A Yes. The most commonly used intravenous 20 anesthetic today is called propofol, and it burns a lot in 21 some people even when it's put into a properly functioning 22 IV. 23 Q Do these people typically complain about the 24 effect of it? 25 A Many parents complain as they're falling asleep. Owen & Associates (352) 624-2258 _

499 1 And a few patients will scream at the top of their lungs as 2 they're falling asleep. 3 Q And going back, if we could, to thiopental sodium 4 going -- being injected subcutaneously. Is it fair to say 5 that the loss of consciousness would be slower? 6 A Yes. 7 Q Is thiopental sodium a fat soluble -- a lipid 8 soluble drug, or is it something of some other sort of 9 chemical makeup? 10 A Well, in the bottle, or in the syringe, at pH ten 11 to eleven it's very water soluble. But as soon as it come 12 into contact with biological tissue, it is buffered to the 13 biological tissue's pH of 7.4 and then it becomes highly 14 lipid soluble. 15 Q Does that mean it absorbs rapidly? 16 A It absorbs more rapidly than medications that are 17 not lipid soluble, but it's still relatively slow compared 18 to the intravenous administration route. 19 Q Okay. Is Pavulon also a lipid soluble drug? 20 A It is not. And that is independent of pH 21 Q In putting this -- putting this discussion in the 22 context of an execution carried out by lethal injection, if 23 we assume that thiopental sodium is injected subcutaneously 24 into the inmate, that the IV line is properly flushed with 25 saline, and then pancuronium bromide is injected through Owen & Associates (352) 624-2258 _

500 1 that IV line subcutaneously, do you have a judgment in your 2 professional opinion as to which one of those two drugs 3 would be absorbed the more rapidly by the individual? 4 A The thiopental. 5 Q Doctor, I'm asking a question that probably 6 exhibits a keen sense of the obvious, but if a person who is 7 receiving anesthetic -- an anesthetic drug -- let me back 8 up. I didn't ask that very well. 9 In the context of an execution in Florida, and we 10 know what -- you know what the three drugs are, if the 11 inmate is reported to be moving, perhaps speaking, 12 breathing, licking his lips, and turning his head, would 13 these actions be consistent or inconsistent with that inmate 14 having been paralyzed by pancuronium bromide? 15 A Well, if the inmate were completely paralyzed they 16 would be unable to move. So if the inmate is exhibiting 17 motor movements, than that person could not be completely 18 paralyzed. 19 Q What happens with thiopental sodium after the 20 person dies? 21 A The blood concentration continues to decline 22 rapidly in a similar fashion as shown in those graphs that I 23 drew and which you previously displayed. 24 Q Is there a technical term for what is going on 25 when the pental -- thiopental is dissolving or distributing? Owen & Associates (352) 624-2258 _

501 1 MR. DUPREE: Again, your Honor, I am going to 2 object. This is beyond the scope of him being an 3 anesthesiologist, and that's what they qualified 4 him as. 5 MR. NUNNELLEY: He was qualified as a 6 pharmacologist, too, I thought. 7 THE COURT: Overrule the objection. You may 8 answer. 9 THE WITNESS: The process is called post 10 mortem redistribution. 11 BY MR. NUNNELLEY: 12 Q Is there a great deal of research in the 13 context -- is there a great deal of research into post 14 mortem redistribution of thiopental sodium? 15 A There's actually no published research on that 16 topic at all. 17 Q Are you aware of any research that has been done 18 into post mortem redistribution of thiopental sodium? 19 A Yes. 20 Q Can you describe that research for us, sir? 21 A In several states Medical Examiners have drawn and 22 compared blood samples from executed inmates. The first 23 blood sample drawn within a few minutes of the pronouncement 24 of death, and the second blood sample drawn either hours 25 later, or the next day at the time of autopsy. And the -- Owen & Associates (352) 624-2258 _

502 1 MR. DUPREE: Your Honor, I have an objection 2 on hearsay grounds. I have no idea where this is 3 coming from. There is no predicate for this at 4 all. 5 MR. NUNNELLEY: It's part of his opinion, 6 your Honor, he can testify to it. 7 MR. DUPREE: It's not even a peer -- it's not 8 even a peer reviewed argument. This is something 9 he heard from somewhere. 10 MR. NUNNELLEY: I don't think we need to be 11 talking about peer reviewed articles, your Honor. 12 THE COURT: Overrule the objection. You may 13 answer. 14 THE WITNESS: And these blood samples were 15 then submitted for toxicological analysis. And 16 the lab reports, many of them, were supplied to me 17 for review. 18 And in each of these cases the thiopental 19 concentration that was obtained from the blood 20 drawn immediately after death was high and 21 consistent with a miniscule probability of 22 consciousness, whereas in all cases the blood 23 sample drawn hours later was very low and, in 24 fact, in many cases was consistent with a high 25 probability of consciousness. Owen & Associates (352) 624-2258 _

503 1 BY MR. NUNNELLEY: 2 Q Based upon -- based upon this do you have an 3 opinion as to what, if any, conclusions can be drawn based 4 upon a level of thiopental sodium in an executed inmate's 5 blood if that blood was not drawn immediately after the 6 inmate died? 7 MR. DUPREE: Objection, your Honor. Again, 8 predicate, beyond the scope of his expertise. 9 THE COURT: Overruled. You may answer. 10 THE WITNESS: If the blood concentration is 11 high, it would just mean that it was even much 12 higher at the time of death. If the concentration 13 is low, it is impossible to draw any meaningful 14 conclusions from it. 15 BY MR. NUNNELLEY: 16 Q Are you familiar with an article that was 17 published in the medical journal the Lancet which reported 18 very low levels of sodium thiopental in the blood of various 19 executed inmates? 20 A Yes. 21 Q Have you read that article? 22 A Yes. 23 Q Are you familiar with the research techniques that 24 were employed by the authors of that article? 25 A Yes. They reviewed post mortem toxicological Owen & Associates (352) 624-2258 _

504 1 results just as I have. 2 Q Do you have an opinion based upon your training, 3 experience, education, and expertise as to whether or not 4 the conclusions set out in that Lancet article can be 5 supported? 6 A The authors concluded that a very, very high 7 fraction of inmates were probably conscious during their 8 executions. However, based upon the significant delay 9 between the pronouncement of death and cessation of 10 circulation and the obtaining of the blood samples, it would 11 be inappropriate in most of those cases to extrapolate 12 backwards and try to use the post mortem blood concentration 13 as a method of determining what the concentration was just 14 prior to death. 15 Q And, doctor, you have testified your -- in 16 addition to being an anesthesiologist your degree -- you 17 also have a Ph.D. in pharmacology? 18 A Yes. 19 Q Have you also worked in or been exposed to 20 toxicological analysis? 21 A Yes, from many different points of view. 22 Q Describe for Judge Angel, if you would, your 23 experience in the field of toxicology? 24 A First of all, toxicology is a branch of 25 pharmacology. And my actual Ph.D. dissertation involved the Owen & Associates (352) 624-2258 _

505 1 toxicological effects of a particular medication. For most 2 of my research career I have been primarily interested in 3 the pharmacokinetic and pharmacodynamic effects of 4 medications. 5 And what that means is, the pharmacokinetic 6 effects is the time course of the medication as measured and 7 depicted on those graphs that you saw already. 8 Pharmacodynamic analysis predicts the particular 9 pharmacological effect as a function of the blood 10 concentration. 11 Now, most drugs have both desirable and 12 undesirable effects. And so as a pharmacokineticist, when I 13 have done these studies, we have been able to draw models in 14 which we are able to predict as a function of the blood 15 concentration both the desirable, that is the therapeutic 16 effects, as well as the undesirable, that is the toxic 17 effects of a number of different medications. 18 MR. NUNNELLEY: Your Honor, at this time I 19 would offer Dr. Dershwitz also as an expert in the 20 field toxicology. 21 THE COURT: Any questions? 22 MR. DUPREE: No questions, your Honor. 23 THE COURT: So ordered. 24 BY MR. NUNNELLEY: 25 Q Doctor, are you familiar with a subsequent article Owen & Associates (352) 624-2258 _

506 1 subsequent to the Lancet article that was by the same 2 authors and purported to draw roughly the same conclusions? 3 A Yes. Although, the authors extended their 4 analysis beyond just looking at post mortem blood 5 concentrations. 6 Q And this article appeared in an online journal, I 7 guess, did it not? 8 A Yes, the Public Library Of Science. 9 Q Is that a peer-reviewed entity? 10 A No. 11 Q Does the Public Library Of Science article suffer 12 from the same deficiencies as does the Lancet article? 13 A The authors refer to their conclusions that they 14 expressed in the Lancet article. And surprisingly, in 15 addition, they did not offer any discussion based upon, for 16 example, the letters to the editor that were written to the 17 Lancet that questioned some of their, you know, conclusions. 18 There's two other areas in the PLOS article in 19 which I believe the story that they were attempting to tell 20 is incomplete. 21 Q How is the story incomplete, sir? 22 A In one case, referencing a Dutch study, and 23 keeping in mind that in the Netherlands euthanasia is legal 24 and physicians may legally assist in euthanasia, they quoted 25 a Dutch study that said that thiopental by itself even in Owen & Associates (352) 624-2258 _

507 1 high doses is not lethal. 2 And I think it's silly for the Dutch authors to 3 have made such a conclusion because the largest dose from 4 the Dutch study was only two grams of thiopental. And I can 5 certainly imagine that in some subset of the population two 6 grams is not necessarily lethal. 7 But for the Dutch authors to contend, and for 8 these American authors to repeat; that thiopental at the 9 highest dose is not lethal is completely inconsistent with 10 what we know about pharmacology. 11 The other area that I believe their discussion was 12 incomplete is that they reviewed some lethal injection 13 records in which it appeared that the potassium chloride did 14 not cause the cessation of electrical activity in the heart 15 as rapidly as would be expected. And they used that as an 16 argument that perhaps potassium chloride is not effective in 17 stopping the heart. 18 There is a plausible explanation that may have 19 applied in some of these cases that at least should have 20 been discussed, it should be raised as a possibility. And 21 that is that with the very large doses of thiopental that 22 are used in some states the circulation can slow to such a 23 trickle that the pancuronium and the potassium chloride that 24 are injected sub -- subsequently might literally remain in 25 the arm. Owen & Associates (352) 624-2258 _

508 1 And I believe that there are very good reports, or 2 raw data, from some California executions in which the 3 potassium chloride appeared not to work. And I believe that 4 a plausible explanation is because California also uses five 5 thousand milligrams of thiopental that subsequently 6 administered drugs literally did not circulate. 7 And I'm not saying that that is always the answer 8 in all cases, but it is a plausible explanation that should 9 have been -- 10 MR. DUPREE: Objection, your Honor. Not -- 11 is this just beyond the degree of real medical 12 certainty, that's a plausible explanation? 13 THE COURT: Overruled. You may answer. 14 THE WITNESS: I raise this just that in a 15 scientific article authors have a responsibility 16 to discuss all possible explanations for their 17 data, those that are likely as well as those that 18 may be unlikely. And so this is a plausible 19 explanation that should have been considered by 20 the authors. 21 BY MR. NUNNELLEY: 22 Q And the fact that they did not consider that 23 explanation is a deficiency in that article; is that what 24 you're saying? 25 A Yes. Owen & Associates (352) 624-2258 _

509 1 Q Doctor, let me ask you this, do you have an 2 opinion to a reasonable degree of medical certainly as to 3 what the effect of the administration of five grams of 4 thiopental sodium followed by one hundred milligrams of 5 Pavulon, followed by two hundred and forty milliequivalents 6 of potassium chloride would be on a human being? 7 A Yes. 8 Q What is it, sir? 9 A It's lethal. 10 Q If that series of drugs in those doses is 11 administered to a human being in the proper sequence through 12 a proper -- through a properly functioning IV line will the 13 individual have any perception of pain? 14 A No. Once the thiopental is administered nothing 15 that is done to the inmate after that is perceptible by the 16 inmate. 17 Q What is the most common, in your experience, IV 18 mal -- Intravenous Line malfunction in a hospital setting? 19 A Well, actually, the most common malfunction is 20 when the IV is accidentally or deliberately ripped out by 21 the patient. 22 Q Okay. And the second most? 23 A The second most common malfunction is when the IV 24 for whatever reason or by whatever mechanism, is relocated 25 from the tip of the catheter to -- from being in a vein to Owen & Associates (352) 624-2258 _

510 1 outside of the vein. 2 Q And if it's outside the vein that would be a 3 subcutaneous delivery of the drugs, would it not? 4 A Yes, it would be in a subcutaneous space. 5 Q And in the hospital setting how do you, as a 6 medical professional, go about making sure that an IV is 7 functioning properly, placed properly, and working like it 8 is supposed to be working? 9 A Well, since a large fraction of the IVs that we 10 take into the operating room are not placed by me or one of 11 my colleagues we typically do check them. And we typically 12 employ a number of tests. 13 We would open the IV clamp wide and see how 14 rapidly the fluid would flow. It should typically flow more 15 quickly if the bag is raised by, you know, making a greater 16 effect of gravity. 17 We would also look at the IV site to make sure 18 that there's no accumulation of fluid that's palpable at the 19 IV site. 20 Q And shifting back to the context of an execution 21 in Florida under the May 9, 2007 protocols, do there -- does 22 there appear to be an adequate or appropriate assessment of 23 the inmate's level of consciousness after the thiopental 24 sodium is administered and before the Pavulon and potassium 25 chloride are administered? Owen & Associates (352) 624-2258 _

511 1 A Well, my understanding is it's not written in the 2 protocol. My understanding is that the inmate would be 3 stimulated by -- 4 MR. DUPREE: Objection, hearsay. If it's not 5 in the protocol it's hearsay, your Honor. 6 MR. NUNNELLEY: He's an expert, your Honor. 7 MR. DUPREE: Your Honor, it's not -- it's not 8 in the protocol, he just said that. It's got to 9 be coming from somewhere else. It's got to be 10 hearsay. 11 THE COURT: Overrule the objection. You may 12 answer. 13 THE WITNESS: My understanding is that the 14 inmate will be tested for presence of reflexes, 15 like the lash reflex. A conscious person, if you 16 touch their eyelashes very lightly, will blink; an 17 unconscious person typically will not. 18 That's probably the most common first 19 assessment that we use in the operating room to 20 determine when a -- when a patient might have 21 crossed the line from being conscious to 22 unconscious. 23 I understand, also, that the -- that the 24 inmate will have his name spoken and -- and be 25 told to do something like, open your eyes, or Owen & Associates (352) 624-2258 _

512 1 something like that. 2 BY MR. NUNNELLEY: 3 Q You also, I believe, teach Basic Life Support, do 4 you not, or advanced life support? 5 A I actually don't teach it, but I am certified in 6 BLS and I have taken the course many times. 7 Q And just for the record, BLS is Basic Life 8 Support, correct? 9 A Yes. 10 Q And Basic Life Support is CPR, right? 11 A And other things, but that's the typical thing 12 that the Red Cross or the Heart Association teaches 13 nonprofessional people who may be in a position to be first 14 responders. 15 Q And just for the record, BLS or Basic Life Support 16 is intended for persons other than medical professionals, 17 isn't it? 18 A It's intended for everybody, actually. 19 Q Okay. And in the context of Basic Life Support 20 are lay people taught how to undertake to determine whether 21 or not someone is unconscious? 22 A Yes. The first step when one activates BLS, and 23 the way they teach it in the course is the mannequin is 24 lying on a table. The student is taught to run up to the 25 mannequin, shake her, and say, Annie, Annie, are you okay? Owen & Associates (352) 624-2258 _

513 1 If Annie doesn't respond, as she typically won't, 2 then Basic Life Support will be started. 3 Q And these are steps that are within the capability 4 of a lay person? 5 A Yes. 6 Q Doctor, I'm showing you what is marked State's 7 Exhibit 6 for identification and ask you if you would review 8 the document, sir? 9 A Yes. 10 Q Are you familiar with that document? 11 A Yes. 12 Q What do you know that document to be, or what do 13 you recognize that document to be? 14 A Well, the first page is a press release that was 15 sent out by the American Veterinary Medical Association. 16 And the remaining pages is the AVMA's 2000 report on their 17 panel on euthanasia of animals. 18 Q And what is the press -- 19 MR. NUNNELLEY: Well, I want to offer that 20 document into evidence at this time, your Honor. 21 I believe it's been agreed to, anyway. 22 MS. KEFFER: I don't think we agreed. We 23 both listed it, so no objection. 24 THE COURT: Admitted. 25 (Thereupon, the above-referred-to item was Owen & Associates (352) 624-2258 _

514 1 marked for identification as State's Exhibit 2 Number 6 and was received in evidence.) 3 BY MR. NUNNELLEY: 4 Q And you're familiar with the press release issued 5 by the American Medical -- American Veterinary Medical 6 Association? 7 A Yes. 8 Q What does that press release concern? 9 A The AVMA issued a press release that basically 10 said, and I'm paraphrasing this, that the -- their 2000 11 report of the AVMA panel on euthanasia should not be applied 12 to the injection of humans -- the execution of humans by 13 lethal injection. 14 Q Are you familiar with the 2000 AVMA report on 15 euthanasia? 16 A I read it. I certainly haven't memorized it. 17 It's quite long. 18 Q As a medical professional do you have an opinion 19 as to whether that press release and the AVMA's statement 20 about the application of its report to lethal injection in 21 humans should be respected? 22 MR. DUPREE: I object, your Honor, to 23 relevance. 24 MR. NUNNELLEY: It will become relevant, I am 25 going to tie it up, your Honor. Owen & Associates (352) 624-2258 _

515 1 THE COURT: Subject to tying it up, 2 overruled. 3 THE WITNESS: Well, I think that the lengthy 4 report that the AVMA issued in 2000 should only be 5 considered applying to -- or should not be 6 considered applying to lethal injection because 7 they issued a press release specifically saying 8 so. 9 MR. NUNNELLEY: Okay. May I approach, your 10 Honor? Give it back to me and I'll return this 11 one to the clerk before she comes after me again. 12 MR. DUPREE: I don't know if that was tying 13 it up, your Honor, so I still object as to 14 relevance. 15 MR. NUNNELLEY: Your Honor, if I might -- if 16 I might be heard, it will get tied up with a 17 subsequent witness that I expect the defense to be 18 calling. 19 THE COURT: Okay. Go ahead. 20 BY MR. NUNNELLEY: 21 Q Doctor, do medical professionals use any kind of a 22 scale to rate perceived pain? 23 A Yes. Typically adults are asked to -- to grade 24 their pain, since pain is not a vital sign, on a zero to ten 25 scale. And children are given a series of faces that range Owen & Associates (352) 624-2258 _

516 1 from a happy face to a frowning face to attempt to gauge 2 their degree of pain. 3 Q Do you have an opinion as a medical professional 4 where on the pain scale a subcutaneous injection of 5 thiopental would fall? 6 A Based on my experience of giving thiopental to 7 people with malfunctioning IVs, it's in some persons 8 significantly painful. And although I can't necessarily put 9 myself in their -- in their place, based upon how loudly 10 some of them scream, some of them experience significant 11 pain, perhaps seven, perhaps eight. 12 Q And applying the same scale to Propofol, which is 13 a drug that you use frequently in your practice now, where 14 would it fall? 15 A Propofol is probably even a little more painful. 16 Based on my experience, a majority of patients complain of 17 some pain as they're falling asleep. And, as I said, a 18 small subset literally scream at the top of their lungs. 19 Q But you use Propofol anyway? 20 A Yes, because all other things considered it is 21 still the best intravenous anesthetic we have. 22 MR. NUNNELLEY: Judge, if I could have just a 23 moment to sort out what exhibit I'm hunting for. 24 THE COURT: Sure. Let's take a short break, 25 about five minutes. Owen & Associates (352) 624-2258 _

517 1 (Thereupon, a short recess was taken.) 2 THE COURT: Okay. Resuming our hearing. 3 Proceed with the last witness. 4 MR. NUNNELLEY: Thank you, your Honor. 5 Judge, I have just a very few more questions for 6 this witness. I'm not sure that we got it clear 7 on the record. I had offered Dr. Dershwitz as an 8 expert in the field of anesthesiology, 9 pharmacology and toxicology. I'm not sure we got 10 an acceptance of him as an expert in 11 anesthesiology and pharmacology. 12 THE COURT: Yes. 13 MR. NUNNELLEY: Okay. 14 BY MR. NUNNELLEY: 15 Q Now, doctor, let me ask you this. Would it be 16 correct to say that there are various techniques that a lay 17 person can be taught to employ in assessing whether or not a 18 person is conscious or unconscious? 19 A Yes. 20 Q And let me ask you this, sir. Is -- to you as a 21 medical professional, is depth of anesthesia the same thing 22 as the absence of consciousness? 23 A No. 24 Q Okay. What's the difference? 25 A Depth of anesthesia is something that we do often Owen & Associates (352) 624-2258 _

518 1 in the operating room, and in my opinion that takes an 2 expert, an anesthesiologist, a nurse anesthetist, or someone 3 with equivalent training to determine based upon physical 4 examination and various objective signs, like vital signs, 5 how deeply anesthetized a particular person is. 6 Whereas consciousness in this context is an all or 7 none thing, like pregnancy. You are either conscious or 8 unconscious. And lay people can be readily trained to 9 determine if somebody is unconscious. 10 MR. NUNNELLEY: If I might approach, your 11 Honor. 12 BY MR. NUNNELLEY: 13 Q Dr. Dershwitz, I'm showing you a box which is 14 labeled as State's Exhibit 1. If you would open it. The 15 box has already been cut open, it's not taped any longer. 16 But if you would open that box and look through it and tell 17 me when you're through, sir. 18 A Okay. 19 Q Do those -- do the items contained therein appear 20 to be standard medical equipment -- 21 A Yes. 22 Q -- or apparatus? Which is the proper term? 23 A Well, these are the typical medical supplies that 24 someone might use to start an IV and give some medications 25 intravenously. Owen & Associates (352) 624-2258 _

519 1 Q Okay. Let's go through and identify the various 2 items in there, if we could, sir. It makes no difference 3 where you start, whatever is convenient for you. 4 A Okay. The first item one is a liter bag of normal 5 saline. 6 Q One liter would be one thousand milliliters? 7 A Milliliters, or approximately a quart. 8 Q Okay. 9 A The next would be an IV tubing set. And I'm 10 looking for the length. It doesn't say. But one end of 11 this would be inserted into a hole in the bag, and the other 12 end of this would then be attached to an IV catheter that 13 was previously injected -- inserted into the patient. 14 Q And doctor, let me stop you right there. Does -- 15 you called this the IV set, correct? 16 A Or IV tubing. 17 Q IV tubing. Does the IV tubing have a priming 18 volume denoted on it? 19 A It doesn't jump out at me. It might be listed on 20 it somewhere. But it's probably somewhere in the vicinity 21 of ten milliliters, give or take a little bit. 22 Q And just so we're clear on what we're talking 23 about here, the priming volume of that -- 24 A I just found it. Excuse me. It's seventeen 25 milliliters. Owen & Associates (352) 624-2258 _

520 1 Q That would be how much fluid is contained within 2 the tube from top to bottom? 3 A Yes, from one end to the other. 4 Q Okay. Okay. Go ahead, if you would, with the 5 rest of the items in there, sir. 6 A Okay. Here we have a twenty gauge intravenous 7 catheter that would be used to be inserted into a vein and 8 would be connected to the tubing at the other end. One end 9 is connected to the bag, the other end would be connected to 10 this. 11 We have a couple of different sizes of syringes, a 12 twenty milliliter syringe and a sixty milliliter syringe. 13 And a blunt tip needle that would be screwed on the end of 14 the syringe and then subsequently inserted through a septum 15 in the tubing that would cause the person to be able to 16 inject the contents of the syringe through the IV tubing and 17 into the person. 18 And there's also two extension sets of thirty 19 inches in length that could be used to make the IV tubing 20 longer. This tubing says it's one hundred and six inches, 21 so if one needed to increase the length one could add as 22 many of these thirty inch extension sets as one needed. 23 Q Okay. Let's go back to the syringes, if we could, 24 sir. There are two sizes in there, I believe; is that -- is 25 that right? Owen & Associates (352) 624-2258 _

521 1 A There's a twenty milliliter syringe and a sixty 2 milliliter syringe. 3 Q Okay. And doctor -- okay. Let me ask you this, 4 close to the last question. How long would it take to 5 inject the contents of that sixty CC syringe into an IV port 6 that was properly running, or improperly running even? 7 A Well, part of it depends upon the overall 8 resistance of the tubing as well as the size of the IV 9 catheter itself. But in my experience a sixty milliliter 10 syringe should be able to be emptied at about one to two 11 milliliters per second -- 12 Q And -- 13 A -- so someplace between thirty and sixty seconds. 14 MR. NUNNELLEY: Okay. If I could have just a 15 moment, your Honor. I pass the witness, your 16 Honor. 17 MR. HOOKER: Ken, do that right there. 18 MR. NUNNELLEY: I did all that. 19 MR. HOOKER: Okay. 20 THE COURT: Tender the witness. 21 MR. DUPREE: Thank you, your Honor. 22 CROSS EXAMINATION 23 BY MR. DUPREE: 24 Q Good afternoon, doctor. 25 A Good afternoon. Owen & Associates (352) 624-2258 _

522 1 Q Sir, how did you first become involved in this 2 case? 3 A At sometime last year Mr. Nunnelley called me. 4 Q And do you know -- do you recall when last year he 5 called you? 6 A My estimate would be sometime in the fall, but I 7 couldn't be any more specific than that. 8 Q And he called you -- he -- Mr. Nunnelley -- 9 Nunnelley personally called you? 10 A I believe so. 11 Q And do you recall what it was he wanted you to do? 12 A I don't have any specific recollection of our 13 first conversation, but I would assume that it had something 14 to do with being an expert in a case. 15 Q Did he tell you what case? 16 A Actually, I didn't learn the name of the case 17 until just a few days ago. 18 Q And what was that? 19 A Lightbourne. 20 Q And you said the fall, could you narrow it down 21 any more than that? 22 A No, I can't. 23 Q Is there any documentation that you would have 24 submitted to the State of Florida -- I'm assuming you're 25 being paid today for your testimony? Owen & Associates (352) 624-2258 _

523 1 A Yes. 2 Q And do you submit bills to the State of Florida? 3 A I will, I have not yet. 4 Q Have you done anything in terms of documenting 5 your time? 6 A I probably wrote down on some scraps of paper some 7 extended conversations, the lengths of them. But the first 8 conversation I had with him was so short that I probably 9 didn't record it. 10 Q Did Mr. Nunnelley send you any material for you to 11 review at that point in time? 12 A At that point in time, no. 13 Q Did he -- did he subsequently send you some 14 material? 15 A There are four documents that I received through 16 you, all of which have been admitted as exhibits here. The 17 current and previous execution protocols. The final report 18 from the Governor's Commission on Lethal Injection. And the 19 Department Of Corrections reply. So that's the total of 20 four documents. 21 Q Okay. Do you know when he sent you that material? 22 A It's all been within the last few weeks. 23 Q Prior to the last few weeks had you received any 24 documentation whatsoever from the State of Florida? 25 A No. Owen & Associates (352) 624-2258 _

524 1 Q You had not received the August 16th protocol, 2 August 16th, 2006? 3 A No. 4 Q Have you had any contact with any Department Of 5 Corrections personnel in this case? 6 A No. 7 Q Not at all? 8 A I guess it depends on your definition of 9 Department Of Corrections. I've talked to a few lawyers, 10 and I'm not sure who works for who. 11 Q Okay. Well, let's -- let's start with that. Who 12 have you talked to? 13 A Primarily with Mr. Nunnelley. When I testified 14 before the Governor's Commission I believe it was Ms. 15 Snurkowski who first contacted me about that, and so we had 16 some conversations pertaining to my testimony before the 17 Governor's Commission. And -- 18 Q And let me stop you right there, sir. I'm sorry. 19 What did -- what conversations did you have with Ms. 20 Snurkowski with regard to the lethal injection Commission? 21 A Scheduling a time to be able to testify by phone 22 since I was not able to travel to Florida during that time 23 that the committee was meeting. 24 Q Did she provide you with any reports, any 25 documentation? Owen & Associates (352) 624-2258 _

525 1 A No. 2 Q Did you ask for any? 3 A No. 4 Q Did she tell you what the substance of your 5 conversation -- I'm sorry. Did she tell you what the 6 substance of your testimony in front of the lethal injection 7 Commission would entail? 8 A She told me that it would primarily involve trying 9 to figure out what, if anything, went wrong with the 10 execution of Angel Diaz. 11 Q Did you ask to see any autopsy reports at that 12 time? 13 A No. 14 Q Did you speak with the toxicologist or the Medical 15 Examiner in that case? 16 A No. 17 Q Have you ever talked to the toxicologist or 18 Medical Examiner in that case? 19 A No. 20 Q Have you reviewed any of their testimony given 21 before the lethal injection Commission in preparation for 22 your testimony here today? 23 A No. 24 Q Have you had any -- other than the conversation 25 you said you had with Ms. Snurkowski with regard to the Owen & Associates (352) 624-2258 _

526 1 lethal injection Commission, have you had any other contact 2 with her since that time? 3 A No. 4 Q Did you have any contact with her within the last 5 day or two? 6 A We briefly spoke over lunch today. 7 Q And you recognize Ms. Snurkowski as the person 8 just behind me to my left; is that correct? 9 A Yes. 10 Q And Mr. Nunnelley would be right next to her on 11 her right; is that correct? 12 A Yes. 13 Q How about Mr. Hooker, have you had any 14 conversations with him? 15 A Other than making small talk today to introduce 16 each other, no. 17 MR. HOOKER: Well, I should say you don't 18 know it, but I'm the person that called you about 19 your plane flight the other day. I beeped you and 20 you called me back. We were talking about how you 21 were going to get from Orlando to Ocala. You 22 decided to rent a car. And that was me. 23 THE WITNESS: Okay. 24 BY MR. DUPREE: 25 Q So you had that conversation with Mr. Hooker? Owen & Associates (352) 624-2258 _

527 1 A Yes. 2 Q Okay. Going to the Department Of Corrections 3 personnel, have you -- have you ever talked to Warden 4 Bryant? 5 A No. 6 Q An Assistant Warden by the name of Dixon? 7 A No. 8 Q Have you talked to anybody that was involved in 9 the execution of Angel Diaz? 10 A No. 11 Q Have you talked to any of the execution team 12 members? 13 A No. 14 Q Have you talked to any of the medically -- 15 medically qualified personnel that were there and present 16 for Angel Diaz? 17 A No. 18 Q Have you reviewed any reports or any statements 19 that were given by any of those members of the Diaz 20 execution team? 21 A Only as it was incorporated in the Governor's 22 Commission report. 23 Q Did you read -- review the Department Of 24 Corrections Task Force report that was released on December 25 20th of 2006? Owen & Associates (352) 624-2258 _

528 1 A Is that the reply to the Governor's Commission? 2 Q No, sir. 3 A Then, no, I did not. 4 Q But you did -- you did review the reply to the 5 Department Of Corrections? 6 A Yes. 7 Q Sir, did you -- you said you have not had any 8 contact with anybody from the Department Of Corrections in 9 terms of being either the Warden or the Assistant Warden. 10 Have you spoken with any attorneys for the Department Of 11 Corrections? 12 A Again, I'm not sure which of the attorneys that 13 I've spoken with who works for who, but the three attorneys 14 that have been named are the only ones with whom I've spoken 15 to. 16 Q And that would be Ms. Snurkowski, Mr. Nunnelley, 17 and what's the third person, and Mr. Hooker? 18 A And -- 19 MS. DAVIS: Ms. Davis. I went and got him an 20 brought him to the courthouse. That's the only 21 contact we had, and then that was it. So I'm also 22 an attorney. 23 BY MR. DUPREE: 24 Q How about Mr. Changus, Max Changus; have you 25 spoken with him in the Department Of Corrections? Owen & Associates (352) 624-2258 _

529 1 A No. 2 Q Did you -- have you talked to the Department Of 3 Corrections secretary, Mr. McDonough? 4 A No. 5 Q I'm interested, sir. You said on direct 6 examination that you had had -- even though it's not in the 7 protocol -- I believe your exact language was -- even though 8 it wasn't in the protocol you were aware of what the 9 Department Of Corrections personnel were going to do to make 10 sure that a person who was subject to execution was going 11 to -- how they were going to determine consciousness in that 12 person? 13 A Yes. 14 Q Who did you have that conversation with? 15 A Mr. Nunnelley. 16 Q Mr. Nunnelley told you that? 17 A Yes. 18 Q When did he tell you that? 19 A Yesterday or today. 20 Q Do you know where Mr. Nunnelley got that 21 information from? 22 A No. 23 Q And I believe you testified on direct, sir, that 24 that is not listed in the protocol. There is nothing in 25 there that tells you exactly how a person is going to be Owen & Associates (352) 624-2258 _

530 1 determined to be conscious at the time that he's -- that the 2 sodium thiopental is given; is that correct? 3 A Yeah, the details are not there. 4 Q Okay. Now, you have been involved in the 5 litigation of these kind of issues around the country for 6 the last couple of years; is that correct? 7 A Yes. I think I first participated in a case in 8 the fall of 2003. 9 Q And since that time how many times do you think 10 you've testified in court? 11 A I think this is the fifth. 12 Q And have you always testified on behalf of the 13 states? 14 A Yes, I have been called by the other side and 15 after they've spoken with me they declined to introduce me 16 as a witness. 17 Q Who declined -- who declined to do that, sir? 18 A There -- I don't remember the name off the top of 19 my head, but I was contacted by Public Defender's Offices in 20 at least two states; Oklahoma comes to mind, and I can't 21 remember the other one. And I had lengthy conversations 22 with them. And they ultimately decided not to call me as a 23 witness. 24 Q So when you've testified in court you've only 25 testified on behalf of the State? Owen & Associates (352) 624-2258 _

531 1 MR. NUNNELLEY: Asked and answered. I 2 object. 3 MR. DUPREE: I'll move on, Judge. 4 THE COURT: Okay. 5 BY MR. DUPREE: 6 Q How about affidavits, have you provided affidavits 7 as part of your working with the states? 8 A Yes, I've probably provided affidavits in another 9 six to eight states approximately. 10 Q How many different states would you say that 11 you've given advice to? 12 A Well, I don't give advice, but I have given either 13 court testimony, or testimony by video, or opinions by 14 affidavit, I think in a total of ten or eleven states. 15 Q And you charge the states when you testify? 16 A Yes. 17 Q And how much do you charge? 18 A For testimony I charge three thousand dollars per 19 day. 20 Q And how about an hourly rate? 21 A When I'm reviewing materials or doing calculations 22 I charge four hundred dollars per hour. 23 Q Do you know how much you've charged the State of 24 Florida so far to testify in regards to the Lightbourne 25 matter? Owen & Associates (352) 624-2258 _

532 1 A No, I haven't sent them a bill yet. 2 Q How about the lethal injection Commission, did you 3 charge them? 4 A No. 5 Q Did you ever have any contact with the Governor's 6 Office in this case, any member of the Governor's Office, 7 the Governor, General Counsel for the Governor? 8 A No. 9 Q Either in the governor -- the former Governor's 10 Bush's administration, or in Governor Crist's 11 administration? 12 A No. 13 Q Have you reviewed any videotapes? 14 A No. 15 Q Any audio tapes? 16 A No. 17 Q Have you reviewed any medical records related to 18 Angel Diaz or any other inmate? 19 A No. 20 Q Have you reviewed the autopsy photos of Angel 21 Diaz? 22 A No. 23 Q Have you reviewed the autopsy report? 24 A No. 25 Q Have you reviewed the toxicology report of Angel Owen & Associates (352) 624-2258 _

533 1 Diaz? 2 A No. 3 Q Have you ever been to -- have you ever visited the 4 death row here in Florida? 5 A No. 6 Q Did you have -- when you were going back and forth 7 with the State, have you had any occasions to send any 8 correspondence, either by way of E-mails or by letters? 9 A We have corresponded by E-mail primarily regarding 10 logistic issues of when to schedule a phone call or when to 11 schedule this trip. 12 Q Were you sent any kind of advance report or some 13 sort of questionnaire, interrogatories, on behalf of the 14 State telling you what they intended to talk to you about 15 today? 16 A No. The sum total of everything I received are 17 those four exhibits that I described already. 18 Q And did you have discussions with Mr. Nunnelley 19 and or Ms. Snurkowski with regard to those exhibits? 20 A Yes. Mr. Nunnelley and I have had several 21 telephone conversations. 22 Q And how many times would you say you've spoken 23 with Mr. Nunnelley? 24 A Discussing material issues, maybe three or four 25 times. Owen & Associates (352) 624-2258 _

534 1 Q Did you provide any kind of a report to the State? 2 A No. 3 Q Any kind of written memorandum explaining what 4 your position is? 5 A No. The only thing I submitted to them are the 6 three figures that are sitting to your left. 7 Q And that would be the graphs; is that correct? 8 A Yes. 9 Q Okay. With regards to the graphs the -- what are 10 these graphs based upon? How did you make these 11 calculations? 12 A There are published pharmacokinetic parameters for 13 thiopental and how it behaves in normal healthy humans. And 14 the only real material important variable that one inputs 15 into the equation is the patient's weight. 16 And then based upon a given dose and over how long 17 a period it was administered I can then predict what the 18 average blood concentration would be as a function of time. 19 Q And is that based on whole blood or plasma? 20 A Actually, thiopental is typically measured in 21 whole blood. Although, there are other papers out there 22 where they've used serum or plasma, but I'm typically basing 23 this on whole blood. 24 Q And are you familiar with the term Cp50? 25 A Yes. Owen & Associates (352) 624-2258 _

535 1 Q And could you explain to the Court what that 2 means? 3 A Cp50 represents the concentration of a medication 4 that will cause half of a population to display a particular 5 response. 6 Q And what is the Cp50 of thiopental? 7 A If -- well, first of all, it depends on which 8 response you are asking about. But if you're talking about 9 consciousness -- 10 Q Yes, sir. 11 A -- the Cp50 for thiopental is typically taken at 12 seven micrograms. 13 Q And is that something that you've independently 14 determined? 15 A I have not done the experiments myself, no. I 16 rely on the published work of others. 17 Q And who did you rely on to make that 18 determination? 19 A The paper that I consider to have some of the best 20 data is a paper whose senior author is Pinter Glass, 21 G-l-a-s-s. And it's approximately from the early '90s. 22 Q Does 1992 sound familiar? 23 A It could be. I don't remember the date offhand. 24 Q And Dr. Glass made a determination that the Cp50 25 of thiopental is 7.3; is that correct? Owen & Associates (352) 624-2258 _

536 1 A Yes. 2 Q Are you familiar with another paper by 3 Dr. Stanski? 4 A Dr. Stanski has written many papers. 5 Q With regard to the Cp50 of thiopental? 6 A That applies to more than one paper. Can you be 7 more specific or actually show me the paper? 8 Q Sure. 9 MR. DUPREE: May I have a moment, your Honor? 10 THE COURT: Sure. 11 MR. DUPREE: While they're looking, your 12 Honor, I'll ask another question. 13 THE COURT: Uh-hmm. 14 MR. DUPREE: Oh, sorry. 15 MR. NUNNELLEY: Do you have more than one, 16 counsel? 17 MR. DUPREE: Absolutely. Can I approach, 18 your Honor? 19 MR. NUNNELLEY: Do you have one there with 20 you, Mr. Dupree? 21 MR. DUPREE: I'm sorry? 22 MR. NUNNELLEY: Do you got more than one 23 copy? Because what you left me is about a third 24 of what you took up to the witness stand. 25 MR. DUPREE: Well, I can give you the other Owen & Associates (352) 624-2258 _

537 1 one if you would like. 2 MR. NUNNELLEY: Are they all the same 3 thing -- 4 MR. DUPREE: Yes. 5 MR. NUNNELLEY: -- or is there more than one 6 document? 7 MR. DUPREE: No, it's the same thing. 8 MR. NUNNELLEY: Okay. 9 BY MR. DUPREE: 10 Q Are you familiar with that paper, sir? 11 A I can't tell because I can't read it. I'm trying 12 to read the -- the abstract, and I actually can't, so let 13 me -- give me a few minutes to look through here to see 14 if -- okay. 15 This is one of the many papers that this 16 particular lab group has published on thiopental. In this 17 particular paper this Cp50 that they are measuring has to do 18 with movement, not consciousness. And movement has nothing 19 to do with consciousness. 20 Q And what is the CP -- what is the determination of 21 Cp50 in that paper? 22 A Well, there's -- I believe there are several. Let 23 me thumb through here. 24 Q Of the thiopental? 25 A It ranges from 15 to 80 -- 15 to 79. Owen & Associates (352) 624-2258 _

538 1 Q Okay. 2 A Whereas the patients didn't move at a Cp50 of 15, 3 and it took 80 or 79 for them not to move in response to 4 having a breathing tube put into their trachea, which is 5 generally taken to being the most uncomfortable thing you 6 can do to a patient. 7 Q So they were measuring the levels of pain; is that 8 correct? 9 A No, they're actually measuring movement. Movement 10 does not reflect pain, and this does not reflect 11 consciousness. Movement is different. 12 Q Are you familiar with a textbook by Goodman and 13 Gilman, the Pharmacological Properties of Parenteral 14 Anesthetics? 15 A Yes. 16 MR. DUPREE: Again, may I approach? 17 MR. NUNNELLEY: Do you have something for us 18 to read? Let's -- yeah. Is this my copy or is 19 this something you want? 20 MR. DUPREE: Can I approach, your Honor? 21 THE COURT: Sure. 22 BY MR. DUPREE: 23 Q Have you had an opportunity to look at that table, 24 sir? 25 A Yes. Owen & Associates (352) 624-2258 _

539 1 Q And that book is that -- by the way, is that book 2 authoritative? 3 A It is accepted a typographical error there, which 4 I have already pointed out to the author. I believe the 5 author is Dr. Alex Evers of this chapter, even though it's 6 not listed here. And he and I have spoken about that. And 7 it's going to be fixed in the next edition. 8 Q Well, what does -- what does it say right there, 9 sir? It says 15.6; is that correct? 10 A Yeah, and doctor -- 11 MR. DUPREE: Your Honor, I'm going to object. 12 That's a total hearsay. It's in the book. I'm 13 asking him to look at what is there. 14 THE WITNESS: But I'm testifying that that's 15 a typographical error based -- 16 MR. DUPREE: Your Honor, I would move to 17 strike as hearsay. 18 THE WITNESS: -- based upon my assessment. 19 MR. NUNNELLEY: Your Honor, he's badgering 20 the witness. Can we go one at a time at the very 21 least? 22 THE COURT: I'll sustain the objection. Just 23 restate the question and let the witness answer 24 the question. 25 MR. DUPREE: Judge, I asked the question. He Owen & Associates (352) 624-2258 _

540 1 went beyond the question. 2 THE COURT: All right. Well, we'll sustain 3 the objection. 4 BY MR. DUPREE: 5 Q Would you agree with me, sir, that if the noxious 6 stimuli is administered that that might have the effect of 7 moving the Cp50 up higher? 8 A Possibly. 9 Q And didn't you testify to that, in fact, in front 10 of lethal injection Commission? 11 A Yes. 12 Q When was the last time you used thiopental on a 13 patient, sir? 14 A I last used thiopental as an anesthetic in 1992, 15 and a few times since then intermittently I've used it at 16 high doses for brain protection during neurosurgery. 17 Q Okay. Would you agree with me that generally 18 thiopental should not be administered subcutaneously? 19 A In general that's a true statement. 20 Q And, in fact, to you when you are in a clinical 21 situation when you're administering -- or when you were 22 administering thiopental to patients, would you administer 23 it subcutaneously? 24 A Never deliberately. Thiopental should only be 25 deliberately given IV. Owen & Associates (352) 624-2258 _

541 1 Q If somebody was undergoing surgery in your 2 hospital, and you're the anesthesiologist and you were using 3 thiopental, the Cp50 would move dramatically to the right. 4 Would you agree -- would you agree the Cp50 would be well 5 above 7.3? 6 A Actually, no, because we would -- even when we 7 used it, we didn't use it as a sole drug. And so these 8 studies that involve using it as a drug in isolation do not 9 reflect a real world scenario because never in my life had I 10 used thiopental, even when I used it, I never used it as a 11 sole drug. 12 Q When you're talking about the effects of the drug 13 with Mr. Nunnelley on direct examination, one of the effects 14 of thiopental would be to decrease respiration and 15 circulation; is that correct? 16 A Correct. 17 Q Okay. And how about pancuronium bromide, would 18 you tell me what the effects of that would be? 19 A Pancuronium bromide paralyzes the skeletal 20 muscles. 21 Q And going back to thiopental, could you tell me 22 how rapidly somebody would be induced to be unconscious? 23 A Typically, after a few hundred milligrams have 24 been delivered the onset of unconsciousness is typically 25 between thirty and sixty seconds. Owen & Associates (352) 624-2258 _

542 1 Q And how about pancuronium bromide? 2 A The -- well, first of all, I would have to tell 3 you that the onset is dosed dependant, so the larger the 4 dose the more rapid the onset. And there are no studies in 5 humans or animals that reflect the sort of dose that's been 6 used here. 7 So typically when a dose of ten milligrams is 8 given to a human of average size, the onset is somewhere in 9 the vicinity of four to five minutes. I could tell you that 10 given a hundred milligrams it will be more rapid, but I 11 can't tell you how much more rapid. 12 Q And if somebody was given pancuronium bromide and 13 thiopental and an execution had not taken effect what would 14 be -- what would be the effects the person would feel? 15 A Initially, they would become weak and short of 16 breath, and later on they would become completely paralyzed. 17 Q And how would that feel to the person? 18 A It would be horrible. They would feel like they 19 needed air and would not be able to breathe in, so it's what 20 we call air hunger. 21 Q The other trait that pancurion -- pancuronium 22 bromide would have would be to mask if somebody was awake 23 under thiopental -- not getting enough thiopental, would 24 that be correct? 25 A A person who is wide awake and completely Owen & Associates (352) 624-2258 _

543 1 paralyzed by pancuronium would be unable to mount any sort 2 of motor response that would be visible to anyone. 3 Q And would you say that that would cause you to 4 have a problem to establish what the person's anesthetic 5 depth might be? 6 A Not to an anesthesiologist. It would perhaps make 7 it difficult for a layperson to determine the presence or 8 absence of consciousness. But assessing the depth of 9 anesthesia by an expert can be done in the presence of total 10 paralysis. 11 Q Going to a situation when somebody is being 12 executed, is there an anesthesiologist present at the time 13 that person is being executed? 14 A I don't believe there is in Florida. 15 Q And in Florida -- first of all, do you have any 16 knowledge about the execution chamber and who stands in the 17 execution chamber? 18 A Only what I've heard in this morning's testimony. 19 Q And that would be all Department Of Corrections 20 personnel; would that be correct? 21 A I believe so. 22 Q And that would be one guard that stands at the 23 person's head, another person who would stand at a person's 24 waist. There's another person who is by the person's feet. 25 And then you have a warden and assistant warden that were Owen & Associates (352) 624-2258 _

544 1 further away. Is that correct? 2 A If that's how they testified, yes. 3 Q And there were also another person, but farther 4 back underneath a clock. Did you hear that testimony this 5 morning? 6 A I believe that person is recording data? That's 7 my interpretation. There's someone in there who is supposed 8 to be keeping a log. 9 Q So that's your interpretation from this morning, 10 someone is keeping a log? 11 A No, that's actually in the protocol. It says 12 there's somebody recording data. 13 Q Okay. And are any of those people medically 14 trained to your knowledge? 15 A Not that I know of. 16 Q And the warden certainly would not be medically 17 trained? 18 A I would assume not. 19 Q And if you were to be undergoing surgery, sir, and 20 somebody was going to be giving you anestesia -- anesthesia, 21 would you want somebody that was not medically qualified to 22 determine your depth of anesthesia? 23 A No. 24 Q Do you know how much pancuronium Florida uses? 25 A I believe the protocol says a hundred milligrams. Owen & Associates (352) 624-2258 _

545 1 Q And pancuronium, is that given intravenously? 2 A Yes. 3 Q Are there times when it might be given 4 subcutaneously? 5 A By accident only. 6 Q How quickly would somebody's respiration stop if 7 you were given five thousand -- five thousand milligrams of 8 thiopental? 9 A I would typically expect it to cease within a 10 minute or two of the beginning of the injection. 11 Q And Mr. Nunnelley was going through on direct with 12 you about the tubing and the -- and the plunger and things 13 of that nature -- 14 A Yes. 15 Q -- do you recall that? And in Florida how quickly 16 would you expect to deliver a dose of the sodium thiopental 17 to the inmate? 18 A Well, depending on the length of the tubing, if 19 the person were injecting at two milliliters per second, 20 from the time they first started pushing the plunger on the 21 thiopental syringe it would then take approximately eight 22 seconds for the first of the thiopental to reach the 23 intravenous catheter. 24 Q And how quickly would it get to the patient or the 25 person being executed? Owen & Associates (352) 624-2258 _

546 1 A I just said, eight seconds. 2 Q Eight seconds? And how quickly would that 3 distribute throughout the body? 4 A That question doesn't make sense. 5 Q Well, and how quickly would it get to the brain? 6 A Typically, the arm to brain circulation time is 7 taken as twenty to thirty seconds. 8 Q So what's the total, from the time that a person 9 started pushing the plunger in Florida for that thiopental 10 to get to the person's brain? 11 A Well, the first pharmacological effect, certainly 12 not the peek effect, but if we take eight seconds as an 13 estimate of pushing the thiopental through the dead space, 14 and twenty to thirty seconds as an estimate for the arm to 15 brain circulation time, then the first pharmacological 16 effect is probably forty to forty-five seconds from the time 17 that the person first starts pushing the plunger. 18 Q So within forty-five -- forty to forty-five 19 seconds what would you expect? 20 A During that first forty-five seconds, nothing. 21 Q After that? 22 A The person would start feeling sleepy. 23 Q How long would it take a person to become 24 unconscious? 25 A Well, typically, loss of consciousness would occur Owen & Associates (352) 624-2258 _

547 1 after the delivery of one hundred and fifty to two hundred 2 milligrams, which in the five percent solution that Florida 3 uses would be three or four more milliliters; so therefore 4 just a few more seconds. 5 Q So less than a minute? 6 A Yes. 7 Q So certainly from the time that the person -- the 8 executioner in this case -- started pushing the plunger, the 9 first round of sodium thiopental, you would expect that 10 person to be asleep and unconscious within one minute; is 11 that correct? 12 A If they are able to administer the two milliliters 13 per second I would expect the person to lose consciousness 14 in less than a minute. 15 Q Okay. Now, did you -- you said you were in here 16 this morning? 17 A Yes. 18 Q Did you hear testimony that long after a minute or 19 two Mr. Diaz was speaking, moving, breathing heavily, 20 pursing his lips; did you hear that testimony? 21 A Well, I actually didn't hear the breathing heavily 22 or pursing his lips, but I did hear the statements about the 23 fact that he did appear to speak. 24 Q And how long after was that? 25 A Well, nobody described that, but -- nobody could Owen & Associates (352) 624-2258 _

548 1 describe how long it was. 2 Q Well, what if he was talking seven minutes after? 3 A That would be unexpected. 4 Q And would that mean that the thiopental had not 5 been delivered intravenously? 6 A It would suggest that an adequate dose had not 7 been delivered. I can't say that none of it was delivered 8 intravenously, but I would strongly imply that an adequate 9 dose had not been delivered intravenously. 10 Q In your clinical practice do you train people to 11 work IVs, to put them in? Do you train people to do that? 12 A I teach occasionally medical students how to put 13 IVs in, but that's generally not part of my usual teaching 14 repertoire. 15 Q In your practice do you do that, do you have 16 residents that come to you and -- and you teach them how to 17 put in IVs? 18 A Most residents know how to put IVs in. 19 Q Okay. Did you have anything to do with the 20 training of the Department of Corrections personnel in terms 21 of putting IVs in? 22 A No. 23 Q Do you have any knowledge whatsoever as to what 24 the person who put the IVs background is? 25 A No. Owen & Associates (352) 624-2258 _

549 1 Q When you're putting in an IV line -- and I'm 2 assuming you've put them in before? 3 A I've put lots of IVs in. 4 Q How many times do you think you've put in IVs? 5 A Many thousands. 6 Q And have you ever had an IV that didn't work? 7 A Certainly. 8 Q How many times do you think that's happened? 9 A Hundreds. 10 Q And can you tell me the various things that might 11 happen, why it might not work? 12 A Well, typically, in my experience if the IV isn't 13 working it's usually because the tip of the catheter is not 14 in the vein. 15 Q And what -- what would be the effect of that? How 16 would -- how would you know that it might not be in the tip 17 of the vein, what would tell you that? 18 A It's typically that there's either a collection of 19 fluid at the IV catheter site, or that the flow from the bag 20 is not as expected, or a combination of both. 21 Q And would you discontinue, is that the point in 22 time just to push chemicals into a person's body if you had 23 that -- if you had that problem? 24 A Of course not. 25 Q Are you familiar with a term called back pressure? Owen & Associates (352) 624-2258 _

550 1 A Yes. 2 Q Could you please tell the clerk -- the Court what 3 back pressure is? 4 A Well, it's actually a misnomer applied to IVs. 5 But there is a significant pressure drop from the syringe to 6 the IV catheter as it goes into the vien. And that pressure 7 drop depends upon the length of the tubing, and the caliber 8 of the tubing, and the length of IV catheter, and the 9 caliber of the IV catheter. 10 And so what that basically means is the amount of 11 pressure that is being exerted on the plunger of the syringe 12 is much greater than the actual pressure that exists at the 13 site of the IV catheter as it goes into the vien. 14 Q And if somebody had pressure -- had resistance in 15 a plunger, or if you did -- let's start with you. If you 16 had that problem, where you had plunger resistance, what 17 would you do? 18 A I would investigate why it's there. 19 Q And what would you do to investigate that? 20 A Typically, I would check to make sure, as I 21 described previously, that the IV is flowing as expected. 22 Q And I'm assuming you've had that happen to you 23 before? 24 A Of course. 25 Q And how many times do you think that's happened to Owen & Associates (352) 624-2258 _

551 1 you? 2 A Hundreds. And it could be for many reasons. For 3 example, sometimes there are clamps -- there are certain 4 clamps on the IV tubing. And a clamp could get clamped by 5 accident. The IV tubing could become kinked or bent because 6 of the way the person is placed in bed. 7 So not every unexpected degree of pressure on the 8 IV -- or the syringe plunger means that there's a 9 malfunction of the catheter. It could be anywhere between 10 the catheter and the syringe itself. 11 Q But you would want to investigate that to find out 12 what it is? 13 A Yes. 14 Q Okay. In terms of the tubing that's used in 15 Florida, do you know what the tubing is? 16 A I've seen tubing similar to it. I don't know if 17 it's the same manufacturer that we use, but it's pretty 18 generic-looking IV tubing. 19 Q What kind of tubing is it? 20 A Do you mean what plastic it's made out of? 21 Q Yes. 22 A I think it's polyethylene. 23 Q And you've used that -- have you used the same 24 type of tubing before in your practice? 25 A Something like that. I can't tell you if it's Owen & Associates (352) 624-2258 _

552 1 made by the same manufacturer, but these things are very 2 generic looking from manufacturer to manufacturer. It's 3 perfectly recognizable to me. 4 Q And in terms of the Angel Diaz execution, were you 5 shown any photographs of Mr. Diaz when he was strapped to 6 the gurney? 7 A No. 8 Q Do you have any knowledge of how the lines were 9 run from the execution room to the execution chamber? 10 A Only as it was described today. 11 Q And if you heard testimony that the tubing was 12 attached to the gurney -- 13 MR. DUPREE: And, your Honor, can I just be 14 kind of demonstrative here for just a second, if 15 you don't mind? 16 BY MR. DUPREE: 17 Q If this is Mr. Diaz, and I'm Mr. Diaz, and I'm 18 laying down on a gurney -- I would lay on the floor but I 19 might not be able to get back up -- if I'm here on a gurney 20 and there was tubing that came out of my arm, ran down the 21 length of the gurney where it was taped, and then made a 22 right turn to go under the gurney, toward the floor, and 23 then up to a little slot that's a four by six inch slot -- 24 MR. NUNNELLEY: Your Honor, that's very good 25 but that's not what the testimony was. I don't Owen & Associates (352) 624-2258 _

553 1 believe it was making -- I did not hear the 2 testimony that there is a right turn, down on the 3 floor, and then back up. I don't believe we've 4 heard that testimony. 5 THE COURT: This is a hypothetical. Go 6 ahead. 7 MR. DUPREE: Yes, sir. 8 MR. NUNNELLEY: As long as it's clearly a 9 hypothetical. 10 BY MR. DUPREE: 11 Q Could there be a problem with that type of tubing? 12 Would that cause the tubing maybe to kink or having that 13 sharp right turn? 14 A It depends on how sharp it is. 15 Q Do you have kinking problems with your tubing in 16 your clinical practice? 17 A Certainly. 18 Q Approximately how many times a week do you have 19 that happen? 20 A Well, actually, if a patient's arms are at their 21 side during the surgery, it's actually not that uncommon 22 that the surgeon leans on their IV tubing. So it happens 23 with some frequency, and we tell them to move. 24 Q Okay. With regard to a person who is inserting an 25 IV as part of an execution team, what qualifications do you Owen & Associates (352) 624-2258 _

554 1 think that person should have? 2 A They should put in IVs as part of their day job. 3 Q And you're familiar with -- with administering 4 anesthetics remotely; you've done that before? 5 A Not commonly, but I have done it. 6 Q And, in fact, you've probably done it less than 7 time -- ten times; is that correct? 8 A Depending on your definition. But if you're 9 referring to other times where I've testified being in a 10 different room and giving anesthesia for MRI procedures, 11 yeah, it's probably ten or twelve or less. 12 Q And how long have you been an anesthesiologist? 13 A As an attending physician since 1986. 14 Q Okay. So that's twenty-one years. 15 A Yeah, but we didn't have MRIs back then, so -- 16 Q Oh, I understand that. 17 A -- these MRI experiences are more recent. 18 Q Now, when you're remotely -- and you said you've 19 had that experience -- when you're remotely monitoring a 20 patient what do you do? 21 A When I'm monitoring a patient? 22 Q Yes. 23 A What I do is rely on the electronic monitors that 24 we have in place. 25 Q And what monitors do you use? Owen & Associates (352) 624-2258 _

555 1 A Well, typically, we have electrocardiogram, we 2 have Pulse Oximetry we have capnography, we have blood 3 pressure. Those are the mandated ones that we use in almost 4 every case. 5 Q Okay. And generally in your clinical experience 6 when you're the anesthesiologist for somebody who is doing 7 surgery where are you located with regard to the patient? 8 A Usually at the head or the side. 9 Q And so you're close? 10 A Generally. 11 Q Within three feet? 12 A Usually. 13 Q Most of the time you would be at the head? 14 A Yes. 15 Q Unless there's something going on with the head 16 that would cause you to move down by the feet perhaps? 17 A Or the side. 18 Q But you would be within very close proximity and 19 you would be monitoring the patient; would that be correct? 20 A Yes. 21 Q And you wouldn't sit -- you would not induce the 22 anesthesia and just walk away, would you? 23 A There are occasions where I need to do that, 24 generally for my own protection, for example, during 25 radiation therapy. But it -- it's not common, but it's done Owen & Associates (352) 624-2258 _

556 1 occasionally. 2 Q And that's -- that's not a normal thing? 3 A Normal is not the word I would use. It's not a 4 common thing. 5 Q Now, going back to back pressure for just a 6 second. Do you think it might be important for somebody to 7 understand what back pressure is? 8 A Well, again, I wouldn't use the term back 9 pressure. But a person who is pushing the plunger down on 10 the syringe should know what resistance is and have an idea 11 of what normal resistance should feel like. 12 Q And do you train for that or is that something you 13 just pick up over the years? 14 A It's just by experience. 15 Q Just by experience. It's something that you had 16 to learn? 17 A By doing it, yes. 18 Q By doing it. Now, Mr. Nunnelley talked a little 19 bit about thiopental and pancuronium bromide. Now, if those 20 two were administered together in an IV line what might 21 happen? 22 A If they come in contact with one another they form 23 a precipitate. 24 Q And could you explain to the Court what that 25 means? Owen & Associates (352) 624-2258 _

557 1 A It means that one or both of the chemicals is no 2 longer soluble in solution and it turns into a solid. 3 Q And do you know which one of the two precipitates? 4 A Well, actually, that's controversial, and it 5 depends on who you ask. It's also not materially important 6 here, but one or both of them will solidify. 7 Q And what would be the effect on the IV line? 8 A It typically would plug up the IV line. 9 Q Now, if thiopental and pancuronium bromite -- I 10 keep screwing that up -- pancuronium bromide were injected 11 subcutaneously together what would be the effect? 12 A They probably wouldn't precipitate because the 13 body has an enormous capacity to buffer chemicals that are 14 injected, and so I don't expect that they will actually form 15 a precipitate unless they were confined in a very, very 16 small space. 17 But I do expect that the thiopental would hurt. 18 And I would expect that the onset of both drugs would be 19 very slow. 20 Q When you say very slow, are there any studies that 21 you could cite to the Court? 22 A As far as I know nobody has ever studied the 23 subcutaneous kinetics of thiopental or pancuronium. It 24 would just be based on clinical experience, and watched how 25 terribly slow the onset was. Owen & Associates (352) 624-2258 _

558 1 Q Now, if somebody was an administering thiopental 2 and then pancuronium bromide and they felt pressure, what's 3 the worst thing they could do? 4 A Well, they shouldn't continue. And it's not just 5 a feeling of pressure, because there's certainly significant 6 pressure when one is pushing on a sixty CC syringe. It 7 would be atypical pressure, or a change in pressure. 8 Q And again, that would come with experience to know 9 that? 10 A Yes. 11 Q For instance, if I had never used a plunger before 12 you would not want me administering anesthetics to one of 13 your patients; is that correct? 14 A No, but I could show you what it should feel like 15 with a mock up of the sort of equipment. If we took the 16 stuff that was in the box here out of the box, I could hook 17 it up and show you what it's supposed to feel like in the 18 normal situation, and then show you what it's supposed to 19 feel like when, for example, somebody was standing on the 20 tubing. 21 Q When you are administering anesthetic to somebody 22 do you do that wearing a Haz Mat suit? 23 A No, I wear scrubs because we're not supposed to 24 wear street clothing into the OR, a hat, a mask, and that's 25 it. Owen & Associates (352) 624-2258 _

559 1 Q Have you ever induced the anesthesia for somebody 2 from a distance who was about to undergo a painful stimuli? 3 A Not that I can recall. 4 Q Would you undergo surgery if the person that was 5 administering your anesthetic only had CPR training? 6 A No. 7 Q Now, you mentioned the three drug cocktail. And 8 it's thiopental, correct? 9 A Yes. 10 Q And then you have -- you call it Pav -- there's 11 another name for it called Pavulon, the pancuronium bromide? 12 A Actually, the trade name -- 13 Q The trade name? 14 A -- the trade name Pavulon, I'm not even sure it's 15 available under it's trade name anymore because it's been 16 generic for so long. 17 Q Now you -- and the third would be potassium 18 chloride; is that correct? 19 A Yes. 20 Q And you described their effects on direct 21 examination? 22 A Yes. 23 Q And my understanding from having read the number 24 of times you've testified, there's a general statement that 25 you make basically, and you again made it today, that if Owen & Associates (352) 624-2258 _

560 1 those drugs are put into an IV, they're administered 2 correctly, in the doses that Florida does, that it is your 3 opinion that they would be -- that would be a humane 4 execution; is that correct? 5 A Well, the way I typically phrase it is, is that in 6 my opinion if the right drugs are given in the right dose 7 and in the right order through a working IV, I don't believe 8 there's any possibility that the inmate could suffer. 9 Q And your view -- and with regard to the thiopental 10 that person should be out within one minute, correct, with 11 that massive amount? 12 A Well, it's actually not dependant upon the five 13 thousand milligrams, because they'll lose consciousness at 14 about the same time. Even at the ultimate dose, if it was 15 going to be two thousand milligrams like some states use, 16 the person would be expected to lose consciousness, the 17 average person, typically when one hundred and fifty to two 18 hundred or three hundred milligrams are finally delivered. 19 So regardless of the final dose they will lose consciousness 20 when only a small fraction of that has been administered. 21 Q And again, that's all based upon one really huge 22 problem here, which is it's got to be properly administered 23 through an IV line intravenously. That's what you're basing 24 your statement on; is that correct? 25 A Yes, it works under the assumption that we have a Owen & Associates (352) 624-2258 _

561 1 properly functioning IV. 2 Q Okay. But if the thiopental is not delivered to 3 the brain, that concentration to the brain, wouldn't the 4 person's execution then become extremely inhumane if it 5 was -- because the thiopental is not getting there, would 6 that mean that the other two drugs are also not getting 7 there? 8 A Yes. Now, this is a question that was raised to 9 the -- 10 Q Doctor, it's a yes or -- it's a yes or no 11 question. 12 A No, it's not a yes or no question -- 13 Q Yes, it is yes or no. 14 A -- I have an explanation. 15 MR. DUPREE: Your Honor -- 16 THE WITNESS: May I give an explanation? 17 MR. DUPREE: -- I asked him a yes or no 18 question. 19 THE COURT: What is your question? 20 MR. DUPREE: I asked him -- I asked him, yes 21 or no, if the -- if the thiopental did not reach 22 the brain would that necessarily mean the other 23 two drugs also did not reach because of the IV? 24 That's a yes or no question, period. 25 THE COURT: I don't think it's a yes or no. Owen & Associates (352) 624-2258 _

562 1 You can answer it however it's required. 2 THE WITNESS: We are now well within the 3 realm of hypothesis because there's no studies on 4 this. But I was asked this question in several 5 different ways when I testified before the Florida 6 Commission. 7 And the onset of thiopental given 8 subcutaneously would be very slow. The onset of 9 pancuronium would be even slower, assuming both 10 were given into the same subcutaneous site. 11 BY MR. DUPREE: 12 Q And your theory about that is because of the pH 13 level of thiopental versus pancuronium bromide? 14 A No, it's actually based upon the known lipid 15 solubilities of the two drugs. 16 Q Which one of them would absorb in the fat faster? 17 A Thiopental. 18 MR. DUPREE: Your Honor, could I have just 19 one moment? 20 THE COURT: Sure. 21 BY MR. DUPREE: 22 Q Now, in the Diaz case is there any way for you to 23 determine how much thiopental got through to Mr. Diaz's 24 brain? 25 A No. Owen & Associates (352) 624-2258 _

563 1 Q Are you aware of the term called intraoperative 2 awareness? 3 A Certainly. 4 Q And you had -- I think you call it awareness under 5 anesthesia; is that correct? 6 A That's a synonym. 7 Q And which term do you use? 8 A I tend to use awareness under anesthesia. 9 Q Okay. And what is that? 10 A That is when a patient is intended by the 11 clinician to be asleep and they are awake during a part of 12 their anesthesia when the intent was to have them asleep at 13 that point in time. 14 Q Has intraoperative awareness in a clinical 15 situation ever happen to you? 16 A Yes. 17 Q Does it happen to every anesthesiologist? 18 A Every anesthesiologist who's honest. 19 Q And I think you -- I think you've been quoted at 20 that. I think you wrote an article that said, if the 21 anesthesiologist said it's never happened to them they're 22 not telling the truth? 23 A Or they're not asking their patients the right 24 questions post-operatively. 25 Q Okay. So it has happened to you? Owen & Associates (352) 624-2258 _

564 1 A Yes. 2 Q Now, in order for you to determine somebody's 3 surgical plane and try to make sure that nobody wakes up 4 during an operation what do you do? 5 A In 2007? 6 Q Yes. 7 A Okay. In 2007 for almost all of my general 8 anesthetics in addition to the monitors that I've previously 9 described, and in addition to physical examination, 10 primarily of the eyes, I also employ an EEG monitor that 11 helps me determine the depth of anesthesia based upon a 12 computer analysis of the patient's EEG waves. 13 Q And you continually monitor your patients when 14 you've giving the anesthesia; is that correct? 15 A Yes. 16 Q You don't just -- or you just don't get up and 17 walk away, turn your back on them, not look at them? 18 A No. I mean, I might turn the responsibility over 19 to another anesthesiologist or nurse anesthetist, because we 20 do give breaks to each other, but someone is always 21 monitoring the patient continually. 22 Q Continually. And you're usually close by, three 23 feet, four feet away? 24 A Most, typically. 25 Q Now, if -- we're going to talk about Mr. Diaz. If Owen & Associates (352) 624-2258 _

565 1 Mr. Diaz was in the execution room and he had six people 2 with no medical training whatsoever who were not watching 3 him, is that something that you would do in your practice -- 4 in your clinical practice? 5 Would you have somebody that is not qualified, not 6 medically qualified, never been to medical school, 7 monitoring somebody for depth of consciousness, or depth of 8 anesthesia? 9 A Not for surgical procedures. 10 Q Now, the third drug that we talked about is 11 potassium chloride; is that correct? 12 A Yes. 13 Q And what does potassium chloride do? 14 A Well, it's a salt whose components, potassium and 15 chloride, are obligatory components of bodily fluids. So in 16 the peri-operative period the IV fluids that we administer 17 to patients typically contain some potassium chloride. 18 Q And what would expect -- the effect be on the 19 heart? 20 A At the concentration that we use clinically, none. 21 Q How about the effect with the concentration that 22 Florida uses for execution? 23 A Well, when one gives hundreds of milliequivalents 24 rapidly the expected effect is to stop all electrical 25 activity in the heart. Owen & Associates (352) 624-2258 _

566 1 Q And why does it do that? 2 A Well, the explanation is rather complicated, but 3 in the body there is a low concentration of potassium 4 outside the cells, and there's a very high concentration of 5 potassium inside the cells; and therefore, that generates 6 what is called a potassium current. 7 But then rapidly changing the normal intracellular 8 to extracellular gradient the heart cells lose their ability 9 to generate the action potential, which is a basic nerve 10 stimulus that causes the heart to beat. 11 Q And how -- the amount that Florida gives for 12 execution, how quickly would you expect one -- first of all, 13 how quickly would it effect the heart, the amount that 14 Florida gives? 15 A Once it reaches the heart one would expect changes 16 in the ECG almost immediately. The problem is, and I have 17 reviewed quite a few ECGs -- 18 Q Can I stop you for just a second. Well, could you 19 tell me how quickly? Would you say -- can you give me a 20 degree of time? 21 A The answer is complicated, and I will try to 22 answer it as best I can. Once the potassium chloride 23 reaches the heart in substantial quantities, in other words 24 beyond a few milliequivalents, we would expect to see 25 changes in the ECG within seconds. Owen & Associates (352) 624-2258 _

567 1 The reason why this is complicated is because 2 since the potassium chloride is invariably being given after 3 a large dose of thiopental after it's deposited into the arm 4 vein, there's quite a bit of evidence that the circulation 5 time from the arm to the heart varies tremendously from 6 person to person primarily based upon the significant 7 cardiac effects of thiopental. 8 So I have reviewed ECGs where the potassium 9 chloride seems to take effect within a few seconds of being 10 injected, and in another cases it's taken minutes. And this 11 is a huge variable from person to person. 12 Q If given alone, if potassium chloride is given 13 alone, no thiopental, no pancuronium bromide, what would it 14 feel like to a person? 15 A First of all, as far as I know that's never been 16 done at this dose to a conscious person. But based upon 17 giving lower doses to conscious people by accident one 18 believes that it would be quite burn -- it would be an 19 intense burning sensation travelling up the arm. 20 And then once the potassium chloride reaches the 21 heart and the heart stops, that the person should in 22 addition start feeling some chest pain due to the lack of 23 oxygen supplied to the heart. And the person will probably 24 lose consciousness in ten to twenty seconds. But during the 25 time that the heart is stopped -- or after the heart is Owen & Associates (352) 624-2258 _

568 1 stopped, they'll probably have chest pain that feels like 2 angina until they lose consciousness. 3 Q Did you ever tell a court in Evans vs. Saar that a 4 person would suffer terribly? 5 A I think that that is evidence of terrible 6 suffering. 7 Q And it would cause death within one minute or 8 less? 9 A Once the potassium chloride stops the heart the 10 person -- there would be no mechanical contractions and the 11 heart will -- should remain permanently stopped, and the 12 person will probably lose consciousness in ten to twenty 13 seconds. 14 Now, if you're asking me what the definition of 15 death is, that's actually hard to answer because we do not 16 have a universally agreed upon definition for the exact 17 moment of death. 18 Q In terms of Mr. Diaz, and in terms of the 19 statement you just made, your theory with regard to the 20 potassium chloride again assumes that it is correctly 21 administered intravenously by a working IV into the vien; is 22 that correct? 23 A Yes. 24 Q And there's evidence in this execution, Mr. Diaz's 25 execution, that that did not occur; is that correct? Owen & Associates (352) 624-2258 _

569 1 A Well, it seems that the most plausible explanation 2 for why he didn't fall asleep is that there was a 3 malfunctioning IV. 4 Q Okay. 5 A Or, excuse me, IVs, because he had two. 6 Q He add two, both of which went through the vien; 7 is that correct? 8 A I suspect that, but I have no objective evidence. 9 Q Well, did you review Dr. Hamilton's testimony? 10 A No. 11 Q And he's the Medical Examiner; is that correct? 12 Do you know? 13 A I actually don't know. 14 Q Okay. Would you agree with me that the risk of 15 intra-operative awareness would increase if somebody has a 16 lack of experience in giving anesthesia? 17 A I'm not sure that's an important risk factor. 18 The -- in the studies that we have so far that risk factor 19 has not fallen out of the statics. 20 Q Did you testify in the Johnson case that it would, 21 in fact -- that if a person was administering anesthesia was 22 inexperienced that it would increase the risk level of 23 intra-operative awareness? 24 A And what was the date on that? Because there may 25 be a more recent paper. Owen & Associates (352) 624-2258 _

570 1 MR. DUPREE: May I approach the witness, your 2 Honor? 3 THE COURT: Sure. 4 MR. NUNNELLEY: May I approach and look over 5 your shoulder? I'm going to look over your 6 shoulder unless you got a copy. 7 MR. DUPREE: I'm sure we got one. This isn't 8 all of it. 9 MS. KRAVATH: What's the date? 10 MR. DUPREE: August 30th of 2004. 11 MR. NUNNELLEY: And what case is this? 12 MR. DUPREE: Johnson. 13 MR. NUNNELLEY: Okay. 14 MR. DUPREE: May I approach, your Honor. 15 THE COURT: Sure. 16 THE WITNESS: I just want to see the dates. 17 MR. DUPREE: Absolutely. 18 THE WITNESS: So what is your question? 19 BY MR. DUPREE: 20 Q Is that a factor? 21 A Well, actually, I said here -- 22 Q Go ahead and read the whole answer that's on 23 there. 24 A Would the risk of intra-operative awareness 25 increase if the person administrating the anesthesia is Owen & Associates (352) 624-2258 _

571 1 inexperienced or unskilled? 2 My answer was: That's a good question. We don't 3 know. In the largest setting in which intra-operative 4 awareness was examined that did not come out as a risk 5 factor, and so I don't know. Intuitively, you might think 6 it would be, but I don't know. 7 Q Thank you. 8 MR. NUNNELLEY: Your Honor, I am going to 9 object and move to strike. If that was supposed 10 to be impeachment, what he just read was 11 consistent with his answer. 12 MR. DUPREE: Your Honor, I just asked him if 13 he -- if he testified to that, period. 14 BY MR. DUPREE: 15 Q Okay. Doctor, if a person's got his eyes closed 16 does that mean they're unconscious? 17 A No. 18 Q In terms of the Department Of Corrections 19 personnel you do not know the qualifications of the medical 20 team; is that correct? 21 A That is correct. 22 Q You don't know the qualifications of the execution 23 team; is that correct? 24 A Correct. 25 Q You don't know the qualifications of the person Owen & Associates (352) 624-2258 _

572 1 that's putting the IVs in this case; is that correct? 2 MR. NUNNELLEY: Your Honor, that's been asked 3 and answered. 4 THE COURT: Overruled. Go ahead. 5 BY MR. DUPREE: 6 Q Are you familiar with a machine called a BIS 7 monitor? 8 A Very. 9 Q And what is that? 10 A The BIS monitor is actually the trade name for one 11 of the monitors that I was describing earlier. It records 12 EEG brain waves from the person's head, and then uses a 13 computer to analyze these to display a number that can be 14 correlated with the probability of unconsciousness. 15 Q Is there another machine that correlates that 16 also, it's called a Patient State Index? 17 MR. NUNNELLEY: Your Honor, I am going to 18 object to this. It's outside the scope of direct 19 and unrelated to any sort of impeachment of this 20 witness. 21 THE COURT: Overruled. Go ahead. 22 THE WITNESS: Yes. The Patient State monitor 23 is made by PhysioMetrics. 24 BY MR. DUPREE: 25 Q Okay. And they're -- what -- do both machines Owen & Associates (352) 624-2258 _

573 1 essentially do the same thing? 2 A Well, the companies wouldn't like you to say 3 that -- 4 Q Right. 5 A -- but in general, qualitatively, they're very 6 similar. 7 Q Is this something that you use in your clinical 8 practice as an anesthesiologist? 9 A Regularly. 10 Q Do you know whether or not Florida uses a BIS 11 monitor or PSI monitor in executions to determine level of 12 consciousness? 13 A I'm assuming they don't because it's not mentioned 14 in the protocol. 15 Q Going back to pancuronium bromide for just a 16 second. If a person is given pancuronium bromide and they 17 were ordered to open their eyes, would they be able to open 18 their eyes? 19 A For a few minutes after the drug is given, yes, 20 but then once the complete paralysis takes effect over a 21 period of minutes, then they would not be able to move 22 anything. 23 Q Now, when you testified before the lethal 24 injection Commission -- and you did that telephonically; is 25 that correct? Owen & Associates (352) 624-2258 _

574 1 A Yes. 2 Q And do you recall the date that you did that? 3 A Yes. 4 Q Was it this year? 5 A I believe so. I actually have a copy of the 6 report, and it has my name and date on there. I could look 7 it up, but I don't remember off the top of my head. 8 Q Would that makes sense to you if I said to you it 9 was February of 2007? 10 A That's probably about right. 11 Q And you said that prior to the time that you -- 12 you testified before lethal injection Commission, you'd 13 spoke with Ms. Snurkowski; is that correct? 14 A Yes. 15 Q Did you talk to any other Commission members? 16 A No. 17 Q Did you ever talk to a person named Bill Jennings? 18 A The name doesn't ring a bell, I don't think so. 19 Q How about Peter Cannon, from CCRC Middle Office? 20 A The name doesn't ring a bell, I don't know. 21 Q And prior to that time you had not spoken to the 22 ME? And, in fact, I think you said at that time that the 23 thing that you relied on for your testimony in front of the 24 lethal injection Commission was you had read some newspaper 25 articles; is that correct? Owen & Associates (352) 624-2258 _

575 1 A Right. As I told Ms. Snurkowski, I intended my 2 testimony to be based upon the scientific questions that 3 they would pose to me. And I didn't think that reviewing 4 any of the data that they had were going to be terrible 5 helpful. 6 Q Well, you knew that the lethal injection 7 Commission was meeting because of the Diaz execution; is 8 that correct? 9 A Yes. 10 Q Then you realized -- and you knew that the 11 Governor had actually created this task force to determine 12 what happened at the Angel Diaz execution? 13 A Yes. 14 Q But you still did not review -- even though you 15 were going to go and testify as an expert before this 16 commission, you still did not review the reports, you did 17 not talk to the Medical Examiner, you did not talk to the 18 toxicologist; is that correct? 19 A Because I intended -- 20 Q It's a yes or no question, doctor. 21 MR. NUNNELLEY: Your Honor, he's entitled to 22 explain his answer, which has been given twice 23 before already anyway. 24 THE COURT: You can answer. Go ahead. 25 THE WITNESS: Yes, because I expected that my Owen & Associates (352) 624-2258 _

576 1 testimony was primarily going to involve the 2 pharmacology and the deliver systems. And I 3 didn't need to review anything to talk about those 4 as an expert. 5 BY MR. DUPREE: 6 Q Could you tell this Court within a reasonable 7 degree of medical certainty when Angel Diaz became 8 unconscious or conscious? 9 A No. 10 Q Could you say within a reasonable degree of 11 medical certainty that the thiopental that was administered 12 went into Mr. Diaz intravenously? 13 A I have no way of knowing how much, if any, was 14 delivered intravenously. 15 Q You were posed a hypothetical during the lethal 16 injection Commission, I believe it was Dr. Varlotta. Do you 17 remember Dr. Varlotta from the Commission? 18 A Not specifically. 19 Q And Dr. Varlotta, he posed a hypothetical saying 20 that they had heard testimony that Mr. Diaz had been taunted 21 by guards, and had promised his family that he would remain 22 stoic -- 23 MR. NUNNELLEY: Your Honor, I am going to 24 object to the relevancy of this. 25 MR. DUPREE: Judge, we're in the Diaz Owen & Associates (352) 624-2258 _

577 1 execution. He's already testified on direct about 2 the effects of thiopental, it would make him 3 scream out, I'm entitled to cross on that. 4 THE COURT: Go ahead and finish your 5 question. 6 BY MR. DUPREE: 7 Q Do you recall testifying in the lethal -- in front 8 of the lethal injection Commission that people who are 9 administered thiopental subcutaneously might not cry out 10 given the circumstance under which you understood Mr. Diaz 11 told his family he would not cry out? 12 A I believe it is plausible that a patient could 13 attempt to remain stoic. 14 Q You also talked about a term called redundancy. 15 Do you recall giving testimony in front of the lethal 16 inject -- injection Commission with regard to redundancy? 17 A Yes. 18 Q And what is redundancy? 19 A In the context here it means having a duplicate 20 system in case one fails, so in this case two IVs. 21 Q Now, with regard to the two IVs, and the way you 22 understood redundancy, or the way you meant to tell the 23 lethal injection Commission about it, did you want both IVs 24 to be administered to the inmate simultaneously? 25 A Well, I actually wouldn't give a response like Owen & Associates (352) 624-2258 _

578 1 that. I would discuss the advantages and disadvantages of 2 sequential or parallel use of these redundant systems and 3 let others make the ultimate decision. But there are 4 advantages and disadvantages doing them either way, either 5 series or parallel. 6 Q Okay. And you said in this -- in this particular 7 instance the redundancy system failed? 8 A Yes. 9 Q If a person has liver problems is that going to 10 effect how a person could push chemicals into their body? 11 A No. 12 MR. NUNNELLEY: Outside the scope of direct, 13 your Honor. 14 MR. DUPREE: We're on the Diaz execution, 15 your Honor. 16 THE COURT: Overruled. Go ahead and answer 17 the question. 18 BY MR. DUPREE: 19 Q And your answer was no? 20 A No. 21 Q Now, you said you reviewed the protocols in this 22 particular case of Florida? 23 A Yes, the former protocol and the current one that 24 was issued about two weeks ago. 25 Q And when did you first review those? Owen & Associates (352) 624-2258 _

579 1 A Just within the last week or two. 2 Q And did you have any conversations with Mr. 3 Nunnelley about those? 4 A Yes. 5 Q Did you write a report to the DOC with regard to 6 what your feeling was on those? 7 A No. 8 Q And did you say you did or did not read the DOC 9 Task Force report? I'm sorry, I've forgotten. 10 A I read the Department Of Corrections' response to 11 the Governor's Commission's report. 12 Q Okay. And was that a response that said all team 13 members, meaning the execution team and the team in the 14 chamber, was not primarily focused on the inmate? Did you 15 read that? 16 A I don't recall if it's in there. 17 Q Now, in the 2006 -- 18 MR. DUPREE: May I have a moment, your Honor? 19 THE COURT: Yes. 20 BY MR. DUPREE: 21 Q Now, in these protocols -- do you have them in 22 front of you? 23 A No. 24 MR. DUPREE: Can I go? 25 MS. KEFFER: Here, it's one and two. Owen & Associates (352) 624-2258 _

580 1 BY MR. DUPREE: 2 Q I'm handing you exhibits, Joint Exhibits 1 and 2. 3 One being the August 16th, 2006, and Two being May 9th, 4 2007. And you said before that you recognized those; is 5 that correct? 6 A Yes. 7 Q And those are the ones that were provided to you 8 by Mr. Nunnelley? 9 A They were actually provided to me as PDF files, so 10 I'm assuming they're the same. 11 Q Now, looking specifically at the August 16th, you 12 said that the -- in comparing the August 16th and the May 13 9th, you said the one thing that you noticed was after the 14 administration of the first set of two syringes with the 15 thiopental that the procedure was going to be stopped; is 16 that correct? 17 A Paused. 18 Q Paused. And that purpose -- and then the inmate 19 was going to be checked; is that correct? 20 A For the presence or absence of consciousness, yes. 21 Q Of consciousness. And even though it's not in the 22 protocol, you told me what the Department Of Corrections 23 personnel is going to do; is that correct? At least what's 24 your understanding they were going to do? 25 A Yes. Owen & Associates (352) 624-2258 _

581 1 Q And you did not provide that information to them? 2 A No. 3 Q As to what they should do? 4 A No. In fact, I specifically asked Mr. Nunnelley 5 if he could tell me what the procedures would be, because I 6 expected to be asked about them. 7 Q And in terms of the 2007, and in comparison 8 between the two, let's just go -- let's go down the list, 9 okay? Now, the selection of the executioner is still going 10 to be done by the Warden; is that correct? 11 A Yes. 12 Q And the training of the execution team, even 13 though it is expanded upon in the May 7th (phonetic), it's 14 still going to be done by the Warden; is that correct? 15 A Or under his direct responsibility. 16 Q Right. So in terms of the training of the 17 execution team, in August of 2006, which by the way was 18 prior to the Angel Diaz execution, it says the Warden or his 19 or her designee will conduct simulations of the execution 20 process on a quarterly basis; is that correct? 21 A Yes. 22 Q And now it says, there is to be sufficient 23 training to insure that all personnel involved in the 24 execution process are prepared to carry out their roles for 25 an execution. The warden or his designee will conduct Owen & Associates (352) 624-2258 _

582 1 simulations of the execution process on a quarterly basis at 2 a minimum, or more often as needed as determined by, again, 3 the warden; is that correct? 4 A Yes. 5 Q That's essentially the same language as 2006; 6 would you agree with that? 7 A Well, it's in greater detail. 8 Q And additionally, a simulation shall be conducted 9 the week prior to any scheduled execution; do you read that? 10 A Yes. 11 Q All other persons involved with the execution 12 should participate in the simulations; do you read that? 13 A Yes. 14 Q So that doesn't mean a person has to do it, right, 15 they should do it, correct? 16 A As I read that that's a reasonable interpretation. 17 Q And were you aware from the lethal injection 18 Commission that the executioner in the Angel Diaz case 19 testified that he had never attended a training, hadn't 20 attended a training in seven years, and was not -- had no 21 medical qualifications whatsoever? 22 A I have no way of knowing that. 23 Q Now, does it say in the new protocol that the 24 executioner, the person who is going to plunge the drugs 25 into the inmate, has to attain -- has to have any kind of Owen & Associates (352) 624-2258 _

583 1 training whatsoever? 2 MR. NUNNELLEY: Your Honor, I am going to 3 object to this. I didn't offer Dr. Dershwitz as 4 an expert in the protocols. The protocols speak 5 for themselves. 6 MR. DUPREE: Your Honor, he testified on 7 direct all about these protocols. 8 THE COURT: Restate your question. 9 MR. DUPREE: Could you read that, please? 10 (Thereupon, the last question was read back.) 11 MR. DUPREE: Do you understand the question, 12 Judge? 13 THE COURT: Go ahead. 14 THE WITNESS: All I can infer from the 15 protocol is it says that there shall be sufficient 16 training to insure that all personnel involved are 17 prepared to carry out their roles. 18 BY MR. DUPREE: 19 Q Right. And that's all it says? 20 A Yes. And I believe elsewhere it designates the 21 overall responsibility to insuring that to the warden. 22 Q To the warden, correct? 23 A As far as I can tell. 24 Q And that -- and that's essentially in August of 25 2006 exactly what the 2006 protocol said; is that correct? Owen & Associates (352) 624-2258 _

584 1 The warden or his or her designee will conduct simulations 2 of execution process on a quarterly basis, correct? 3 A Yes. 4 Q Now, if I could, I would like to direct your 5 attention specifically to Page 7. 6 A Of the new or the old? 7 Q I'm sorry. Good question. The new one. 8 MR. NUNNELLEY: Excuse me, the new ones? 9 MR. DUPREE: The new ones, yes, sir. 10 MR. NUNNELLEY: On what page? 11 MR. DUPREE: Page 7. Your Honor, may I have 12 one moment? I just want to ask counsel one 13 question. Page 5, counsel. 14 MR. NUNNELLEY: Of which ones? 15 MR. DUPREE: Of the May 9th, 2007. 16 BY MR. DUPREE: 17 Q All right. Let me direct your attention to Page 8 18 of the protocol on May 9th. 19 MR. NUNNELLEY: You just told me Page 5. 20 MR. DUPREE: I misspoke. Page 8. Number 4. 21 BY MR. DUPREE: 22 Q And this was the change you were talking about 23 with Mr. Nunnelley; is that correct? 24 A Well, no, the change is primarily in Step Three. 25 Q Okay. Well, it goes to on to four if the inmate Owen & Associates (352) 624-2258 _

585 1 is not unconscious, correct? 2 A Yes. 3 Q Okay. 4 A But the major change begins at point three. 5 Q Correct. So let's read that. At this point a 6 member of the execution team will assess whether the inmate 7 is unconscious, correct? 8 A Yes. 9 Q The warden must determine after consultation that 10 the inmate is indeed unconscious, correct? 11 A Yes. 12 Q Until the inmate is unconscious and the warden has 13 ordered the executions to continue the executioners shall 14 not proceed to step five, correct? 15 A Yes. 16 Q And we've already discussed that there's nothing 17 about how they make that determination in that protocol, 18 correct? 19 A Yes. 20 Q Let's go on to number four. In the event that the 21 inmate is not unconscious the warden shall signal that the 22 execution process is suspended and note the time and order 23 the drapes to be closed, correct? 24 A Yes. 25 Q The execution team shall assess the viability of a Owen & Associates (352) 624-2258 _

586 1 secondary access site. And it's your understanding there's 2 line one and line two; is that correct? 3 A Yes. 4 Q One at the right arm, one at the left arm, 5 correct? 6 A Not necessarily, but typically. 7 Q Typically. So they're going to assess the 8 viability of a second access site. And then it says, if a 9 secondary access site is, or at any time, becomes 10 compromised, a designated member of the execution team will 11 secure peripheral venous access at another appropriate site 12 or will perform a central venous line placement with or 13 without a venous cut down at one or more sites deemed 14 appropriate by that team member. 15 Now, a venous cut down, and going to a femoral 16 vein -- a femoral artery, is that a more advanced medical 17 procedure than putting an IV into somebody's arm? 18 A Yes, it's a femoral vein, not the artery. 19 Q I'm sorry, femoral vein. That's a more advanced 20 medical procedure; is that correct? 21 A Yes. 22 Q Is that something you do -- 23 THE COURT: That's a what, what was your 24 question? 25 Owen & Associates (352) 624-2258 _

587 1 BY MR. DUPREE: 2 Q That's a more advanced medical procedure. And 3 that would require more skill for the person than just 4 putting an IV into somebody's arm; is that correct? 5 A Yes. And you asked me is that something that I 6 do. 7 Q That's something that you do? 8 A And I put IVs into the femoral vien with some 9 regularity, but I don't it by a cut down technique. I do it 10 percutaneously. 11 Q Okay. And with the cut down technique, it's 12 something that would be -- would require more skill on a 13 part of a person? 14 A Typically, yes. 15 Q Now, read on with me. It says, once the warden is 16 assured that the team has secured a viable access site the 17 warden shall order the drapes to be opened and signal the 18 execution process will resume, correct? 19 A Yes. 20 Q The executioners will then be directed to initiate 21 the administration of lethal chemicals from -- from stand B, 22 starting with the syringes of sodium Pentothal labeled one 23 and two. 24 A Yes. 25 Q Is that correct? Owen & Associates (352) 624-2258 _

588 1 A Yes. 2 Q Okay. Do you see anywhere there or in the next 3 paragraph that says, after the administration of sodium 4 Pentothal where they're going to check the inmate again to 5 determine whether or not he's unconscious? 6 A No. 7 Q So a person might have a situation, like Mr. Diaz 8 did, where we know that line A did not work into his left 9 arm, correct? We know that line B also did not work. And 10 nobody made a determination that he was conscious. Okay? 11 Isn't that the same thing that happens here, that 12 after a person is determined to be unconscious and they're 13 going to administer the drugs again, and then they're not 14 going to check for consciousness? Isn't that what that 15 protocol says, sir? 16 MR. NUNNELLEY: Your Honor, I have two 17 objections -- actually three. First of all, it 18 goes outside the scope of direct. This witness 19 was not offered as an expert in the English 20 language, nor was he offered as an expert on the 21 protocols. And third, it assumes facts not in 22 evidence. The protocols speak for themselves, and 23 this Court is well able to read this. 24 If Mr. Dupree wants to call Dr. Dershwitz as 25 his witness and have him read the protocols to the Owen & Associates (352) 624-2258 _

589 1 Court, that's fine. But this is outside the scope 2 of direct, it's irrelevant, it's immaterial, it 3 should be stopped. 4 MR. DUPREE: Judge, they can -- 5 THE COURT: Overruled. If you understand or 6 know, you can answer the question. 7 MR. DUPREE: Okay. 8 BY MR. DUPREE: 9 Q You do understand the English language, correct, 10 doctor? Let me just cover that objection. 11 A In general. 12 Q Okay. 13 A So the protocol -- 14 Q And you can read? 15 A Yes. So the protocol does not explicitly state 16 that after the second dose of thiopental is given that there 17 will be a pause -- 18 Q Right. 19 A -- for reassessment of consciousness. 20 Q Okay. Let's again read on to paragraph five. 21 Okay? Now, after having the second line we know the first 22 line, according to paragraph four, has in some way been 23 compromised whatever the circumstances are. Paragraph five 24 says, the executioner will remove from the stand on the work 25 top the syringe labeled Number Three, which is supposed to Owen & Associates (352) 624-2258 _

590 1 be the saline; is that correct? 2 A Yes. 3 Q Place the blunt (indiscernible) into the open port 4 on the -- 5 THE COURT REPORTER: I'm sorry, say that 6 again? 7 BY MR. DUPREE: 8 Q Okay. I'm sorry. Place the blunt cannula, 9 c-a-n-n-u-l-a, into the open port of the IV extension set 10 labeled A, and push the entire contents of that syringe into 11 the port at a rate that meets the injection resistance of 12 the cannula. When the syringe is depleted she will hand -- 13 she he will hand the empty syringe to the secondary 14 executioner. Correct? 15 A Yes. 16 Q Well, let's take a look at number five. It says 17 they're going to put saline solution in line A. Wasn't line 18 A the one that was just compromised and that's why they had 19 to stop the execution? 20 A If it was line A that they deemed nonfunctional. 21 Q So I -- let's go back then to number two, which is 22 before this. And it says they're going to place the first 23 round of sodium thiopental into the open port of the IV 24 extension set labeled A, correct? 25 A I believe that's the intent. Owen & Associates (352) 624-2258 _

591 1 Q That's what it says, right? 2 A Yes. 3 Q And so three talks about we're going to check to 4 see if he's unconscious. 5 Four says, we're going to suspend it. We're going 6 to make sure that the other line is accessible, and we're 7 going to go ahead then without checking. We're not going to 8 go with line -- we're going to do five and we're going to 9 put it into the same line. Correct? 10 A Apparently. 11 Q Thank you. Now, when you were reviewing the 12 protocols in August 16th -- for August 16th and for May 9th 13 was there anything in the Florida protocols that talk about 14 resuscitation equipment? 15 A No. 16 Q And so if there was a situation where a stay of 17 execution came in after the administration of the five grams 18 of sodium thiopental there's nothing in that execution room 19 to rush in and save the person; is that correct? 20 A That is correct. Although, I question whether the 21 person is resuscitatible after the delivery of that dose. 22 Q But there's nothing -- but there's nothing that 23 you can do because there's no equipment? 24 A Well, the equipment is less important. It would 25 require the presence of personnel who would be skilled in Owen & Associates (352) 624-2258 _

592 1 dealing with this sort of patient. So not any physician. 2 Typically, an Emergency Department physician, or a 3 critical care physician, or an anesthesiologist would have 4 to be standing right there, and then would need to have the 5 equivalent of a trauma bay in an Emergency Department. So 6 this would involve an extraordinary addition of personnel 7 and resources. 8 And I question, since this five grams has never 9 been given to a human for clinical reasons, knowing what a 10 three gram dose does to a typical patient, having done that 11 myself, I do question whether it's even possible to 12 resuscitate somebody who has gotten five grams. 13 Q But Florida is not even going to try, correct? 14 MR. NUNNELLEY: Your Honor, that's 15 argumentative. I object to it. It's also 16 irrelevant. 17 THE COURT: What did you say? 18 MR. DUPREE: I'll move on, Judge. 19 BY MR. DUPREE: 20 Q Have you -- you've been involved with other states 21 that do have resuscitation equipment in their execution 22 rooms; is that correct? 23 MR. NUNNELLEY: That is irrelevant. 24 MR. DUPREE: It is relevant, Judge. 25 THE COURT: Overruled. Overruled. Go ahead. Owen & Associates (352) 624-2258 _

593 1 THE WITNESS: Actually, I am unaware of any 2 state that has made provisions for the 3 resuscitation of an inmate who has received a 4 lethal injection. 5 BY MR. DUPREE: 6 Q Do you know whether or not the warden is qualified 7 to respond to medical emergencies? 8 A I have no specific knowledge. 9 Q Do you know if anybody on that team is -- is 10 qualified to respond to medical emergencies? 11 A I believe there are physicians present. 12 Q Do you know that for a fact? 13 A I don't know that for a fact, but it sounds from 14 the description like there are physicians present. 15 Q Now, in a situation where -- I'm hypothesizing 16 here with you -- if somebody received a small amount of 17 thiopental, one hundred milligrams in the administration 18 intravenously, and then something happened to the catheter, 19 it went in subcutaneously, popped out, and the person was -- 20 where would that person be at say with one hundred 21 milligrams of -- of sodium thiopental? 22 A Probably very sleepy but not unconscious. 23 Q And where would the person be unconscious? Give 24 me a number where the person would be unconscious? 25 A Well, typically, consciousness will be lost in an Owen & Associates (352) 624-2258 _

594 1 average person after one hundred and fifty or two hundred 2 milligrams are given, but they won't remain unconscious for 3 very long. 4 Q And how long a period of time would that be? 5 MR. NUNNELLEY: Judge, this has been asked 6 and answered at least five times. We don't need 7 to keep replowing the same ground trying to get to 8 five o'clock. 9 THE COURT: Overruled. Go ahead. 10 THE WITNESS: A matter of a few minutes. 11 BY MR. DUPREE: 12 Q A matter of a few minutes. So if a person 13 received some sodium thiopental intravenously and became 14 unconscious, and received that small amount, and then was 15 injected with pancuronium bromide, and the person woke up 16 after the injection of the pancuronium bromide, how would 17 the person -- how would the warden be able to determine that 18 the person was conscious or unconscious? 19 A Well, the hypothetical depends upon the IV then 20 popping back into the vein for the administration of 21 pancuronium, which I don't think is medically possible. 22 Q Well, didn't you just testify that the pancuronium 23 would actually absorb quicker than the thiopental? 24 A No, I said the opposite. 25 Q The thiopental would go faster? Owen & Associates (352) 624-2258 _

595 1 A From a subcutaneous injection site thiopental 2 would be absorbed more rapidly than the pancuronium. 3 Q What if a person was injected with sodium 4 thiopental and some pancuronium got in; how much would be 5 required to paralyze that person? 6 A Well, the typical paralytic dose is around eight 7 to ten milligrams for an average person. 8 MR. DUPREE: If can I have just a moment, 9 your Honor? 10 THE COURT: Sure. 11 MR. DUPREE: Judge, let me check my notes, we 12 may be getting toward the end here. 13 THE COURT: Sure. 14 BY MR. DUPREE: 15 Q When you testified before the lethal injection 16 Commission did you tell the Commission that you could come 17 up with a scenario in your mind in which the potassium 18 chloride went into his system faster than the two other 19 drugs, the pancuronium and the thiopental? 20 A I don't specifically recall, but if two IVs are 21 working -- are being utilized, and the potassium chloride is 22 put through a working IV, and the other drugs are put though 23 a malfunctioning IV, that is a scenario in which a 24 completely awake person could get the whole dose of 25 potassium chloride. Owen & Associates (352) 624-2258 _

596 1 Q First? 2 A First. 3 Q And you recall giving that statement, correct? 4 A I don't specifically recall, but I can think in my 5 mind of a scenario in which using two IVs improperly could 6 result in that scenario. 7 Q Okay. And there's no question that -- that the 8 two IVs here went into the veins and were improperly either 9 administered, came out, whatever? 10 A My understanding -- 11 MR. NUNNELLEY: Judge, facts not in evidence. 12 This witness cannot testify to it, and I object 13 it. 14 THE COURT: Overruled. Go ahead. 15 THE WITNESS: As I said, the most plausible 16 explanation for what happened to Mr. Diaz was that 17 both IVs malfunctioned. 18 BY MR. DUPREE: 19 Q You have been involved in other -- in other 20 states; is that correct, sir? 21 MR. NUNNELLEY: Asked and answered. 22 MR. DUPREE: I believe -- 23 THE COURT: Go ahead. 24 THE WITNESS: Yes. 25 Owen & Associates (352) 624-2258 _

597 1 BY MR. DUPREE: 2 Q And are you familiar with -- do you review 3 execution logs? Have you ever reviewed execution logs as 4 par of your expert testimony? 5 A I've actually reviewed data derived from execution 6 logs in at least one other state. 7 Q Which state is that? 8 A Virginia. 9 Q Have you ever reviewed any in Oklahoma? 10 A I think so. Although, for the purposes of 11 Virginia I did some calculations and prepared a table. I 12 don't recall what I did with the numbers in Oklahoma. 13 Q Were you provided with any -- any kind of 14 execution logs here for Florida? 15 A I don't believe so. 16 Q Do you know whether or not Florida uses a tape to 17 read out on an EKG during an execution? 18 A Well, my understanding is there's two monitors 19 hooked up. I don't know if they're just, you know, CRT 20 displays or whether there's a paper printout, also. 21 Q And so the answer is, you don't know if they have 22 paper printouts? 23 A I don't specifically know. 24 Q Okay. Had you -- so you don't recall ever seeing 25 one here in Florida? Owen & Associates (352) 624-2258 _

598 1 A I'm pretty -- 2 MR. NUNNELLEY: Asked and answered, your 3 Honor. 4 THE COURT: Go ahead. 5 THE WITNESS: I'm pretty sure I've never seen 6 a raw EEG (phonetic) strip from an execution here. 7 BY MR. DUPREE: 8 Q Did you ever ask for one in preparation for your 9 testimony to here -- today, or before the lethal injection 10 Commission with regard to the Diaz execution? 11 A No. 12 Q Does pancuronium serve any kind of a medical 13 purpose in an execution? 14 A As I testified elsewhere, there are advantages and 15 disadvantages to the inclusion of pancuronium. And the 16 ultimate decision on whether or not to include it in the 17 protocol is not a medical one. 18 Q And it's done to -- what does pancuronium do? 19 Why -- why is it used? 20 A Well, again, I have no specific knowledge of why 21 it was originally incorporated in a protocol. But if a 22 state were starting from scratch to write a protocol, there 23 are advantages and disadvantages to its inclusion. 24 And so I think you would be -- you could describe 25 well why it might be disadvantageous. The advantage that Owen & Associates (352) 624-2258 _

599 1 needs to be considered is that in addition to stopping the 2 heart the potassium chloride is expected to cause widespread 3 stimulation of nerve and muscle tissue throughout the body. 4 That will cause involuntary muscle contractions. 5 Many witnesses have improperly described those 6 movements as convulsions. And many witnesses have 7 erroneously assumed that those movements were associated 8 with suffering. And pancuronium will mitigate substantially 9 those involuntary muscle contractions. 10 And so it is reasonable to answer the -- to ask 11 the question, to pose the question, should this be in the 12 protocol? And then it is up to those policy makers to weigh 13 the advantages and disadvantages and come up with a final 14 decision. 15 Q Directing your attention to a case called Patton 16 vs. Jones, which is a Western District of Oklahoma case; are 17 you involved in that case? 18 A I believe that name rings a bell. 19 Q Were you provided execution logs in the Patton vs. 20 Jones case? 21 A To be honest with you, I can't remember. 22 Q Okay. Do you recall in Oklahoma that executions 23 recently have taken less than two to three minutes from 24 beginning to end? 25 A Again, I'm not very good at remembering such data. Owen & Associates (352) 624-2258 _

600 1 I have no specific recollection of anything they sent me. 2 Q If -- if an execution was to take only two to 3 three minutes, would that give the pancuronium bromide 4 enough time to get in the body and cause a paralytic effect? 5 A It would not have reached it's peek effects. It 6 would after three minutes have a substantial effect, but it 7 would not have reached its peek effect. 8 Q And since -- and then the next drug in Oklahoma is 9 the same as Florida, it's potassium chloride; is that 10 correct? 11 A Yes. 12 Q And the potassium chloride is what caused the 13 person to go into convulsions; is that correct? 14 A Absolutely not. 15 Q It causes -- it causes a convulsive moment? 16 A Can I just back up one second? 17 Q Sure. 18 A My recollection is that Oklahoma does not use 19 pancuronium. I believe they use Vecuronium, which peeks in 20 about one third to one half the time that it takes 21 pancuronium to peek. And -- 22 Q Well, do you know what the purpose of using the 23 Vecuronium is? 24 A For this -- I would assume it's the same reason 25 for using pancuronium. Owen & Associates (352) 624-2258 _

601 1 Q And that's also a neurologic -- a neuromuscular 2 blocker like pancuronium bromide; is that correct? 3 A Yes, with faster kinetics. 4 Q Okay. So were you ever provided in Oklahoma 5 anything that -- any witness statements that indicated that 6 during the execution that took two to three minutes that 7 nobody convulsed after being injected with potassium 8 chloride? 9 A I have no specific memory. 10 Q I want to cover just one area, I think I touched 11 on it before, about redundancy. In the lethal injection 12 Commission you talked about redundancy. And I think today 13 you testified that you thought it would be a good idea to 14 use both lines at the same time; is that correct? 15 A Well, as I said, there's advantages to either the 16 serial use or the parallel use. And it's up to others to 17 decide which one is better, because better is not a medical 18 decision. 19 Q Did you ever pass that suggestion along to the 20 Department Of Corrections? Did you pass it along to 21 Mr. Nunnelley, Ms. Snurkowski, anybody from DOC? 22 A No. I may have discussed the advantages and 23 disadvantages of parallel versus serial administration, but 24 I would not have made a recommendation as far as which one 25 is better because better is not a medical opinion. Owen & Associates (352) 624-2258 _

602 1 Q Do you know why Florida did not go along with 2 that? 3 A I don't know. And, in fact, they actually -- 4 MR. DUPREE: Your Honor, there's no -- 5 there's no question pending. 6 THE WITNESS: There is. I didn't finish my 7 answer, I was thinking. Florida does use a serial 8 method of redundancy. 9 BY MR. DUPREE: 10 Q But not the redundancy that you were talking 11 about, where they use both lines at the same time? 12 A That's parallel. 13 Q Okay. They don't use that? 14 A You said that they didn't adopt either one. And I 15 was thinking about how to rephrase it. That was not an 16 incorrect statement. They do use a serial method of 17 redundancy, they do not use a parallel one. 18 MR. DUPREE: Just one moment, Judge. Your 19 Honor, I have no other questions. 20 MR. NUNNELLEY: I have just a couple, your 21 Honor. May I approach? 22 THE COURT: Sure. 23 MR. NUNNELLEY: Very briefly, your Honor. 24 REDIRECT EXAMINATION 25 Owen & Associates (352) 624-2258 _

603 1 BY MR. NUNNELLEY: 2 Q Dr. Dershwitz, I'm showing you an article entitled 3 Thiopental Pharmacodynamics that Mr. Dupree showed you. 4 What's the date on that article, sir? 5 A It seems to be 1992. 6 Q Thank you, sir. And also look at the article 7 Pharmacological Properties of something or other Anesthetics 8 that he was discussing with you. And I believe you had 9 typographical error in there that Mr. Dupree chose not to 10 let you explain. Can you explain that to the Court, sir, 11 very briefly? 12 A This table, which appears to be in the latest 13 edition of Goodman and Gilman's, the Pharmacological Bases 14 of Therapeutics misquotes this 1992 article as demonstrating 15 that the minimum hypnotic level of thiopental should be 15.6 16 milligrams per milliliter. 17 MR. DUPREE: Your Honor, I object -- 18 THE WITNESS: -- and -- 19 MR. DUPREE: -- unless we can determine where 20 he got that information from, because I think it's 21 hearsay, I am going to object. 22 MR. NUNNELLEY: He asked the question, your 23 Honor, and cut the witness off from trying to 24 answer. He's entitled to explain his answer. 25 THE COURT: Overruled. Go ahead. Owen & Associates (352) 624-2258 _

604 1 THE WITNESS: Clearly this paper, that I 2 guess is not an exhibit, but this paper by Stanski 3 and coworkers published in 1992, did not measure 4 the hypnotic level of thiopental anywhere in this 5 paper. 6 The paper refers to the concentration of 7 thiopental necessary to prevent movement, which 8 has nothing to do with a hypnotic effect. 9 Hypnotic effect meaning sleep. 10 So in one case Stanski and coworkers are 11 measuring how much thiopental it takes to present 12 movement. And obviously this authors of this 13 chapter, because the number is 15.6 in both 14 places, have erroneously put it in here. 15 MR. DUPREE: Objection to the term 16 erroneously, your Honor. He doesn't know what 17 those authors were thinking. 18 THE COURT: Overruled. 19 THE WITNESS: It is undoubtedly a mistake 20 because everywhere in the literature -- 21 MR. DUPREE: Objection, your Honor, there's 22 no question pending. 23 MR. NUNNELLEY: I thought he was still 24 answering the one I asked him, Judge. 25 THE COURT: Overruled. Go ahead. Owen & Associates (352) 624-2258 _

605 1 THE WITNESS: Everywhere else in the 2 literature the approximate Cp50, or concentration 3 of thiopental that causes half of the people to be 4 unconscious is approximately seven. 5 BY MR. NUNNELLEY: 6 Q And doctor, one final question. In the practice 7 of anesthesiology the patient is expected to live, isn't he? 8 A Yes. 9 MR. NUNNELLEY: No further questions. 10 THE COURT: Any other questions? 11 MR. DUPREE: No, sir. 12 THE COURT: Okay. Thank you, doctor. 13 MR. NUNNELLEY: May this witness be released, 14 your Honor? 15 THE COURT: Released? 16 MS. KEFFER: Yes, your Honor. 17 THE COURT: You may be released. Thank you 18 very much. 19 MR. NUNNELLEY: Your Honor, I think we have 20 one matter to put on the record while 21 Dr. Dershwitz is packing up. 22 Mr. Dupree in cross examination asked him if 23 he had seen any photographs of Mr. Diaz on the 24 gurney. Now, if Mr. Dupree has such photographs, 25 he needs to produce them; otherwise, he needs to Owen & Associates (352) 624-2258 _

606 1 state on the record that there are no such 2 photographs. It's improper impeachment to ask a 3 witness if he has seen something that is known not 4 to exist. 5 MR. DUPREE: Judge, I don't even know how to 6 respond to that. 7 MR. NUNNELLEY: You completely know full well 8 how to respond. Doctor, thank you, sir. 9 THE COURT: Do you have any photographs? 10 MR. DUPREE: Judge, I asked the witness if 11 he'd seen any. I didn't provide him any 12 photographs. 13 THE COURT: Okay. 14 MR. DUPREE: I want to know if the State did. 15 THE COURT: Okay. All right. Ready to 16 adjourn until the next day? 17 MS. KEFFER: Your Honor, I certainly think 18 it's five o'clock. We're at a good stopping 19 point. And we have the next two days set. 20 THE COURT: Right. 21 MR. NUNNELLEY: Judge, the only thing I would 22 ask is if we could get some kind of an accounting 23 of who they're planning on calling next time. 24 We've been hearing that we're going to hear 25 Mr. Dupree testify as a witness as well as acting Owen & Associates (352) 624-2258 _

607 1 as an advocate. We haven't seen that. We have 2 just seen a lot of advocacy on his part today. 3 Who are they going to call then? 4 Just give us -- they need to give us some 5 kind of idea, if not today by the end of the week, 6 what they plan on doing with the rest of this 7 hearing time. 8 MS. KEFFER: Judge -- 9 THE COURT: June, June 18, is that -- 10 MS. WATSON: June 18th and 19th. 11 THE COURT: And 19th. 12 MS. KEFFER: -- the State was provided with a 13 witness list. And I certainly have been in pretty 14 constant communication with Mr. Changus with 15 regards to who I intend to present, as most of 16 them are from the Department Of Corrections. 17 So, you know, that has -- I have been very 18 open with that. It's the witnesses that we left 19 for the 18th and 19th. 20 I can tell you from what I had planned on 21 these two days, I believe we have Colonel Lorie 22 Thomas, Brenda Whitehead, Neal Dupree, William 23 Matthews. 24 I had subpoenaed Drs. Madan and Selyutin for 25 these two days. I understand they have not Owen & Associates (352) 624-2258 _

608 1 appeared. And I guess that's something we will 2 have to take up. 3 Assistant Warden Polk. Gretl Plessinger, 4 James McDonough, Max Changus, Electra Bustle, 5 George Sapp, and Dr. Hamilton. 6 And Dr. Hamilton was scheduled to come today. 7 Because I anticipated that Dr. Dershwitz would 8 take a substantial amount of time, I did call him. 9 I didn't want to waste his time coming here to sit 10 around and not testify, so. I have let him know 11 that our intent is to put him on the 18th and 12 19th. 13 THE COURT: How many more witnesses in total 14 do you have? 15 MS. KEFFER: Well, that's for the 18th and 16 19th. I can tell you there's one -- I would have 17 fourteen for the 18th and 19th. 18 THE COURT: Okay. And about how many more 19 after that? 20 MS. KEFFER: Your Honor, because I had only 21 received the new protocol on May 9th, other than 22 right now possibly two experts to testify I don't 23 have a plan for July. 24 I certainly can provide that at a -- you 25 know, if you want to set another date for an Owen & Associates (352) 624-2258 _

609 1 amended witness list based on the new protocol, I 2 would be happy to comply with that. 3 THE COURT: Okay. Ready to adjourn? 4 MR. CHANGUS: Your Honor, just for the 5 record, on the matter of Dr. Madan being not -- 6 well, Ms. Keffer and I had a conversation last 7 month as to whom she wanted on what days. Those 8 two names were not admitted -- they were sub -- 9 and we did not discuss them, so it wasn't a matter 10 of our production. 11 She -- you know, as she said she had them 12 under a subpoena, and if she plans to call them 13 she is going to notify us and we will continue to 14 work with her as appropriate. 15 MS. KEFFER: I did not -- it was a mistake 16 that I -- I wasn't thinking of them as DOC 17 personnel, and that's why it was my mistake. So 18 certainly we can talk about that. 19 THE COURT: Ready to adjourn? 20 MS. KEFFER: Yes. 21 MR. NUNNELLEY: I would ask we also 22 coordinate with State -- with the State rather 23 than all of a sudden merely calling Mr. Changus 24 because calling Mr. Changus is not the same thing 25 as telling me. I am counsel of record in this Owen & Associates (352) 624-2258 _

610 1 case, Mr. Changus is not. 2 THE COURT: Okay. All right. That would be 3 fine. June 18. 4 MS. WATSON: And 19. 5 THE COURT: June 18, what time, nine o'clock? 6 Nine o'clock? 7 MS. WATSON: Yes, sir. 8 THE COURT: 8:30? 9 MR. NUNNELLEY: Make it 8:30, Judge, we need 10 the time. 11 THE COURT: 8:30. In fact, we're running out 12 of six days here, not adding up the hours. 13 MR. NUNNELLEY: We're running through a lot 14 of them real slow, Judge. 15 THE COURT: Okay. We'll see you on the 18th 16 at 8:30, okay? 17 MS. KEFFER: That's fine. 18 MR. NUNNELLEY: Thank you, Judge. 19 THE COURT: All right. 20 (Thereupon, court was adjourned at 5:10 to be 21 resumed on June 18th, at 8:30 p.m.) 22 23 24 25 Owen & Associates (352) 624-2258 _

611 1 C E R T I F I C A T E 2 STATE OF FLORIDA 3 COUNTY OF MARION 4 5 I, Noelani J. Fehr, Stenographic Court Reporter 6 and Notary Public, State of Florida at Large, do 7 hereby certify that I was authorized to and did 8 stenographically report the foregoing proceedings 9 taken in the case of STATE OF FLORIDA VS. IAN 10 LIGHTBOURNE, CASE NUMBER 81-170-CF; and that the 11 foregoing pages numbered 483 through 619 inclusive, 12 constitute a true and correct record of the 13 proceedings to the best of my ability. 14 I FURTHER CERTIFY that I am not a relative, or 15 employee, or attorney, or counsel of any of the 16 parties hereto, nor a relative, or employee of such 17 attorney or counsel, nor am I financially interested 18 in the action. 19 WITNESS MY HAND this 6th day of June, 2007, 20 at Ocala, Marion County, Florida. 21 _______________________________ 22 Noelani J. Fehr 23 Stenographic Court Reporter Notary Public 24 State of Florida at Large 25 My Commission expires: 7-24-2010 Owen & Associates (352) 624-2258 _

2316 1 IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT 2 OF FLORIDA, IN AND FOR MARION COUNTY 3 4 STATE OF FLORIDA 5 Plaintiff, 6 vs. CASE NO. 81-170-CF (VOLUME XV ONLY) 7 IAN DECO LIGHTBOURNE, 8 Defendant. 9 ------------------------------------------------------------ PROCEEDINGS: Continued Evidentiary Hearing 10 Concerning Lethal Injection (Diaz issue) 11 BEFORE: Honorable Carven D. Angel 12 Circuit Judge Fifth Judicial Circuit, In and 13 For Marion County, Florida 14 REPORTED BY: CONSTANCE MILLER, RPR Stenographic Court Reporter 15 Notary Public State of Florida at Large 16 DATE AND TIME: July 20, 2007; 1:30 a.m. 17 PLACE: Courtroom 3A 18 Marion County Judicial Center Ocala, Florida 19 20 21 22 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2317 1 APPEARANCES: 2 KENNETH S. NUNNELLEY, A.A.G. BARBARA C. DAVIS, A.A.G. 3 CAROLYN SNURKOWSKI, A.A.G. Office of the Attorney General 4 444 Seabreeze Blvd.,5th Floor Daytona Beach, Florida 32118 5 Attorneys for the State 6 SUZANNE KEFFER, ESQUIRE ROSEANNE ECKERT, ESQUIRE 7 ANNA-LIISA NIXON, ESQUIRE NEAL DUPREE, ESQUIRE 8 CAROLINE KRAVATH, ESQUIRE Capital Collateral Regional Counsel 9 101 Northeast Third Avenue Suite 400 10 Fort Lauderdale, Florida 33301 Attorneys for Defendant 11 12 MAXIMILLIAN J. CHANGUS, ESQUIRE Office of General Counsel 13 Florida Department of Corrections 2601 Blair Stone Road 14 Tallahassee, FL 34399-2500 Attorney for Department of Corrections 15 16 17 ALSO PRESENT: Gayle Watson, Judicial Assistant 18 19 20 21 22 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2318 1 I N D E X (VOLUME XV ONLY) 2 3 STATE'S WITNESSES 4 5 DOCTOR KRIS SPERRY 6 Direct Examination by Mr. Nunnelley . . . . . . . . . . 2319 7 Cross-Examination by Ms. Keffer . . . . . . . . . . . . 2362 8 Redirect Examination by Mr. Nunnelley. . . . . . . . . .2370 9 Recross-Examination by Ms. Keffer. . . . . . . . . . . .2373 10 11 Certificate. . . . . . . . . . . . . . . . . . . . . . .2374 12 13 14 15 E X H I B I T S 16 State's Exhibit Number 9 . . . . . . . . . . . . . . . 2327 17 18 19 20 21 22 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2319 1 AFTERNOON SESSION 2 June 20, 2007 1:30 p.m. 3 THE COURT: Okay. Thank you. 4 Okay. Resuming our hearing. 5 MR. NUNNELLEY: State calls Doctor Kris Sperry, 6 Your Honor. 7 DOCTOR KRIS SPERRY, 8 having been produced and first duly sworn as a witness, 9 testified as follows: 10 THE WITNESS: Yes, I do. 11 THE BAILIFF: Please be seated. 12 THE WITNESS: Thank you. 13 DIRECT EXAMINATION 14 BY MR. NUNNELLEY: 15 Q State your name for the record if you would, sir. 16 A My name is Kris Lee Sperry. 17 Q How are you employed, sir? 18 A I'm a forensic pathologist. I'm the chief medical 19 examiner for the State of Georgia. 20 Q How long have you been the chief medical examiner 21 for the State of Georgia, Doctor Sperry? 22 A A little over ten years. 23 Q Prior to becoming Georgia's chief medical 24 examiner, how were you employed? 25 A I was the deputy chief medical examiner for the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2320 1 Fulton County Medical Examiner's Office, which is basically 2 where Atlanta itself is located for seven and-a-half years. 3 Q And so now we've got seven and-a-half years of 4 your medical experience, right? 5 A Yes. 6 Q Prior to being the chief medical examiner or 7 deputy chief medical examiner, rather, in Fulton County, how 8 were you employed? 9 A I was the employed with the office of the medical 10 investigator which is the statewide death investigation 11 system for the State of New Mexico and I was in the capacity 12 of an associate medical investigator or forensic pathologist 13 for four years prior to the time that I moved to Georgia in 14 1989. 15 Q Okay. And prior to your work in New Mexico as a 16 forensic pathologists, what were you doing? 17 A Well, then I did all of my pathology and forensic 18 pathology training in New Mexico at the University of New 19 Mexico School of Medicine between June of -- July of 1981 20 and December of 1985. And so when I finished my training in 21 anatomic, clinical and forensic pathology, I started working 22 as a forensic pathologist there for the next four years and 23 then moved to Georgia. 24 Q Where is your medical school degree from, Doctor 25 Sperry? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2321 1 A University of Kansas School of Medicine. 2 Q And your undergraduate degree? 3 A It's from what's called Pittsburg State University 4 in Pittsburg, Kansas, which was the Kansas State College of 5 Pittsburg when I went there. They upgraded themselves. 6 Q Okay. When did you graduate with your 7 undergraduate degree? 8 A In 1975. 9 MR. NUNNELLEY: If I may approach, Your Honor. 10 BY MR. NUNNELLEY: 11 Q Doctor Sperry, I'm going to show you what's marked 12 as State's Exhibit Nine. 13 MS. KEFFER: Can I just take a look? 14 MR. NUNNELLEY: Sure. 15 (There was a pause.) 16 BY MR. NUNNELLEY: 17 Q It's been marked as State's Exhibit 9 for 18 Identification. 19 I would ask you to look at that document, 20 sir, and tell me if you could identify it. 21 A Sure. This is a current copy of my CV, which 22 is -- it's dated November 19th of 2006 and that's the last 23 time I updated anything on it. 24 Q Does that CV that you're looking at, State's 25 Exhibit 9 for Identification, truly and accurately reflect OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2322 1 you education, training, background and experience? 2 A Yes. 3 MR. NUNNELLEY: Going to offer it into evidence at 4 this time, Your Honor. 5 THE COURT: Admitted. 6 (The last-above-referred-to item was received and 7 filed in evidence as State's Exhibit Number 9.) 8 BY MR. NUNNELLEY: 9 Q Doctor Sperry, what does a forensic pathologist 10 do? 11 A Forensic pathologist is a specialist in the area 12 of sudden, unexpected, violent, unknown or otherwise 13 suspicious deaths. Basically, we evaluate individuals who 14 have died for any reason and determine what's called the 15 cause of death or basically how it is that they died and 16 what's also called the manner of death, which essentially 17 means by the virtue of the autopsy examination and any 18 circumstances associated with the death whether the death is 19 a natural death, a suicide, a homicide, accidental or 20 sometimes we call it undetermined or unclassified manner. 21 Q Does forensic pathologist also include a component 22 of either toxicology or pharmacology? 23 A Oh, yes, very definitely. 24 Q Why is that, sir? 25 A There is an actually amazing amount of deaths in OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2323 1 this country that are related, either directly or in 2 association with medications and drugs, both legal drugs, 3 that is prescribed medications, and elicit types of drugs of 4 medications. And as a consequence, forensic pathologists 5 probably deal with more drug-related deaths than I would say 6 almost any other medical specialty that I'm aware of. Maybe 7 perhaps excluding emergency room physicians who treat the 8 ones who survive. 9 Q Are you familiar with the drug known as thiopental 10 sodium? 11 A Yes. 12 Q Have you ever had the occasion to use thiopental 13 sodium in your practice of medicine? 14 A Well, when I was an intern and also in -- well, I 15 did an internship, a general internship and also I spent two 16 years in the United States Public Health Service as a 17 general medical officer or basically a family practice 18 doctor and emergency room physician and on occasion I use 19 sodium pentothal. It was uncommon but on occasion I 20 certainly did. 21 Q Are you familiar with the effects of that drug? 22 A Yes. 23 Q Are you familiar with the drug known as 24 pancuronium bromide? 25 A Yes. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2324 1 Q Have you ever had an occasion to use pancuronium 2 bromide as a doctor? 3 A I personally have not but I have been in surgical 4 situations assisting in surgery where pancuronium bromide or 5 pavulon was utilized. It's something that essentially 6 requires -- well, it basically in the therapeutic setting it 7 is used during surgeries, so it requires surgeon and also 8 the ability to breathe for the patient when it's used. So, 9 outside of surgery and anesthesia there really is no use for 10 it in a clinical setting. But I have been, I mean, 11 definitely assisting in surgery when pavulon was used. 12 Q And pavulon is the trade name for pancuronium 13 bromide, correct? 14 A Yes. It's synonomous, yes. 15 Q Now, does thiopental sodium also have a trade 16 name? 17 A Pentobarbital and thiopental. There's, you know, 18 a bunch of different names. It's been around for a long, 19 long time. It's one of the older barbiturates that actually 20 is marketed. I mean, a lot of different trade names. 21 Sodium pentothal is probably the easiest one to use. 22 Q Okay. Are you familiar with the compound known as 23 potassium chloride? 24 A Oh, yes. 25 Q And have you ever had occasion to use potassium OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2325 1 chloride in clinical practice, doctor? 2 A Yes, oh, yes. 3 Q And what is the purpose of potassium chloride in 4 clinical practice, sir? 5 A In clinical practice the purpose of potassium 6 chloride is to gradually and slowly replace the potassium 7 level in a patient who's depleted in potassium. This is a 8 very common condition in diabetics who are out of control 9 and in serious complications, because of their diabetes they 10 become depleted in potassium and so that, among other 11 clinical situations, is the use, the clinical use for 12 potassium chloride. 13 Q Now, doctor, are you familiar with the doses or 14 amounts of these drugs, if you will, and let's start with 15 thiopental sodium. Are you familiar with the amount of 16 thiopental sodium that would be used in a clinical 17 setting? 18 A Yes. 19 Q Are you familiar with the amount of thiopental 20 sodium -- let me ask it this way first. 21 Are you aware whether or not those three 22 drugs that you discussed; thiopental sodium, pancuronium 23 bromide and potassium chloride are used in carrying out 24 executions by lethal injection? 25 A Yes. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2326 1 Q Are those drugs used in that fashion? 2 A Yes, sir. 3 Q Are you familiar with the dosage levels of those 4 drugs that are used in carrying out executions by lethal 5 injection? 6 A Yes. 7 Q Are you also familiar with the clinical doses of 8 those drugs that are used when the purpose is to ensure a 9 patient's survival? 10 A Yes. 11 Q Are you familiar with the effects of thiopental 12 sodium, pancuronium bromide and potassium chloride that the 13 doses in which those drugs are used in carrying out an 14 execution by lethal injection? 15 A Yes. 16 MR. NUNNELLEY: Your Honor, at this point in time 17 I would offer -- sorry, couple more questions. 18 BY MR. NUNNELLEY: 19 Q Doctor Sperry, over the course of your career as a 20 medical doctor, how many times have you testified in court? 21 A Six hundred and eight. 22 Q Of those 608 times, can you tell us where you have 23 testified? 24 A I've testified live in court in 29 states, 25 District of Columbia and in both Germany and Japan for the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2327 1 US Military. 2 Q Have you ever testified in Florida? 3 A Oh, yes. 4 Q Do you have a judgment of how many times? 5 A Probably 15 or 18, I suppose, at least. Perhaps 6 even a little more than that. 7 Q And of the 608 times that you've testified in 8 court, on how many occasions were you accepted as an expert 9 witness? 10 A All of them. 11 MR. NUNNELLEY: Your Honor, at this point I would 12 offer the witness as an expert in the field of 13 pathology and also as an expert in the effects of the 14 drugs used in carrying out an execution by lethal 15 injection. 16 THE COURT: Any questions? 17 MS. KEFFER: Just one second. 18 (There was a pause.) 19 MS. KEFFER: Your Honor, at this time I would 20 object to Doctor Sperry being admitted as an expert in 21 the drugs that are used in carrying out lethal 22 injections. I have no objection to him being qualified 23 as a forensic pathologist. 24 THE COURT: Overruled. Admitted. 25 MR. NUNNELLEY: May I approach the witness, Your OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2328 1 Honor? 2 THE COURT: Yes. 3 MR. NUNNELLEY: I'm not going to do that just yet. 4 BY MR. NUNNELLEY: 5 Q Doctor Sperry, what effect does thiopental sodium 6 have when it is introduced, injected into a human being 7 through a properly working intravenous line? 8 A All right. Sodium pentothal used in say doses 9 that are for, for the creation of what's called surgical 10 anesthesia. That is, anesthetizing a patient to the point 11 where they are unconscious and also do not feel pain or have 12 the ability to recognize pain so that the surgeon can 13 operate on them. The usual dose for an adult human being is 14 about 200 to 400 milligrams that's given IV and the result 15 that that has is very rapid sedation. That is essentially 16 putting the person to sleep and rendering them unconscious 17 within a few seconds, usually less than about five seconds 18 or so. 19 Also, at the same time giving that dosage of 20 drugs in a sufficient quantity to create surgical anesthesia 21 has the effect of depressing the brain's centers of 22 breathing. That is, the parts of brain that control our 23 breathing which is an unconscious kind of thing. In other 24 words, we breathe whether we want to or not, but the sodium 25 pentothal given in theraputic doses enough to anesthetize OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2329 1 the patient has the side effect, if you will, of depressing 2 or even stopping the brain's breathing centers. 3 Q What level -- you expressed the dosage in 4 milligrams that you used? 5 A Yes. 6 Q What dosage level of thiopental sodium is 7 necessary or at what dosage does thiopental sodium does 8 there begin to be an effect on respiration? 9 A Well, there's just some variability at the lower 10 levels. As I said, somewhere between 200 to 400 milligrams 11 because there are variations both in size and just 12 physiologic tolerants, but when you get into the 400 or 13 above 400 milligrams of sodium pentothal being administered 14 intravenously basically that is at the level where virtually 15 every human being starts having respiratory depression and 16 they're unconscious as well. 17 Q And what would be the effect of a dose of 18 five grams of thiopental sodium on a human being? 19 A The effect would be first of all extremely rapid 20 unconsciousness, again within seconds. And extremely rapid 21 elimination of the breathing centers. That is, that amount 22 of drug would completely overpower the breathing centers in 23 the brain and almost simultaneously when the person who 24 received that dosage became unconscious they would stop 25 breathing as well. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2330 1 Q Do you have a judgment based on your education, 2 training and experience as to whether the effect of 3 five grams of thiopental sodium would wear off before the 4 person died due to failure of the respiratory system? 5 A Yes, I have an opinion about that. 6 Q And what is it, sir? 7 A The timeframe that sodium pentothal lasts in the 8 human body is about 15 to 30 minutes. That is once it's 9 given intravenously, if the person, if the patient say if 10 we're talking about a surgical situation, has a breathing 11 tube in their throat and is being given oxygen and someone 12 else is breathing for them, then they will stay alive until 13 the sodium pentothal wears off, as I said, about 15 to 30 14 minutes. 15 But if two grams or 2000 milligrams or 16 five grams of sodium pentothal are given intravenously, 17 this is going to produce as I said, unconsciousness within 18 a matter of seconds and complete cessation of breathing 19 virtually simultaneously. And when that occurs, then the 20 brain begins to die as a consequence of lack of oxygen and 21 irreversible brain death occurs, will begin to really 22 initiate between two and three minutes and the brain will be 23 dead between three and four minutes. 24 So, basically as long as no one else is 25 supplying oxygen or breathing for that unconscious person OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2331 1 who is rendered unable to breathe because of the five grams 2 of sodium pentothal, they will be dead between three and 3 four minutes. 4 Q And they would be dead long before the effects of 5 it could wear off? 6 A Long before that, yes. 7 Q Doctor, let me get you to look at Joint Exhibit 2, 8 which I'll represent to you is the execution by lethal 9 injection procedures that are effective after May 9, 2007. 10 Now, directing your attention to page four. 11 Read over that if you would, sir, and let me know when 12 you've gotten through with the paragraphs relating to the 13 three specific drugs that are at issue. 14 A Okay. 15 MR. DUPREE: Which one was that? 16 MR. NUNNELLEY: May seven, I'm sorry. The doses 17 hadn't change. 18 MR. DUPREE: No, No, I wanted to know -- 19 MR. NUNNELLEY: I think it's page four, I believe. 20 (There was a pause.) 21 THE WITNESS: Okay. 22 BY MR. NUNNELLEY: 23 Q Doctor, from reviewing that are you able to 24 determine what the dosage levels that are being used in the 25 Florida lethal injection are? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2332 1 A Yes. 2 Q And what do you -- what are they? 3 Let's go drug by drug. 4 A Sure. 5 Q How much thiopental sodium is Florida using? 6 A Well, a total of five grams is being utilized for 7 the actual injection process with two, with another two 8 syringes containing a total of five grams as backups. 9 Q Okay. And how about the pancuronium bromide or 10 pavulon? 11 A With the pavulon it appears that there's a total 12 of 200 milligrams that are used and then with two syringes 13 to be, you know, that are utilized and two as a backup. 14 So, it appears that there's 100 milligrams that are actually 15 injected. 16 Q Do you have an opinion as to what effect the 17 injection of 100 milligrams of pancuronium bromide into a 18 human being would be? 19 A Yes. 20 Q What would happen? 21 A That would cause virtually instantaneous paralysis 22 of all of the, what are called the skeletal or the voluntary 23 muscles in the body including the diaphram. So, the person 24 would be completely paralyzed and unable to breathe by 25 virtue of that drug alone. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2333 1 Q Do you have an opinion as to whether or not if an 2 individual is injected with five grams of thiopental sodium 3 and is then injected with 100 milligrams of pavulon, as to 4 whether or not that individual will perceive the paralysis 5 induced by the pavulon? 6 A Yes, I have an opinion about that. 7 Q What is a opinion, sir? 8 A My opinion if the individual received five grams 9 of sodium pentothal they would be rendered unconscious and 10 insensate within seconds and unable to perceive anything; 11 pain, anything at all. They would be completely 12 unconscious. And then subsequently if they receive the 13 pancuronium bromide or pavulon, they would not -- despite 14 what that drug does, it paralyzes the muscles. At that 15 point in time however, the person would be unable to 16 perceive any kind of paralysis because they would have been 17 rendered completely unconscious by virtue of the sodium 18 pentothal that was given first. 19 Q Now, continuing on with the execution procedures, 20 the third substance -- would it be even proper to refer to 21 potassium chloride as a drug? It's a compound, right? 22 A Yes, it's not a drug in a sense that it's a 23 naturally occurring compound. Actually, you can actually 24 buy it in the grocery store as sodium free salt for that 25 matter. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2334 1 Q Really? 2 A Oh, yes. Hypertensive people often use that. 3 Q What is the dosage of potassium chloride that's 4 being used on execution in Florida, sir? 5 A There's a total of 480 milliequivalents that are 6 used with 120 milliequivalents in each of four syringes. 7 And then two syringes are used during the execution 8 procedure and then two utilized as backups. So, a total of 9 240 milliequivalents of potassium chloride are utilized. 10 Q What would be the effect on a human being of the 11 injection of that dose of potassium chloride? 12 A That would cause instantaneous cessation or 13 stoppage of the heart. 14 Q If the individual into whom the 240 15 milliequivalents of potassium chloride is injected has been 16 rendered unconscious and insensate by the proper delivery of 17 five grams of sodium thiopental and has subsequently been 18 injected with 100 milligrams of pavulon, would that person 19 have any perception of the injection of the potassium 20 chloride into his or her body? 21 A No, absolutely not. 22 Q Do you have an opinion as to whether or not the 23 usage of the three drugs that we have discussed; the 24 thiopental sodium, the pancuronium bromide, and potassium 25 chloride, if properly delivered through a properly OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2335 1 functioning intravenous line, will cause a humane, painless 2 death to the condemned inmate? 3 A Yes. And in my opinion that's exactly the result 4 that would be achieved. 5 Q Now, with respect to the effects of the pavulon, 6 the pancuronium bromide, you testified earlier that the 7 injection or delivery, if you will, of five grams of 8 thiopental sodium will cause the person to quit breathing. 9 A Alone, if that is the only drug that is 10 administered to someone, that is what the effect will be, is 11 virtually instantaneous paralysis and cessation of 12 breathing. 13 Q Then that person would go apneic and begin to die? 14 A Correct. If that drug was given alone and was the 15 only medication was given, that's exactly what would happen. 16 The person would be aware of being paralyzed and unable to 17 breathe until they lost consciousness somewhere between 30 18 and 60 seconds later because of lack of oxygen. 19 Q I may have gotten myself confused, doctor. I may 20 have confused you. I'm not sure which I did here. 21 Thiopental sodium -- I think I misspoke. The 22 thiopental sodium in a five-gram dose will cause 23 unconsciousness -- 24 A Yes. 25 Q -- cause the individual to go apneic? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2336 1 A Well, yes, okay. Yeah, you were asking me about 2 the pancuronium and I think perhaps you meant the sodium 3 pentothal. 4 Q I misspoke. 5 A Yes. Well, I was just answering your questions as 6 you asked them, but the sodium pentothal in and of itself 7 given at five grams will cause unconsciousness as I said, 8 within a matter of seconds and simultaneous apnea or 9 complete cessation of breathing at the same time and that 10 will persist then. 11 MR. NUNNELLEY: Judge, if I may have just a moment 12 to find a exhibit or two, Your Honor? 13 (There was a pause.) 14 BY MR. NUNNELLEY: 15 Q Doctor Sperry, let me tender a document to you 16 that's in evidence and Defense Exhibit 5. 17 MS. KEFFER: Could you tell me which one that is? 18 MR. NUNNELLEY: It's the toxicology report, sorry. 19 MS. KEFFER: Thank you. 20 BY MR. NUNNELLEY: 21 Q Doctor Sperry, I'm also going to give you a 22 document that's in evidence as Defendant's Exhibit Number 7 23 titled the Postmortem Examination of the Body of Angel Diaz. 24 If you could look at that too, sir. 25 A Okay. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2337 1 MR. NUNNELLEY: Let me take this back. 2 Madam clerk, here's Joint 2 back. 3 THE WITNESS: Okay. 4 BY MR. NUNNELLEY: 5 Q Based upon your review of those exhibits, what 6 did, just to summarize here, the examining pathologist 7 determine was the cause of death? 8 A He determined the cause of death to be injection 9 of lethal toxins. 10 Q I'm also giving you a joint exhibit that's 11-A, 11 which is a series of photographs from the Diaz autopsy. 12 We'll get to those in just a minute. 13 Can you tell from your review of the Diaz 14 autopsy and toxicology reports, how long after the execution 15 the blood that was used in the toxicology screens was drawn? 16 A The autopsy itself began on 14th of December of 17 2006 at 0830 hours and it does not -- I do not know 18 specifically what time the blood was drawn, although that 19 would be most probably one of the initial parts of the 20 autopsy examination; somewhere shortly after 8:30, around in 21 there. And the death occurred on, I believe the autopsy was 22 on the 14th, so this would have been the previous night. 23 So, beyond that I don't know exactly what the 24 time of death specifically was for Mr. Diaz, but there was a 25 time period of at least a number of hours between when he OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2338 1 died and when the blood was drawn. 2 Q Is it fair to say at least 12 hours and more like 3 14 or 15 passed before the blood was drawn? 4 A Well, again, it all depends on exactly when he was 5 declared dead, but that would be most likely because the 6 autopsy was done again the next morning. 7 Q Okay. Do you have an opinion as to the accuracy, 8 rather the efficiency, if you will, of blood drawn that long 9 after death in reflecting on examination the level of 10 thiopental sodium present in the person at the time they 11 died? 12 MR. DUPREE: I'm going to object on the predicate 13 grounds. I don't think a proper predicate has -- 14 THE COURT: Overruled. You may answer. 15 THE WITNESS: Well, yes, blood is drawn from a 16 peripheral site especially say from the groin area or 17 internally from large vessels away from the heart. 18 Then the level of sodium pentothal that is found in 19 analysis of those specimens would then be, I would say, 20 reflective of basically exactly what the level was in 21 their blood at the time they died. 22 BY MR. NUNNELLEY: 23 Q Are you familiar with the redistribution effect of 24 thiopental sodium? 25 A Yes. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2339 1 Q And thiopental sodium is fat soluble, lipid 2 soluble drug; is it not? 3 A Yes. 4 Q It gets into the fat cells and then releases 5 itself and -- 6 A Over a period of time especially with heart blood 7 this is true. 8 Q Based upon your review of the Diaz autopsy 9 toxicology reports, do you have an opinion as to the cause 10 of his death? 11 A Yes. 12 Q And what do you think it is, sir, or what is that 13 opinion? 14 A Well, that he died basically -- well, Doctor 15 Hamilton said injection of lethal toxins and I agree with 16 that, that he died as a consequence of having a lethal level 17 of sodium pentothal or thiopental in his blood specifically, 18 and also there are clearly lethal levels of the pancuronium 19 in his system as well. So, the combination of those two 20 certainly are responsible for his death. 21 Q And even 12 or 14 hours after he died the level of 22 thiopental sodium in his blood is still lethal? 23 A Yes. 24 Q Doctor Sperry, let me ask you this. If there are 25 witness reports from the execution indicating that Mr. Diaz OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2340 1 was breathing in the sense that witnesses were able to see 2 his chest rise and fall, mouthing words, moving his head, 3 looking about, would those observations as reported by the 4 witnesses be consistent or inconsistent with Mr. Diaz having 5 been paralyzed by the administration of pancuronium bromide? 6 A Well, that would be completely inconsistent. He 7 could not have done any of those actions, whether 8 voluntarily or involuntarily, if he was paralyzed by the 9 pancuronium bromide. 10 Q Now, having reviewed the autopsy reports and the 11 toxicology reports and I also left a stack of photographs up 12 here for you and these are, let me find the exhibit number, 13 Joint Exhibit 11-A, I believe. Wait a minute. Joint 14 Exhibit 11 and there's a series of photographs. 15 If you want to look through those right 16 quickly, Doctor Sperry. 17 (There was a pause.) 18 THE WITNESS: Okay. 19 BY MR. NUNNELLEY: 20 Q In review of those photographs did you find or 21 review the photographs that depicted the IV sites in 22 Mr. Diaz's arms? 23 A Yes. 24 Q From looking at the photographs contained in that 25 exhibit, which is Joint Exhibit 11, I believe, are you able OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2341 1 to tell what occurred with the IV lines? 2 A Yes. 3 Q What happened? 4 A Both of the intravenous cannula or the basically 5 the little tubes that are placed or meant to be placed 6 inside the vein when an IV line is established, had instead 7 perforated or gone through the vein with the end of the 8 cannula or the end of the little small tubing being outside 9 of the vein and into the soft tissue around the vein itself. 10 So, in other words, of the two intravenous 11 lines that were established in his right and left arms, 12 neither of them actually was inside of the vein, but had 13 perforated through the veins and then had the end of the 14 tubing or the end of the cannula, the port, inside the soft 15 tissue outside of the vein on each side. 16 Q Is it possible to tell when based upon the medical 17 evidence; in other words, the evidence from the autopsy, the 18 photographs, is it possible to tell when the cannulas found 19 their way outside of the vein? 20 A Well, given the nature of these cannulas and their 21 location as documented in the autopsy I think it is, yes. 22 Q What do you think happened, doctor? 23 A I think that when the intravenous lines were 24 placed, that is, were put into the right and left forearm 25 areas of Mr. Diaz, during each of those times where the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2342 1 lines were placed, the cannula is actually plastic, it's 2 very soft and flexible. You can't poke through anything 3 with it, but the cannula itself is reinforced with a hollow 4 needle that is sharpened on the end and is designed to go 5 through the skin and into the vein. And once the needle 6 where the cannula is in the vein and the person, the 7 technician or nurse or whoever it is that's placing the line 8 sees that there's blood coming back, then the cannula's 9 held, the plastic cannula is held steady and the needle is 10 removed leaving the cannula itself within the vein. As I 11 said, it's very soft and flexible. 12 So, seeing that both of the cannulas 13 themselves had gone through the veins on each side and into 14 the soft tissues around the vein, this tells me that the 15 point or the time at which the perforation occurred and 16 actually the cannulas were pushed through the vein into the 17 soft tissue occurred during the actual placement of the 18 lines. 19 Q Would you have expected to -- for there to be any 20 observable effects, if you will, from the cannulas being in 21 the wrong place? 22 A It depends on -- well, there might and there might 23 not. It depends on where the end of the cannula is 24 initially with respect to the vein wall itself. For 25 instance, what I'm trying to say is, if the cannula is OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2343 1 pushed all the way through the vein and is, say just for 2 discussion purposes, a half inch beyond the outside wall of 3 the vein, then what would be observed is inadequate blood 4 return. That is, when the needle is removed no blood comes 5 back out of the tube to the observer, the person who's 6 placing the line, because the end of the tubing is far 7 outside the vein. 8 However, if the end of the tube is just 9 barely outside the vein or even has just begun to perforate 10 the vein wall but not yet completely perforated the vein, 11 then there could be observably good blood return and what is 12 done procedurally is once the blood return out of the 13 cannula end is seen visually, then the cannula itself is 14 advanced or pushed into the vein for the whole length of the 15 tube. And at that point in time it certainly could go 16 farther out, outside the wall of the vein than what it was 17 initially. 18 So, in other words, it's a process of moving, 19 of placing the cannula after the needle is pulled out and 20 initially the observer could actually see good blood return 21 but then when the cannula's pushed farther, it actually 22 would go on through the hole in the other side of the vein 23 that it already started to create. 24 Q Okay. Let me ask you this. Now, if assuming -- 25 let's use the second scenario just for because it's the one OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2344 1 I remember. Assuming you get a good blood return, then you 2 advance the cannula or withdraw the needle and is the needle 3 over the cannula or is the cannula over the needle? 4 A The cannula is over the needle. The needle goes 5 through the center of the cannula so you could pull the 6 needle out and the cannula stays. 7 Q Okay. Now, you've gotten a good blood return but 8 we're right at the edge of the vein and just about to poke 9 through it. 10 A Yes. 11 Q We move the cannula in just a little bit and poke 12 on through the vein. Okay? 13 A Yes. 14 Q Then when you hook an IV bag up to it of a 15 thousand CCs of saline and start that bag running, what are 16 we going to see, if anything, at the site of the IV? 17 A What you're going to see, depending on how fast 18 the fluid runs in, is the initiation of swelling and that's 19 really the first sign, is that there is swelling and 20 especially in the lighter-skinned individual you may also 21 see some localized bruising or discoloring from the leakage 22 of blood from the perforated vein around the area, but 23 that's what you would see. Essentially, the swelling is the 24 hallmark of a perforated vein in an IV situation. 25 Q Is the swelling something that comes up relatively OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2345 1 quickly or does it take time or does it just depend? 2 A Well, it depends on how fast the fluid is running 3 in. I mean, I have personally inserted IVs where I was 4 watching them like a hawk and the first several minutes 5 everything was fine, but then I began to detect swelling. 6 In others the swelling can occur within seconds, it can be 7 almost immediately apparent. So, there could be a time 8 delay, again depending on how fast really the fluid is 9 running in and also the person, the individual person 10 themselves. Someone who has, you know, say beefy arms or 11 relatively thick male arms is going to be different than an 12 80 year-old lady with tiny, skinny arms. You're going to be 13 able to see differences in an elderly person say much 14 quicker than in a younger person. 15 Q And if the thiopental sodium is going into an IV 16 that's perforated the vein, that would be a subcutaneous 17 introduction of the drug, correct? 18 A Subcutaneous or at least extravascular or soft 19 tissue, you know, either one of those. Any one of those 20 really being the same. 21 Q Will the thiopental sodium still have its 22 anesthetic effect even if it is not going into the vein? 23 A Yes. Ultimately it will, yes. 24 Q Would the effect be delayed? 25 A Yes. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2346 1 Q Would the thiopental sodium going into the 2 condemned outside of the vein take effect before pavulon 3 that was also injected in the sequence we have discussed 4 through the same IV into the same individual? 5 A Yes. 6 Q Doctor Sperry -- I'm going to get the pictures 7 back first and the post-intox. Stay out of trouble with the 8 clerk today. 9 Now, Doctor Sperry, I'm going to show you a 10 box that's been marked in evidence as State's Exhibit 1. 11 Would you review the contents of this box, 12 sir? 13 A (The witness complied.) Okay. 14 Q Do the items contained in State's Exhibit 1 appear 15 to be standard medical equipment? 16 A Oh, yes, all of it is. 17 Q Are these items readily available from the medical 18 supply store? 19 A Oh, yes. 20 Q Or supply house, whatever the proper term is. 21 A Oh, yes. 22 Q None of these items are homemade, home fabricated; 23 anything like that? 24 A Oh, no, no, not in the least. These are standard 25 medical-type equipment that frankly, I mean, I could order OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2347 1 every bit of this over the phone this afternoon if I wished 2 from a medical supply catalog. 3 Q Okay. Now, looking at what's on its packaging 4 labeled as primary IV set. What is this? 5 A This is the attachment and the associated tubing 6 that is meant to be placed inside this IV bag of saline 7 solution. This is sodium chloride, which is normal salt 8 solution, which is similar in salt content to our blood. 9 And so this primary IV set actually is meant 10 to be placed or pushed up in through an opening here and 11 then the fluid runs out into -- actually, this thing is 12 called a drip chamber, so you can actually see it drip out 13 of the bottom and finally run into the tubing that goes on 14 to the patient. 15 Q Is this a standard length IV set? 16 A Yes, this is basically a basic IV set that I would 17 say is standard in every hospital in the country. 18 Q Doctor Sperry, for convenience purposes, we've got 19 to demonstrative aid of some of the same objects. I need to 20 kind of keep them separate from what we have in the 21 demonstrative aid, which is labeled the State Demonstrative 22 Aid Exhibit 1. 23 If you would step over here, I want to keep 24 them separated so we're not mixing something here. 25 A Okay. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2348 1 THE COURT: I thought you said that brown box was 2 Number 1? 3 MR. NUNNELLEY: This is 1 for ID and 1 in 4 Evidence. This is labeled State Demonstrative Aid 5 Exhibit Number 1 for Identification. I don't know how 6 that happened, Judge. We may need to renumber this 7 thing. I don't know. What do we want to do? 8 THE CLERK: There was a second exhibit you wanted 9 it marked as a demonstrative aid as Number 1. 10 THE COURT: So, that's a demonstrative aid exhibit 11 this is an exhibit in evidence? 12 THE CLERK: Yes, sir. 13 MR. NUNNELLEY: Yes, sir. 14 THE COURT: Okay. 15 BY MR. NUNNELLEY: 16 Q Doctor Sperry, looking at what's in the 17 demonstrative aid exhibit and I once you're done, let me 18 know. 19 A (The witness complied.) Okay. 20 Q Do the items contained in the demonstrative aid 21 box appear to be the same as the comparable items contained 22 in State's Exhibit 1? 23 A Yes. 24 Q The difference being the ones in the demonstrative 25 aid have been unpackaged and to some degree assembled. Is OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2349 1 that a fair way to put it? 2 A Yes. 3 MR. NUNNELLEY: Judge, I'm going to go through 4 this kind of step by step here. 5 BY MR. NUNNELLEY: 6 Q Now, with the 60cc syringe in the demonstrative 7 aid there's a blunt needle affixed to the end of the 8 syringe; is that correct? 9 A Yes. 10 Q And in the State's Exhibit 1 each of those items 11 being the 60cc syringe and blunt needle are packaged 12 separately? 13 A Yes. Well, the syringes themselves, the two 14 syringes in here, do not have needles attached but there is 15 then what appears to be a blunt -- yes, a blunt needle here 16 which is separate but that's the way many of them would come 17 with the syringe so that you can put whatever needle you 18 want on the syringe. You're not limited by what the 19 packaging dictates. 20 Q Okay. And the IV start set appears to have 21 another piece of tube that goes in a Y off it. What is 22 that, sir? 23 A That is so that medications, drugs or anything can 24 be injected separately into a line that then joins the set 25 that is coming down from the IV bag and then runs down into OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2350 1 the patient. 2 Q Is this a typical medical configuration? 3 A Oh, yes. Yes, this is a oftentimes called a 4 secondary port or secondary access port, so that anyone can 5 administer drugs and medications separately from the IV 6 tubing itself but yet have the flow join the flow that's 7 coming out of the IV bag and then go into the individual. 8 Q Okay. So, the IV is still running as the drugs 9 are being injected into the port on the extention? 10 A Yes. 11 Q Okay. Now, on the end of the IV set is a little 12 white, soft, springy thing. What is that? 13 A That is the actual IV cannula itself. That is 14 when in its original packaging as in Exhibit 1, there's 15 actually a needle that is going down the center. And here 16 the needle obviously has been removed leaving the cannula or 17 just the tubing itself and this is actually the tubing that 18 would be inside the patient's vein. 19 Q Okay. Again, is that a standard piece of medical 20 equipment? 21 A Oh, yes. 22 Q Standard length? 23 A Yes. 24 Q Is the extention that's on here a standard length 25 also? I believe you called it the secondary port? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2351 1 A The secondary port, yes. And you can adjust. I 2 mean, it's made so that you can attach, you know, and even 3 make it longer if you wished depending on what the 4 theraputic need or what the desire is, but it's just a 5 secondary attachment so that however long it is, whatever is 6 injected still will flow into the main IV line that goes 7 down and then into the patient through the cannula that is 8 in the vein. 9 Q Okay. Let's get these separated back up, doctor, 10 so we don't mix them up here. 11 A Oh, no. 12 MR. NUNNELLEY: Judge, I know the Court had some 13 questions earlier. Did I cover those with this so far? 14 THE COURT: Sure. 15 MR. NUNNELLEY: Okay. 16 Judge, I'm returning both of these exhibits to the 17 clerk. 18 BY MR. NUNNELLEY: 19 Q Doctor Sperry, these -- again, I believe we 20 discussed this, but this is common medical equipment; is it 21 not? 22 A Oh, it's used, you could go to the hospital here 23 in this town right now and find every bit of that. Any 24 hospital in the country, actually many doctor's offices 25 would have all of that. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2352 1 Q Doctor, in review of your -- you've reviewed the 2 Florida procedures for lethal injection effective on May 3 nine; have you not? 4 A Yes, I have. 5 Q In connection with the procedures, did you notice 6 that there has been a process added in where the level of 7 consciousness of the inmate is assessed prior to the 8 injection of the pavulon? 9 A Yes. 10 MS. KEFFER: Objection, Your Honor. 11 THE WITNESS: Excuse me. 12 MS. KEFFER: Doctor Sperry hasn't been qualified 13 as an expert in lethal injection protocols. 14 THE COURT: Overruled. You may answer. 15 BY MR. NUNNELLEY: 16 Q Doctor Sperry, would it be an appropriate way to 17 determine whether someone is responsive or not to approach 18 them, place your hands on their shoulders and shake them and 19 call their name? 20 MR. DUPREE: Your Honor, I object -- 21 MR. NUNNELLEY: Judge, which one of these lawyers 22 is handling this witness? I'm getting tag-teamed over 23 here. 24 THE COURT: Well, overrule the objection. 25 BY MR. NUNNELLEY: OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2353 1 Q Would it be appropriate to assess whether or not 2 someone is responsive or unresponsive to approach them, put 3 your hands on their shoulder, shake them and call their 4 name? 5 A Yes. That is a very basic neurologic assessment 6 of consciousness and responsiveness. 7 Q Are lay people taught to perform that sort of 8 consciousness assessment? 9 A Oh, yes. I mean, any type of paramedic, EMT, 10 anyone or nurse, LPN, anybody like that that has any type of 11 patient contact would have that kind of basic knowledge. 12 That's extremely fundamental. 13 Q Is that taught in CPR? 14 A Yes. 15 Q And CPR is intended for everybody, isn't it? 16 A Oh, yes. That's again a basic way to assess 17 whether or not someone can respond to you. 18 Q Okay. Doctor Sperry -- 8-D, the death house 19 photographs. Lady or gentleman, whichever. 20 I'm showing you Exhibit 8, State's Exhibit 8. 21 If you would like look through those photographs, sir, just 22 for a moment and I'll represent to you that that's the death 23 house at the Florida State Prison after its renovation. 24 (There was a pause.) 25 A Okay. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2354 1 Q Doctor, I'll represent to you that those 2 photographs are Florida's death house, you know, after 3 recent renovations. 4 Have you ever seen Georgia's death house? 5 A Yes. 6 Q How would you compare what you've seen in these 7 photographs to what you've seen at the Georgia facility? 8 MS. KEFFER: Judge, I'm going to object. This is 9 beyond this expert's scope of expertise. He's not been 10 qualified as an expert in lethal injection protocols or 11 in lethal injection chambers. 12 THE COURT: Overruled. You may answer. 13 THE WITNESS: Well, it's very similar. The actual 14 location of where the intravenous tubing though enters 15 into the actual death chamber in Georgia's death house 16 is actually located farther away than in the 17 photographs here of the death chamber for Florida. 18 And beyond that I would say the only substantive 19 difference is that the, in Georgia where the witnesses 20 sit are actually in wooden pews rather than chairs, but 21 the viewing area I would say in the Florida death house 22 is actually a little wider. It encompasses I would say 23 a bit more of the room, but I think the main difference 24 that I perceive is that as I said, in Georgia the 25 location of where the IV tubing actually comes into the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2355 1 room is actually off over to the side. It's at a 2 greater distance away from the gurney where the inmate 3 is strapped in as compared to what Florida's death 4 house illustrates. 5 BY MR. NUNNELLEY: 6 Q So, from what you can tell in looking at the 7 pictures, does that appear to give a pretty straight shot 8 for the IV lines? 9 A Yes, it's immediately coming in at the head of the 10 inmate, which really given the location and the orientation, 11 is actually what one would see with and anesthesiologist. 12 If an anesthesiologist were taking care of a patient, this 13 is where the anesthesiologist would be positioned, at the 14 head of patient with all of the IV equipment around and 15 behind him or her. 16 Q Of course there wouldn't be a wall there. 17 A There would be not be a wall but the distances 18 really between the IV equipment and the patient would be 19 very similar. 20 Q Okay. Now, doctor, let me get you to -- find the 21 one I'm looking for right quick here. If I can refer you to 22 8-Y and 8-BB. Take a look at those. 23 Did those photographs in your opinion reflect 24 adequate room to work around the gurney for the individual 25 or individuals establishing the intravenous lines? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2356 1 A Yes. Yes, I would say so. 2 Q Okay. Thank you, sir. 3 A (Handing.) 4 MR. NUNNELLEY: Spill that water yet. 5 THE WITNESS: I'm watching you. 6 BY MR. NUNNELLEY: 7 Q Doctor, let me ask you this. How common is it in 8 a hospital setting or clinical setting to encounter problems 9 with intravenous lines? 10 MS. KEFFER: Objection. Your Honor, again, he's 11 not been qualified in that regard. There's no 12 predicate laid for what he knows is common in hospital 13 settings and clinical settings. He's a forensic 14 pathologist. That's how he's been qualified. 15 THE COURT: You want to ask him for his experience 16 in that regard? 17 BY MR. NUNNELLEY: 18 Q Doctor, what is your experience in -- well, in the 19 practice of medicine with regard to IV lines and their 20 failure rates and success rates? 21 A All right. As far as the establishment of the IV 22 lines, my experience is that during certainly my training as 23 a medical student and then during my internship and my two 24 years in the public health service, I established I can't 25 tell you how many countless of hundreds of IV lines. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2357 1 In fact, on the surgical services that was 2 basically the nighttime duty was to fix IV lines that had 3 problems or restart IVs in patients, start them in emergency 4 room situations. I mean, I can't tell you how many hundreds 5 of times I did that. I haven't done it since I've been a 6 pathologist but certainly I did it hundreds of times during 7 my training, as I said, when I was in the public health 8 service because I was a clinical physician. 9 Now, as far as failure rates, I mean, no IV 10 lasts forever and due to lots of different variables; the 11 patient variables, the variables of the individual placing 12 the lines, their experience, technique and ability, things 13 like that. There's always a failure rate of IVs and because 14 not everyone is perfect. They cannot -- it's impossible to 15 make every single IV that you put in be perfect and function 16 fine. 17 And again, it depends also on the patients 18 too. That there are patients with delicate or fragile veins 19 or it may be difficult to find veins. All of those things 20 increase the likelihood of a failure of an IV line. So, 21 it's -- there's always a failure rate depending on -- well, 22 there always is, no matter what. 23 Q Let me ask you this. On you CV on page six and 24 under the heading teleconferences, you list a subject or a 25 topic, "The investigation and autopsy examination of deaths OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2358 1 related to anesthesia and theraputic misadventure." 2 A Yes. 3 Q Is that relevant to your knowledge, training and 4 expertise with relation to IV lines and their use, failure, 5 placement, etcetera? 6 A Yes, that is one of the aspects of complications 7 that can potentially cause death in a patient during a 8 theraputic procedure or anesthesia. 9 Q In fact, didn't thiopental sodium when it first 10 was introduced as anesthetic have a rather high fatality 11 rate; did it not? 12 A It did, because doctors that were administering 13 the drug did not recognize as frequently as they should have 14 that they could radically slow or even stop the breathing of 15 the patients that they were attempting to sedate with the 16 sodium penithol and there were a number of, a large number 17 unfortunately, of inadvertent deaths or serious incidents of 18 brain damage because of lack of understanding or 19 appreciation of the breathing suppression effects that 20 sodium penithol has. 21 Q So, now doctor, back to the question, I guess. 22 It's not uncommon to have a problem starting 23 and IV, is it? 24 A Not at all. 25 Q It's not uncommon for an IV to infiltrate some OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2359 1 time after it's established, is it? 2 A Oh, not at all. It's extremely common. 3 Q But yet medical professionals still use as 4 intravenous lines to do what they have to do in patient 5 care, don't they? 6 A Oh, absolutely, hundreds of thousands of times a 7 day. 8 Q Doctor, have you ever seen an execution by lethal 9 injection? 10 A Yes, I witnessed two. 11 Q In what State, sir? 12 A In Georgia. 13 Q Are the drugs that are employed in an execution in 14 Georgia the same as the drugs that are used in Florida? 15 A Yes, the drugs are the same. 16 Q Are the doses the same? 17 A The doses of the sodium pentothal in Georgia is 18 two grams rather than five, and the dose of the pavulon is 19 50 milligrams and then there's 120 milliequivalent of 20 potassium chloride that's used. 21 Q So, Georgia, to sum up the numbers here, Georgia 22 uses a smaller dosage than Florida? 23 A Yes. 24 Q Do you have an opinion as to whether or not the 25 Georgia dose creates a humane death for the inmate? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2360 1 MS. KEFFER: Objection. Relevance. 2 THE COURT: Overruled. You may answer. 3 THE WITNESS: Yes, the dosages of those three 4 drugs I think are completely appropriate with respect 5 to resulting in a humane and painless death. 6 BY MR. NUNNELLEY: 7 Q Doctor, you've reviewed the photographs, the Diaz 8 autopsy, right? You remember seeing that? 9 A Yes. 10 Q And in the autopsy report itself it reported large 11 blisters or bullae on the arms. Do you recall that? 12 A Yes. 13 Q What significance, if any, can you attach to that? 14 A Those, first of all, the blisters or the bullae 15 along with the swelling came from the infusion of fluid into 16 the soft tissues of the arm and going not justed under the 17 skin but diffusing through the soft tissues of the arm and 18 also, potassium chloride in and of itself in large 19 quantities is relatively caustic to tissues. 20 In clinical situations where you're treating 21 someone, as I mentioned some time ago, say a diabetic who is 22 depleted of potassium, actually the amount of potassium that 23 you may infuse is usually something like about 20 24 milliequivalent diluted in a liter of fluid over the course 25 of 12 or 14 hours. So, it's given very, very slowly OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2361 1 intravenously because it has a toxic effect but also in 2 large quantities, concentrated quantities if it goes into 3 the soft tissues it will have a caustic effect on the skin 4 and will produce blisters like this. 5 This type of or this quantity of dosage that 6 is used during the part of a lethal execution or lethal 7 injection execution is many, many, many times the quantity 8 that would ever be given a patient in a clinical situation 9 and you would never, ever give this kind of dosage, not only 10 all, to a living patient but also at one time. 11 So, the effect of causing those blisters on 12 the arms and the bullae or the fluid-filled bubbles, that is 13 I believe the caustic effect of the concentrated potassium 14 chloride injected into the tissues as the last part of the 15 drugs that were injected. 16 Q You have any opinion as to whether or not Mr. Diaz 17 suffered, felt that happening? 18 A My opinion, I don't think that he felt that happen 19 because that's the last of the drugs in the sequence and he 20 had already been given the sodium pentothal, which is what 21 would have rendered him in unconscious and insensate. 22 MR. NUNNELLEY: No further questions, Your Honor. 23 I don't know if you want to take a break before we 24 start cross. 25 MS. KEFFER: I need a quick -- OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2362 1 THE COURT: Sure, let me know when you're ready. 2 (Break was taken.) 3 THE BAILIFF: All rise. Please be seated. 4 THE COURT: Proceeding with the last witness. 5 MR. NUNNELLEY: Judge, just for the record, this 6 witness will be the last witness for the State today. 7 THE COURT: Okay, thank you. 8 CROSS-EXAMINATION 9 BY MS. KEFFER: 10 Q Good afternoon. 11 A Hello, ma'am. 12 Q Doctor Sperry, you were contacted by Mr. 13 Nunnelley with regards to the Diaz execution the day after 14 the execution; is that correct? 15 A Yes. 16 Who are you? What's your name? 17 Q Suzanne Keffer. 18 A Oh, okay, good. Thank you. 19 Q We've spoken on the phone before. 20 A Okay. I just hadn't -- it's nice to associate a 21 name with a face. Okay, thank you. 22 Q And so, you were first contacted by Mr. Nunnelley 23 the day after Mr. Diaz's execution? 24 A Yes, I was. 25 Q And that was with regards to the execution of OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2363 1 Mr. Diaz? 2 A Yes. 3 Q And at that time had you seen an autopsy report 4 yet? 5 A Oh, no. 6 Q And even at that time did you have an opinion as 7 to what had occurred in Mr. Diaz's execution? 8 A Yes, based upon what Mr. Nunnelley told me with 9 respect to especially the timeframe or the length of time 10 that it took to declare Mr. Diaz dead from the execution 11 process I had an opinion. 12 Q And what was your opinion even at that time prior 13 to the autopsy report? 14 A My opinion that the far and away the most probable 15 reason that the execution time had been prolonged was 16 because the IV lines or the cannula had not been in the 17 veins but had been somehow or another outside or adjacent to 18 the veins. 19 Q And do you have an opinion as to whether liver 20 disease would have caused the prolonged execution of 21 Mr. Diaz? 22 A Whether liver disease would have? I don't think 23 it would have, no. 24 Q Okay. And what do you base that opinion on? 25 A I don't see a reason why liver disease would OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2364 1 really play a role in the anesthetic effect of the pavulon 2 itself because -- excuse me, not the pavulon, the sodium 3 pentothal especially, because this is a process of effecting 4 the respiratory centers in the brain and the consciousness, 5 not really the metabolism and elimination of the drug. 6 Q And is that something that most doctors familiar 7 with these drugs would agree with? 8 A Well, I don't know whether they would agree with 9 or not but it depends on again, the purpose of what you're 10 using it for. Certainly, liver disease effects of 11 metabolism and prolongs the elimination of many drugs that 12 are metabolized in the liver, but it does not affect the 13 immediate effects that those drugs are going to have, say on 14 the brain or consciousness. 15 Q Therefore, it would not have prolonged Mr. Diaz's 16 execution? 17 A No, it would not have. If he was a say, a 18 surgical patient that had been given that drug to 19 anesthetize him for surgical purposes, liver disease 20 would've prolonged the elimination of the drug and thus, he 21 would have been -- he or a patient like him, would have been 22 sedated for a longer period of time. 23 Q Now, you stated on direct examination that you 24 reviewed the autopsy report of Mr. Diaz? 25 A Yes, ma'am. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2365 1 Q And the toxicology report of Mr. Diaz? 2 A Yes, ma'am. 3 Q You also reviewed the autopsy photographs? 4 A Yes. 5 Q I think you stated today too that you had reviewed 6 the May 9, 2007 protocols for Florida lethal injection 7 process? 8 A Yes, I have seen that. 9 Q Have you reviewed any other documents? 10 A Well, I've seen previous protocols that Florida 11 has had for lethal injection and I think that's, at least 12 with respect to today, that's probably about all. And then 13 I have obviously at other times reviewed Georgia protocols. 14 Q You haven't reviewed any other information with 15 regards to the execution of Mr. Diaz? 16 A Oh, well, maybe specifically you want to ask me, 17 you know, what -- ask me specifically if you would just so 18 it will be clear. 19 Q Okay. Have you reviewed any of the testimony of 20 these proceedings that have occurred in this circuit court? 21 A No, I've not reviewed any of the specific 22 testimony, no. 23 Q Okay. So, you haven't reviewed transcripts from 24 May 18th of this year? 25 A Correct. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2366 1 Q May 21st of this year? 2 A Correct. 3 Q June 18th of this year? 4 A Correct. 5 Q June 19th of this year? 6 A Correct. 7 Q Or any of the testimony from this week from 8 July 17th through today? 9 A Correct. I have not reviewed any testimony from 10 any of those dates. 11 Q And you've not reviewed the testimony from the 12 Governor's Commission on Lethal Injection? 13 A I've not reviewed the testimony itself. I've 14 reviewed the report that was generated but I've not reviewed 15 any of the actual testimony associated with the generation 16 of that report. 17 Q Okay. You did review the report from the 18 Governor's Commission on Lethal Injection? 19 A Yes. 20 Q And when was it that you reviewed that report? 21 A Actually, I was given that around March 6th of 22 2007. 23 Q Okay. And have you reviewed the Department of 24 Corrections response to that report? 25 A No, I've not reviewed a document such as that. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2367 1 Q Okay. And do you have any specific knowledge as 2 to the sequence or timing of the administration of the 3 lethal chemicals of Mr. Diaz's case? 4 A Okay. Well, that's a double question. 5 I guess I wouldn't say that I necessarily 6 have independent knowledge except that I would expect that 7 the sequence of the administration would be in the 8 conventional way that the drugs are designed to be 9 administered with the sodium pentothal first, followed by 10 the pavulon and potassium chloride. Now, it there's any 11 variance from that that occurred in Mr. Diaz, I'm not aware 12 of it. And I am not aware specifically of the timing of 13 each of the injections as they took place. 14 Q Okay. Now, you said that the assumption you're 15 making would be based on your review on the protocols; would 16 that be correct? 17 A Well, yes, that is -- the protocols that utilized 18 these three drugs specify that exact sequence of injection 19 for the purposes of achieving, well, a humane execution 20 basically, because of the effects of each the drugs and the 21 purposes for which those drugs are designed in the execution 22 process. 23 Q Okay. You don't have any specific knowledge as to 24 the timing of those drugs in Mr. Diaz's case? 25 A Correct. I do not have specific knowledge as to OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2368 1 exactly when during the execution sequence in Mr. Diaz that 2 each of those drugs were administered. 3 Q Okay. And you have not reviewed the sequence in 4 which those drugs were administered? 5 A Well, I've not received any documentation that 6 independently sets forth the sequence as to how they were 7 specifically administered if it's in any variance from what 8 the protocols would specify. 9 Q Okay. Based on the fact that -- let me -- on 10 direct I believe you stated that the sodium thiopental -- in 11 Mr. Diaz's case that the sodium thiopental would have taken 12 effect before the pavulon; is that correct? 13 A Yes. 14 Q Okay. And what are you basing that on? 15 A Because that drug is given first and even given 16 in, infused into the tissues around the veins, a 17 subcutaneous and soft tissues in and around the veins and on 18 the surfaces of the muscles, it's going to be absorbed 19 relatively rapidly into the system. So, although it's not 20 absorbed as rapidly as it would be intravenously because of 21 the difference in delivery, nonetheless, as soon as it 22 enters the tissues it's going to be absorbed in the small 23 blood vessels and thus, into his system. 24 Q Okay. Let me just make sure that I'm clear on 25 that. It's because it was -- you're assuming that it was OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2369 1 the first one that would have been injected? 2 A It should have been. If it was not, then that 3 would be at variance with the protocol. 4 Q Okay. And again, you are not aware of the time or 5 the sequence, correct? 6 A Right. Although I don't -- 7 Q Based on the fact that the chemicals were being 8 injected into the soft tissue, isn't it possible that 9 Mr. Diaz could have been conscious because the sodium 10 thiopental had not yet been absorbed sufficiently to cause 11 unconsciousness by the time the pancuronium bromide had been 12 injected? 13 A Okay. Now, just to make sure because you didn't 14 let me finish my previous answer. Because as I was about to 15 say, if the pancuronium had been administered first, he 16 would have been paralyzed and would not have been able to 17 move at all and thus, any signs of movement, breathing, 18 anything like that could not have occurred. 19 So, now in response now to the question that 20 you asked, is it possible that based upon the injection of 21 the sodium pentothal into the soft tissues outside the 22 veins, could he have been conscious at the time or at least 23 to some extent at the time the pavulon was injected and the 24 answer is yes. 25 Q Okay. And then as a result because he was OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2370 1 conscious, it's possible that Mr. Diaz could have felt the 2 effects of not being able to breathe from the pancuronium, 3 correct? 4 A It is possible. 5 MS. KEFFER: I have nothing else. 6 REDIRECT EXAMINATION 7 BY MR. NUNNELLEY: 8 Q Doctor Sperry, you're familiar with the 9 pharmacology of thiopental sodium and pavulon; are you not? 10 A Yes. 11 Q Based upon your knowledge-- 12 MS. KEFFER: Objection, Your Honor. He hasn't 13 been qualified as an expert in pharmacology. There's 14 been no predicate laid for this line of questioning. 15 THE COURT: Overruled. You may proceed. 16 BY MR. NUNNELLEY: 17 Q Based upon your knowledge of those two drugs and 18 their actions on the human body, Doctor Sperry, if we assume 19 that thiopental sodium is injected subcutaneously, as it was 20 apparently in the Diaz execution, five grams of thiopental 21 sodium were injected followed by a saline flush and then 22 pavulon is injected into the same IV site, do you have an 23 opinion as to whether or not the thiopental sodium would 24 exercise its effect on Mr. Diaz before the pavulon took 25 effect and paralyzed him? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2371 1 A Yes, the thiopental would exert its effect. It 2 would be in the process of being absorbed into the blood 3 stream and being delivered to the brain and exert its 4 sedative effect and, you know, so yes, it would produce that 5 as soon as it starts to be absorbed. 6 Q And is that opinion that you have just stated 7 consistent with the antidotal evidence from the witnesses to 8 the execution which state that Mr. Diaz was observed 9 breathing and moving his mouth? 10 A Yes. 11 Q Do you have anything based upon your review, 12 anything that you're aware of to suggest that the drugs that 13 were administered in the Diaz execution were not 14 administered in the order specified in the protocols 15 specifically thiopental sodium, pavulon and potassium 16 chloride? 17 A No, I do not have any information nor have I ever 18 been given any information that tells me that the drugs were 19 delivered in any other sequence than what you described and 20 what I've stated. 21 Q Doctor, let me ask you this. Based upon your 22 review of the Diaz autopsy reports, the toxicology reports 23 and the photographs, is it possible for the first drug, the 24 thiopental sodium, to have been injected subcutaneously and 25 for the pavulon, the second drug, to have been injected OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2372 1 intravenously? 2 A No. No, that does not make any sense. And the 3 pavulon especially, I think perhaps the most important 4 aspect is that the pavulon, when it would be absorbed in the 5 system sufficiently enough to cause its effect, there would 6 be complete paralysis of Mr. Diaz. That is, he could not 7 have been breathing, he could not have moved, he could not 8 have made any mouthing sort of motions, anything like that. 9 And that -- actually, the witnessing of those sorts of 10 movements tells, you know, quite objectively that the 11 pavulon, even if it had been injected, had not taken any 12 effect. If it had taken effect, physiologically he would 13 have been paralyzed at that instance. 14 Q Doctor, let me ask you this. Is it possible for 15 the IVs, the IV lines or the catheters that were placed in 16 Mr. Diaz to have been improperly placed, improperly placed, 17 at the time the first drug was administered but yet have 18 somehow been correctly placed when the second drug was 19 administered? 20 A No, that does not make sense in the context of 21 certainly, what's illustrated in the autopsy photographs and 22 the autopsy description. 23 MR. NUNNELLEY: No further questions, Your Honor. 24 MS. KEFFER: I have one more question, Your Honor. 25 RECROSS-EXAMINATION OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2373 1 BY MS. KEFFER: 2 Q Your opinion that this sequence of drugs; the 3 sodium thiopental, pancuronium bromide and potassium 4 chloride as used in lethal injections would provide for a 5 humane death is based on the fact that they all will be 6 delivered properly through the veins, correct? 7 A Yes, based upon intravenous delivery I would say 8 in each and every time with intravenous delivery then a 9 humane death would be achieved. 10 MS. KEFFER: Thank you. 11 MR. NUNNELLEY: I have no further questions, Your 12 Honor. 13 THE COURT: All right, sir. Doctor, you may step 14 down. 15 THE WITNESS: Thank you, sir. 16 (Witness was excused.) 17 MR. NUNNELLEY: Judge, I did retrieve all the 18 exhibits, didn't I? 19 You got all the exhibits back, Madam Clerk? 20 THE CLERK: Yes. 21 THE COURT: Is that it for today? 22 MR. NUNNELLEY: Yes, Your Honor. We have no more 23 witnesses today. I would anticipate that any 24 additional State witnesses would be tomorrow and would 25 be rebuttal witnesses after Doctor Heath testifies. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2374 1 THE COURT: 8:30 in the morning? 2 MS. KEFFER: Your Honor, I just would like if we 3 could have an indication if they're anticipating that 4 there is going to be rebuttal witnesses, who that would 5 be. 6 MR. NUNNELLEY: Depends on what Doctor Heath says. 7 MS. KEFFER: I understand that. They've got to 8 have somebody here and ready to go. If they could just 9 indicate as to who that may be so that I have that 10 information. I understand they may or may not call 11 that person, but if I could have that information of 12 who they intend for that to be. 13 MR. NUNNELLEY: It could be Doctor Sperry, Doctor 14 Goldberger or both or neither. 15 MS. KEFFER: Thank you. 16 THE COURT: All right. We'll see you at 8:30 in 17 the morning. 18 (Evidentiary hearing was continued to July 21, 19 2007.) 20 21 22 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2375 1 C E R T I F I C A T E 2 STATE OF FLORIDA 3 COUNTY OF MARION 4 5 I, CONSTANCE MILLER, Stenographic Court 6 Reporter and Notary Public, State of Florida at Large, 7 do hereby certify that I was authorized to and did 8 stenographically report the foregoing proceedings taken 9 in the case of STATE OF FLORIDA vs. IAN DECO LIGHTBOURNE, 10 Case Number 81-170-CF, and that the foregoing pages, 11 numbered 2316 through 2374, Volume XV, inclusive, constitute 12 a true and correct record of the proceedings to the best of 13 my ability. 14 I FURTHER CERTIFY that I am not a relative or 15 employee or attorney or counsel of any of the parties 16 hereto, nor a relative or employee of such attorney or 17 counsel, nor am I financially interested in the action. 18 WITNESS MY HAND this 25th day of July, 2007 at 19 Ocala, Marion County, Florida. 20 21 ______________________________ CONSTANCE MILLER 22 Stenographic Court Reporter State of Florida at Large 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2376 1 IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT 2 OF FLORIDA, IN AND FOR MARION COUNTY 3 4 STATE OF FLORIDA 5 Plaintiff, 6 vs. CASE NO. 81-170-CF (VOLUME XVI ONLY) 7 IAN DECO LIGHTBOURNE, 8 Defendant. 9 ------------------------------------------------------------ PROCEEDINGS: Continued Evidentiary Hearing 10 Concerning Lethal Injection (Diaz issue) 11 BEFORE: Honorable Carven D. Angel 12 Circuit Judge Fifth Judicial Circuit, In and 13 For Marion County, Florida 14 REPORTED BY: CONSTANCE MILLER, RPR Stenographic Court Reporter 15 Notary Public State of Florida at Large 16 DATE AND TIME: July 21, 2007; 8:30 a.m. 17 PLACE: Courtroom 3A 18 Marion County Judicial Center Ocala, Florida 19 20 21 22 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2377 1 APPEARANCES: 2 KENNETH S. NUNNELLEY, A.A.G. BARBARA C. DAVIS, A.A.G. 3 CAROLYN SNURKOWSKI, A.A.G. Office of the Attorney General 4 444 Seabreeze Blvd.,5th Floor Daytona Beach, Florida 32118 5 Attorneys for the State 6 ROCK HOOKER, ESQUIRE 7 Assistant State Attorney 19 N.W. Pine Avenue 8 Ocala, Florida 34475 Attorney for the State of Florida 9 10 SUZANNE KEFFER, ESQUIRE ROSEANNE ECKERT, ESQUIRE 11 ANNA-LIISA NIXON, ESQUIRE NEAL DUPREE, ESQUIRE 12 CAROLINE KRAVATH, ESQUIRE Capital Collateral Regional Counsel 13 101 Northeast Third Avenue Suite 400 14 Fort Lauderdale, Florida 33301 Attorneys for Defendant 15 16 MAXIMILLIAN J. CHANGUS, ESQUIRE Office of General Counsel 17 Florida Department of Corrections 2601 Blair Stone Road 18 Tallahassee, FL 34399-2500 Attorney for Department of Corrections 19 20 21 ALSO PRESENT: Gayle Watson, Judicial Assistant 22 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2378 1 I N D E X (VOLUME XVI ONLY) 2 3 Defense Motion. . . . . . . . . . . . . . . . . . . 2379 4 STATE'S WITNESS 5 DOCTOR KRIS SPERRY 6 Direct Examination by The Court. . . . . . . . . . . 2385 Cross-Examination by Ms. Keffer. . . . . . . . . . . 2393 7 Cross-Examination by Mr. Nunnelley. . . . . . . . . .2395 Redirect Examination by The Court. . . . . . . . . . 2405 8 Recross-Examination by Mr. Nunnelley. . . . . . . . .2407 Recross-Examination by Ms. Keffer. . . . . . . . . . 2409 9 10 DEFENSE'S WITNESS 11 DOCTOR MARK HEATH 12 Direct Examination by Mr. Dupree. . . . . . . . . . .2411 Proffered Examination by Mr. Nunnelley. . . . . . . .2422 13 Direct Examination by Mr. Dupree. . . . . . . . . . .2434 14 Lunch Recess. . . . . . . . . . . . . . . . . . . .2547 15 Certificate. . . . . . . . . . . . . . . . . . . . . 2549 16 17 E X H I B I T S 18 19 Defendant's Exhibit Number 19. . . . . . . . . . . . 2418 20 21 22 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2379 1 June 21, 2007 8:30 p.m. 2 THE COURT: Good morning. Resuming our hearing. 3 Before the Defense proceeds, there's one inquiry area 4 that I would like to explore with Doctor -- is it 5 Sperry? 6 MR. NUNNELLEY: Yes, sir. 7 MR. HOOKER: He's here, Judge. 8 THE COURT: Good morning. 9 THE WITNESS: Good morning, sir. 10 THE COURT: Would you mind coming back, sir? 11 THE WITNESS: Not at all. 12 THE COURT: There's one area of discussion. 13 THE WITNESS: Should the other witness wait 14 outside or? 15 MS. KEFFER: No. 16 MR. NUNNELLEY: He's an expert, that's fine. 17 THE COURT: That's fine. 18 MS. KEFFER: Judge, I had one matter not related 19 to the witness. Do you want me to wait and discuss it 20 in between Doctor Sperry and Doctor Heath? 21 THE COURT: What is it? 22 MS. KEFFER: I just, there's been a lot of talk 23 about the transcripts from the Governor's Commission on 24 lethal injection, and looking over the exhibit list 25 that was one thing that had not been moved into OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2380 1 evidence yet. We had stipulated to the authenticity of 2 those documents, so at this time I would like to move 3 those into evidence. 4 MR. NUNNELLEY: Judge, we'll object to the 5 transcripts coming in. I don't object to the 6 authenticity of them. I do object to them coming in 7 for several reasons. First of all, this testimony is 8 not under oath. Everybody promised to tell the truth 9 but they were not under oath when this testimony was 10 given. 11 Secondly, the Governor's Commission report that 12 came out is the synthesis of the all the information 13 before the Commission. The underlying facts or the 14 underlying testimony from that report merely clutters 15 the record and when it is not under oath particularly, 16 not an adversarial proceeding, I'm not sure what theory 17 it comes in under but it's hearsay and it's not 18 admissible. 19 MS. KEFFER: If I may respond. 20 THE COURT: Yes. 21 MS. KEFFER: I agree that it was not under oath, 22 there was a non-adversarial proceeding. And the fact 23 of it being hearsay I think that I have argued that in 24 several times in response to a lot of these documents 25 that have come in; the reports and whatnot, and that OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2381 1 was the exact purpose of why we were asking witnesses 2 about various documents. 3 The transcripts come in under the fact that 4 Mr. Changus had reviewed them in doing the Department 5 of Corrections response to the Governor's Commission. 6 I believe his testimony was that he did review them, 7 they did take all of those documents into 8 consideration. 9 Further, and if I need to wait to do this through 10 Doctor Heath, but the transcripts were relied upon for 11 our expert in forming his opinions. 12 THE COURT: Do you have the transcripts? 13 MS. KEFFER: They're marked. They're marked as 14 Joint 8. 15 THE COURT: Is it in one of these stacks. I don't 16 need to see them. 17 MS. KEFFER: I believe it is one of those stacks. 18 THE COURT: That stack right there? 19 THE CLERK: Yes, sir. 20 THE COURT: That's the stack? 21 MS. KEFFER: Let me just make sure. 22 THE CLERK: A through H. 23 MS. KEFFER: Yes, Joint 8. 24 MR. NUNNELLEY: Well, Judge, Mr. Changus did not 25 testify that he reviewed all of the transcripts. He OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2382 1 testified, I believe, that he reviewed it piecemeal. I 2 could put him back on the stand to prove that if need 3 be. 4 But once again, this transcript is classic 5 hearsay. The Defense needs if they want to put it into 6 evidence to come up with an exception to the hearsay 7 rule that supports the admission of this document and 8 it is not there. It is not under oath, it was not 9 subject to cross-examination, we don't have the 10 identity of parties that's required to get over, get 11 the prior transcript in. 12 And furthermore, Judge, we have at least one 13 witness to testify, Doctor Clark, that she was paid for 14 her testimony by the Capital Collateral Regional 15 Counsel. Agreed, not CCRC South, I agree with that. 16 But at the same time these witnesses were not supposed 17 to be paid. These were not supposed to be partisan 18 witnesses and apparently at least in Doctor Clark's 19 case they were. We just found that out. 20 And that calls into question a number of things 21 about some of the testimony that came in at the 22 Commission proceedings, but the bottom line, it's 23 hearsay, it's not subject to any exception and it's not 24 admissible. 25 MS. KEFFER: Your Honor, I would like to respond OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2383 1 because the representations -- I understand that Doctor 2 Clark testified that she was -- she stated she had not 3 been paid. She stated she thought she was going to be 4 paid, she thought she was hired to give that testimony. 5 I agree that that's what her testimony was. She has 6 not received any payment. 7 And if that is the State's position, that Doctor 8 Clark was paid for her testimony, based upon her 9 misunderstanding, then I would like to call, and I had 10 listed him as a witness, I would like to call Peter 11 Jennings to the stand to clarify the misunderstanding. 12 MR. NUNNELLEY: Excuse me, there's no one known by 13 the -- 14 MS. KEFFER: I'm sorry, Bill Jennings. I 15 apologize, Bill Jennings. There was a person Peter 16 Jennings. 17 MR. NUNNELLEY: Is he available today by phone? 18 MS. KEFFER: Anyway, Bill Jennings. I wold like 19 him to clarify that information because my knowledge 20 is, in fact, Doctor Clark was not paid and that nobody 21 was paid for their testimony. They were asked and 22 invited to come to give testimony. If we need to clear 23 up that misunderstanding I would like to do that. 24 Number two, I'm not offering the transcripts for 25 the truth of what they contain, so therefore they're OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2384 1 not hearsay. I stated that they're being offered one, 2 that the transcripts and the documents that were 3 provided to the lethal injection commission, which is 4 marked as Defendant's 10, it hasn't come in yet, but 5 all of though documents are the documents that 6 commission relied on in coming to their final report. 7 And so, I would be offering this is what they 8 relied on, I would offering them to show and when 9 Doctor Heath takes the stand, in fact, these are 10 documents that Doctor Heath relied upon in coming to 11 his opinion. Experts routinely rely on documents not 12 for the truth of what they contain but for what is the 13 basis of their opinion. 14 MR. NUNNELLEY: Your Honor, if I could respond 15 very, very briefly. 16 THE COURT: Sure. 17 MR. NUNNELLEY: Three points. None of those 18 transcripts were attached to the final report issued by 19 the Governor's Commission. 20 Number two, if those documents are not being 21 offered for the truth of the matter asserted therein, 22 which is counsel's argument, then they're not relevant 23 to this proceeding. 24 Third, Doctor Heath also testified at the 25 commission. On cross-examination Doctor Heath is going OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2385 1 to need to answer the question of whether he testified 2 for free or whether he's being, was being compensated 3 for his testimony before the Commission. 4 Number four, if counsel is saying that her own 5 witness misrepresented the truth to this Court, then 6 that raises a whole set of other questions about what's 7 going on. If Doctor Clark said she was to be 8 compensated for her testimony before the Commission. 9 That is what her testimony was. That is a minor issue 10 with respect to this Court's proceedings. The 11 magnitude of that issue is something for another place, 12 another time, it's not part of this proceeding. The 13 bottom line is if those documents are not offered for 14 the truth of the matter asserted, they are irrelevant 15 to this proceeding. They are not subject to a hearsay 16 exception and they are not admissible. 17 THE COURT: Overrule objection. They will be 18 admitted. 19 MS. KEFFER: Thank you. 20 (The last-above-referred-to item was admitted in 21 evidence as Defense Exhibit 8A-H.) 22 DIRECT EXAMINATION 23 BY THE COURT: 24 Q All right. Doctor, I have a concern about an area 25 of inquiry. In a hospital setting or in a patient treatment OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2386 1 setting where an IV is being used, in the medical practice, 2 is there any procedure that the health care providers use to 3 verify that the IV is properly inserted and is working 4 properly? 5 A Yes. 6 Q What is that? 7 A Well, there's the immediate process, which is 8 basically when the IV is inserted and during the process of 9 insertion the individual, the healthcare provider if you 10 will, whether it's a nurse or a paramedic or a doctor or 11 anybody, is checking to ensure that there is blood return 12 after the needle is placed so that, you know, blood is 13 coming out the end and you can see it, which is reasonable, 14 you know, leads to a reasonable conclusion that the IV is 15 where it's supposed to be. And then when the tubing is 16 hooked up and the bag is opened, it's monitored, that is, 17 you watch it for oh, usually 15, 30 seconds to make sure 18 that the fluid is flowing in an unobstructed fashion and 19 there's no swelling, there's no sudden ballooning of the 20 area of the skin to show that it's leaking. Then the tape 21 is applied and it's covered. 22 Now, it is also routine practice so that's 23 the immediate aspect of it. Then it's completely routine 24 that during the course of routine nursing care when a nurse 25 will check on the patient, they also will examine the IV OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2387 1 sites that a patient may have in order to make sure that 2 there is no evidence of redness, swelling and also that the 3 flow is going properly. And this is also, as I've said, 4 done visually, you know, usually several times during the 5 course of each shift by the nursing personnel. 6 Now, if the patient complains say, my arm 7 hurts or it's red or something like that, then it's checked 8 immediately, that will prompt an immediate check. And also 9 in hospitals today almost all intervenes fluids flow through 10 monitor machines. The term is an I-Vac, and these are 11 sensitive machines that are set to deliver a certain amount 12 of fluid along with medication over a course of time and 13 it's essentially a very sensitive, soft pump, so that if 14 there's any kind of obstruction or interruption of the flow, 15 the machine will beep and so it assists in giving early 16 notification to the nursing personnel that something is 17 wrong with an IV and they will immediately come and check 18 the site to make sure the IV is not blown or obstructed or 19 that there's something wrong. 20 So, those are the mechanisms that are in 21 place, both immediately and then over the course of 22 basically the patient's entire hospital stay to make sure 23 that the IVs are continuing to flow and that there's no 24 problems. 25 Q Is there any time period that is recognized OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2388 1 between the time that the IV is inserted that you allow to 2 sort of give you an opportunity to evaluate whether it's 3 working properly? 4 A In the course of practice usually within I would 5 say 30 seconds to a minute is sufficient time to really 6 ascertain that it's working properly, because you can tell 7 by, that is, the health care provider can tell by looking at 8 the site that there is no swelling and there's no bruising 9 that's starred around the immediate area and essentially 10 except for the fact that the IV cannula, the little tube 11 itself is going into the kin and into the vein, there's 12 nothing else that is abnormal about it. 13 And also, you can -- the fluid flow could be 14 opened up so it will be flowing in at really almost the 15 fastest rate possible just by virtue of gravity and as long 16 as it's flowing and you can see the flow through that little 17 drip chamber that you saw yesterday in the set, where it 18 plugs into the bottom of the bag there is that oblong oval 19 chamber. You can, that's actually designed so you can look 20 at that and see the fluid running out of the bag and the 21 visual assessment that the fluid is running in an 22 unobstructed fashion and the visual assessment that the IV 23 site itself on the skin where the cannula enters into the 24 vein shows no abnormalities, no swelling, especially within 25 I would say 30 seconds to a minute that is a sufficient OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2389 1 assessment to reach a conclusion that the IV is placed 2 properly. 3 Q And when you do the IV, it starts off with a 4 saline bag? 5 A Yes, whatever fluid it is that is ordered saline's 6 a very common, a common fluid to start with but there's lots 7 of different types of fluids depending, of course, on what 8 the theraputic, you know, why you're trying to give fluid to 9 the patient. But a standard, basic fluid that has a salt 10 content the same as blood is the saline solution like we saw 11 in the exhibits yesterday. 12 Q That bag is not the medicine that is later being 13 administered, correct? 14 A Oh, correct, yes. It is saltwater and it is just 15 the fluid, the conduit to essentially keep fluid in the 16 lines so that when any medicines or drugs are added in 17 through the side ports, it will mix with the fluid. In 18 other words, you're giving fluid, otherwise it will be air 19 which you don't want to do. 20 Q And there's always a side port for the medicine to 21 be administered to enter the process? 22 A Exactly, and what's the way it is with absolutely 23 any theraputic particular measures. The term that's often 24 used is called a piggyback because the doctor may order an 25 IV line to be started and then order say, antibiotics and OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2390 1 through the side ports or the piggyback lines that is where 2 the little back with the antibiotic solution would be 3 inserted so it would drain in and mix with the saline and go 4 on into the patient's body or any other medicine or 5 theraputic, you know, administration that's needed or even 6 injections of drugs, injections of medications that are 7 ordered by the doctor. They're all handled in the same way 8 through the little side ports that come off to the side. 9 Like I said, that's called a piggyback. 10 Q When those medicines are entered into the process, 11 the way that I understand the process being used in lethal 12 injection that involves the interventions of an executioner 13 physically pushing on a syringe and physically injecting the 14 chemicals into the process. 15 A Yes, sir. 16 Q Is that the way they're done in the hospital 17 setting by human intervention or is it mechanical? 18 A Oh, depending on the medication that's ordered, 19 the giving the drug through a syringe is commonplace. 20 Again, it all depends on the drug but you say, say during a 21 surgery it's very common for a surgeon at some point or 22 another to tell the anesthesiologist to administer a certain 23 quantity of antibiotics just to pick something out of the 24 air. There's an antibiotic Ancef and he may say give a gram 25 of Ancef and so the surgeon will mix up a syringe that as 40 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2391 1 or 60CCs of fluid with that antibiotic in, it take the 2 piggyback port and push it, just use his thumb and fingers 3 to hold the syringe and inject that into the side port to go 4 directly on into the patient. 5 So, the IV line itself with the bag is really 6 only the conduit in order to allow the administration of any 7 kinds of drugs or medicines that are needed. Anything that 8 is given through the side port can be given either like I 9 said, through a small bag over time or could be administered 10 through the use of syringe and every anesthesiologist in the 11 country I would say virtually every procedure that is done, 12 they use those side ports continually during their 13 anesthesia process to continue to give more drugs by 14 injection to keep the patient asleep or to treat ongoing 15 conditions that arise during the course of the anesthesia. 16 Q And in the process of doing that I presume that 17 though the IV site might have visually determined to be okay 18 and operating properly, if the doctor in the process of 19 forcing or injecting those medicines, chemicals discovered 20 or felt some unusual resistance what would happen then? 21 A Then the process would stop. That is, the 22 whatever injection was being done would be stopped and the 23 IV would be assessed. The first thing actually to do is to 24 look up at the drip chamber and even to open up the flow a 25 little bit more to see if the flow is running properly. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2392 1 Then the IV sites itself is assessed because after the IV 2 line is placed and the cannula is placed, it's covered over 3 with tape to hold it in place and you really can't see it 4 well. Now, if there is swelling, a practiced eye can tell 5 that there's swelling even with the tape there, but it's 6 very common if the flow coming from the drip chamber appears 7 to be slow or impeded or not flowing properly, then the tape 8 is removed from around the IV and it's carefully assessed 9 visually. In a combination of those visual assessments is 10 what allows the determination as to whether the IV is 11 flowing properly or not. 12 But yes, it if there's an increased 13 resistance to the pushing of the syringe then, you know, 14 that tactile, that feeling is oftentimes what initiates 15 immediate assessment of the flow. 16 Q And looking at the protocols, the most recent ones 17 that we have in place now for May of '07, and the procedures 18 set out there for the injecting of these chemicals, did that 19 procedure seem to allow for a proper assessment of the IV in 20 its initial insertion and subsequent operation? 21 A Yes, I think so. I think it did. It really set 22 forth in verbiage basically what is standard practice in any 23 kind of medical situation, you know, around the country many 24 times every day. Here in this community for that matter. 25 If you were to go to the emergency room or the doctor said OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2393 1 that she needed an IV placed, that's exactly what would be 2 done, that basic process in order to assess to make sure 3 that the IV was flowing properly. 4 THE COURT: Okay. I don't have any other 5 questions. 6 MS. KEFFER: Your Honor, may I follow up with a 7 couple of questions? 8 THE COURT: Sure. 9 CROSS-EXAMINATION 10 BY MS. KEFFER: 11 Q Doctor Sperry, I'm looking at your CV. Is it 12 correct to say the last time you worked in a hospital 13 setting was in June of 1981 as a commissioned officer in the 14 public health service? 15 A No, it was December of 1982. 16 Q December of 1982? 17 A Yes. 18 Q Okay. And since 1982 then you've been engaged in 19 the pathology; is that correct? 20 A Yes. 21 Q Okay. And how many times in your career in 22 pathology have you inserted IVs? 23 A Oh, in pathology? Well, I haven't done any in a 24 long time and I was a resident in pathology it was 25 surprising, I put in a fair amount of IVs. I mean, I don't OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2394 1 remember numbers but I actually on several occasions -- 2 well, a number of occasions when patients fainted or had 3 reactions in the laboratory, I placed IVs mostly because I 4 had a lot more experience than pretty much all the other 5 residents because I had been in clinical practice for 6 several years beforehand. I can't tell you. 7 Q And you were a resident in pathology from 1981 8 through June the 1985; is that correct? 9 A Yes. 10 Q Do you know how long it's been since you've placed 11 an IV? Would it be fair to say that it was 1985? 12 A Well, I've actually assisted in putting some in my 13 own, in myself when I've had medical procedures where nurses 14 were having a little trouble getting an IV in. So, I've 15 actually done it myself to keep from getting stuck further. 16 I haven't done it to other people because I haven't been in 17 a situation where I've needed to can but like I said, I've 18 cannulated myself when others have had problems. 19 Q Okay. And doctor, you're not an anesthesiologist, 20 correct? 21 A Oh, no. 22 MS. KEFFER: I don't think I have any other 23 questions. 24 THE COURT: Any questions? 25 MR. NUNNELLEY: Not too many. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2395 1 CROSS-EXAMINATION 2 BY MR. NUNNELLEY: 3 Q Doctor Sperry, while you're a pathologist, that 4 doesn't mean that you do not keep current on medical 5 practice, does it? 6 A Oh, of course not. 7 Q In fact, to carry out your duties as a 8 pathologist, you have to stay current on medical practice, 9 don't you? 10 A Yes. Oh, yes. 11 Q If I can use the demonstrative aid. 12 Doctor Sperry, going to show you the line, 13 the IV line itself, the tubing with the drip chamber and 14 it's got the catheter on the end. Explain again for the 15 Judge what drip chamber; if you would? 16 A Sure. And also I think it's important to know 17 that this base, everything that I'm holding here has not 18 changed to my knowledge in at least 30 years, I'm sure 19 longer than that. This is the same and if I needed to start 20 an IV in somebody in here I could do it right now. This is 21 the same as existed when I was in medical school frankly. 22 This is the part, there's actually, take this 23 off, this is a plastic sharp end and this actually goes into 24 the IV bag itself because when you look at the bag, there's 25 really no way to tell how fast the fluid is flowing out OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2396 1 except you may look at it and then look at it 30 minutes 2 later and the bag is skinnier. This is what's called the 3 drip chamber, so that when this sharp end is inserted into 4 the bag the fluid will start to flow and you can visually 5 see the fluid flowing down as a stream through the chamber 6 here and then down into the tubing. So, glancing at this 7 drip chamber allows an immediate visual assessment of how 8 fast the fluid is flowing. 9 And this white thing here is actually a 10 little gradiated compression device that as you wheel it up 11 and down, squeezes and clamps down on the tube, it's a 12 variable clamp. So, when it's in the up position the tube 13 actually is completely open and unobstructed. You can 14 adjust it by rolling the little wheel which squeezes the 15 tube and restricts the flow then coming out of the bag. And 16 this is actually how the initial monitoring is done of the 17 IV assessment. That is, when the drip chamber is placed in 18 the bag and the fluid starts, then the observer can see an 19 unobstructed just a column of fluid flowing and then when 20 the person placing the IV is satisfied that the IV is 21 flowing properly and everything down at the arm is okay, 22 then the little wheel on the clamp is adjusted to slow down 23 the fluid. 24 So, you can slow it down so it has a drop say 25 every second and you can visually assess that by watching OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2397 1 the drip chamber and adjust it up or down, depending on how 2 much fluid you want to get into the patient. If a patient 3 say is severely dehydrated, you may open it up all the way 4 so the fluid is running in as fast as gravity will allow. 5 Or if the only purpose for the IV say is to establish 6 conduit to give other medicines or drugs through the side 7 port, through the piggyback, then the little wheel, the 8 clamp, is adjusted to slow down the flow of the fluid 9 accordingly, so the patient is just not given more fluid 10 than they need. 11 Q Let me ask you this, Doctor Sperry. If the IV is 12 not flowing properly -- 13 A Yes. 14 Q -- what do you see when you look at the drip 15 chamber? Does it fill up or what? 16 A Well, what happens is, let's say if the flow 17 begins to -- if it's not flowing properly, what one sees is 18 a slowing down of the flow through the drip chamber. In 19 other words, if the person doing the assessment opens the 20 clamp all the way so there's no obstruction but yet this is 21 not flowing at all or there's no drops at all, that says 22 that there is an obstruction or impedence in the flow down 23 somewhere at the site where the IV is put. 24 Now, sometimes there are kinks in the line 25 and things like that, so that's also part of the assessment, OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2398 1 is to look at the length of the line to make sure that 2 there's, you know, there's not a chair sitting on it or not 3 kinked or clamped, you know, somebody's laying on it or 4 something like that. As long as there's no obstruction to 5 the tubing itself and if the clamp is wide open but yet the 6 flow is nonexistence or just a few drops, then the place to 7 check is down at the patient. 8 Q Doctor, let me ask you this. I don't know the 9 answer to this question, Judge. Doctor if you set the IV 10 up, spike this bag, get what you've got ready to go like it 11 would be if it was a working IV, can you demonstrate for the 12 Judge what it would look like what one would see if the line 13 was obstructed? 14 A Sure. 15 Q Judge, would you like to us do that? 16 THE COURT: It's up to you. It's a demonstrative 17 aid only. I'm a little, I don't see any problem as far 18 as the evidence from doing that. If the Defense is 19 comfortable with it, I'll do it. If they have an 20 objection to it, I won't. 21 MS. KEFFER: The only thing, I mean, we've had the 22 description from the doctor. I'm not sure that there's 23 any indication that this would be set up the way that 24 it would be in the execution chamber, then I'm not 25 quite sure how it's relevant. But I would just say OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2399 1 we've had the description that the chamber would fill 2 up. 3 MR. NUNNELLEY: Okay. With the Defense objection 4 I won't do it. 5 THE COURT: Okay. 6 BY MR. NUNNELLEY: 7 Q Now Doctor Sperry, it's common to inject drugs 8 into an IV line using one of the side ports, isn't it? 9 A Oh, yes. 10 Q Here we go. 11 A Yes, here's where it goes into the IV bag and 12 here's one of the side ports, yes. 13 Q That's a way, for example, a paramedic on the 14 street in a major traffic accident might administer fluids 15 to the patient? 16 A Oh, yes, fluids and any medications that the 17 doctors they ordered over the radio, oh, yes. 18 Q Okay. So, is it fair to say there's not any real 19 magic about any of this? 20 A Oh, absolutely not. That is standard. As I said, 21 if you were going to the emergency room this morning, that 22 basic set up is exactly what you would see being used on 23 patients laying right there. 24 Q Doctor, let me ask you this. Have you ever had a 25 patient come into your morgue that still had this kind of OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2400 1 apparatus or equipment attached to them? 2 A Every day, every day. 3 Q In the hospital -- well, in the hospital or in the 4 emergency medical service context, and I'm kind of trying to 5 expand this as much as I can, what categories of medical 6 personnel, if you will, would be the ones who are pushing 7 drugs through a syringe through the side port of an IV line? 8 A Oh, what are the categories? 9 Q Yes, sir. Like paramedics, nurses, that sort of 10 thing. 11 A Okay. Well, you know, paramedics certainly, EMTs. 12 MS. KEFFER: I'm going to object. This is beyond 13 the scope of what Your Honor was asking this witness. 14 THE COURT: Overruled. You may answer. 15 THE WITNESS: LPNs, licensed practical nurses, 16 RNs, basically any medical personnel that knows how to, 17 has instructed, received training on how to insert a 18 syringe into a side port, then that is really all 19 that's necessary and if they know how to do it and are 20 instructed on how to do it, which is very elemental, 21 then under a doctor's orders they will do it. 22 BY MR. NUNNELLEY: 23 Q Okay. And the actual process of pushing a drug 24 through there once one has been, does not take long to 25 teach. Is that what you're saying? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2401 1 A Correct. About probably five minutes at most. 2 MR. NUNNELLEY: Judge, it would be the last 3 picture in the stack that I'm looking for. 4 BY MR. NUNNELLEY: 5 Q Doctor Sperry, I'm showing you what's in evidence 6 as State's 8-Z. I believe you saw this photograph 7 yesterday. Do you recognize that as being the inside of 8 executioner's booth at Florida State Prison? 9 A Yes. 10 Q Do you recognize the shiny metal object in the 11 middle depicted in the photograph? 12 A Yes, that's the stand actually where the syringes 13 are inserted. 14 Q And that serves as a device to hold the syringe 15 where the executioner is not having to use both hands to 16 carry out the injection, doesn't it? 17 A Correct, it provides stability really so actually 18 a more ability to push the plunger in than just holding a 19 large syringe in the hands. 20 Q Okay. Thank you, sir. 21 Now Doctor, let me ask you this. One of the 22 kinds of medical therapy when an individual has to have 23 antibiotics over a protracted period of time, it's common to 24 place the IV line and send the person home, isn't it? 25 A Oh, yes, yes. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2402 1 Q And when they do that for long term IV therapy, 2 the patient themselves is the one doing the injection of 3 drugs through the IV line? 4 A Yes, doing the injection and actually doing the 5 assessment of the IV itself. Before the patient is 6 discharged they are specifically instructed in detail of 7 what to look for, how to make sure that there is no problem 8 with the IV, to look for swelling, for redness, for pain, 9 things such as that. And also before they administer their 10 injection of antibiotics or medication that they're supposed 11 to get at various intervals, they also will use just some 12 saltwater or saline flush to inject again to make sure that 13 the IV itself is working before they inject the medication. 14 Yes, home IV therapy is done, I mean, all the time. 15 Q Don't they also have to use a Heparin injection to 16 avoid a clot in the line. 17 A Yes, they will be given little syringes with a 18 very dilute concentration of Heparin, which is a blood 19 thinning agent, that after they inject their medication they 20 will then flush the IV with a small quantity of this so that 21 no clot will form actually in the IV line itself where it 22 goes into the vein. 23 Q There's no requirement amongst the medical 24 community that a person sent home with a home IV be a 25 medically qualified person, is there? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2403 1 A Oh, no, no, not at all. They just really have to 2 be able, either they or other family members that are 3 helping with this, just have to be able to be trained and 4 understand what they're looking for. And as long as, you 5 know, the person doing the training, it's usually a nurse, 6 an RN who is experienced in IV therapy like this on an 7 out-patient basis, as long as that individual is satisfied 8 that the patient and the patient's family understands 9 exactly what they need to do and how to do it, they're sent 10 home. 11 Q Have you reviewed the Florida protocols, 12 procedures for carrying out an execution by lethal 13 injection; have you not? 14 A Yes. 15 Q Under the protocols is the executioner, I mean, 16 the actual executioner who pushes the drugs through the 17 syringe into the IV line is not required to be a medically 18 qualified person, is he or she? 19 MR. DUPREE: Your Honor, I have to object because 20 this is -- is the State reopening their case because 21 this is well beyond what you asked about the IV line. 22 THE COURT: Overrule the objection. If you know. 23 THE WITNESS: Not that I'm aware of. 24 BY MR. NUNNELLEY: 25 Q The IV lines are required to be placed by OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2404 1 medically qualified personnel with the appropriate training 2 and licensure? 3 A Yes. 4 MR. NUNNELLEY: No further questions. 5 THE COURT: Your question was, did the executioner 6 is not required? 7 MR. NUNNELLEY: Correct, Your Honor. Let me -- if 8 I could have just a moment, Your Honor, to clarify that 9 point. 10 Joint 2, Madam Clerk, please. 11 Judge, let me show you. 12 THE COURT: I have one. 13 MR. NUNNELLEY: Joint 2, paragraph one defines the 14 execution team including the medically qualified 15 personnel and then paragraph two under definitions 16 defines the executioner. 17 THE COURT: Sure. 18 MR. NUNNELLEY: Okay. But the executioner is not, 19 under the protocols, required to be a medically 20 qualified person. He doesn't have to be. We have 21 medically qualified people doing medical things. 22 With that clarification -- 23 THE COURT: Where do you see the list and 24 description of medically qualified people? 25 MR. NUNNELLEY: Judge, it's contained within the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2405 1 verbiage of execution team and it says, "Who have the 2 training and qualifications including the necessary 3 licensure or certification required to perform the 4 responsibilities or duties specified." 5 The licensure -- the phrase necessary licensure or 6 certification -- 7 MS. KEFFER: Judge, I'm going to object to Mr. 8 Nunnelley explaining to the Court what that means. He 9 can ask a witness but he's not here to testify. 10 THE COURT: Okay. 11 MR. NUNNELLEY: I'll do it in argument, Judge. 12 THE COURT: Okay. 13 MR. NUNNELLEY: No further questions, Judge. 14 MS. SNURKOWSKI: Can we have five minutes, Your 15 Honor? 16 THE COURT: Let me ask the doctor another 17 question. 18 REDIRECT EXAMINATION 19 BY THE COURT: 20 Q Doctor, if we do a hypothetical classroom sort of 21 examination of a student and we have two patients and assume 22 these two patients are identical and they have IV lines and 23 assume that that's identical and only one of these cannulas 24 is inserted into soft tissue and the other cannula is 25 properly inserted into the vein. And we have these IVs set OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2406 1 up and working and you're the student that we're testing 2 through your knowledge and ability and skill. Would you as 3 a trained medical professional be able to tell me which one 4 of those is in the soft tissue and which was in the vein by 5 looking at the operation of the IV line? 6 A I would be able to tell you -- well, as a basic 7 sort of question, yes. I would be able to tell you which 8 one was functioning properly and which one was not and then 9 the one that was not functioning properly through the series 10 of assessments that I described earlier, ultimately I would 11 be able to tell you that the cannula was in the soft tissue 12 and not in the vein. 13 Q If we make it a given that one of them is in the 14 soft tissue and one of them is in the vein and there's no 15 other obstruction or problem, you would be able to tell me 16 which one was in the soft tissue? 17 A Yes, sir. 18 Q By observing the operation of IV line? 19 A Yes. 20 Q Would it take a medically qualified person to make 21 that assessment or trained person to make the assessment 22 that the IV line is not working properly? 23 A It would take someone who -- well, I guess it's 24 difference between perhaps medically qualified versus at 25 least trained. They may not be necessarily medically OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2407 1 qualified but you could take essentially anyone and if they 2 understand the simple physics of how the system works and 3 the different parts of the system, they could be trained to 4 comprehend and reach an assessment of obstruction and where 5 that obstruction was even without knowing, you know, the 6 medicine involved. 7 THE COURT: Okay. Thank you. 8 MR. NUNNELLEY: Judge, I need to go back to the 9 protocols for just a minute to clarify what I'm afraid 10 may be a little bit of an error here. 11 Okay, you have caught me already this morning. 12 RECROSS-EXAMINATION 13 BY MR. NUNNELLEY: 14 Q Doctor Sperry, let me show you what's marked as 15 Joint Exhibit 2. 16 Directing your attention specifically to page 17 six paragraph H or paragraph ten, subparagraph H. 18 THE COURT: Page six? 19 MR. NUNNELLEY: Yes, Your Honor. 20 THE WITNESS: Okay. 21 THE COURT: 10(h), okay. 22 MR. NUNNELLEY: Correct, Your Honor. 23 BY MR. NUNNELLEY: 24 Q First of all, Doctor Sperry, the heading of that 25 section of the execution procedures states that these OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2408 1 procedures are to be carried out approximately 30 minutes 2 prior to the execution. 3 MS. KEFFER: Judge, I'm going to object, I made 4 the objection yesterday that Doctor Sperry was never 5 qualified as an expert in lethal injection proceedings, 6 so I want to renew that objection now. 7 THE COURT: What's your question? 8 MR. NUNNELLEY: Actually, it was a predicate 9 question, Your Honor. 10 THE COURT: Go ahead. 11 BY MR. NUNNELLEY: 12 Q Paragraph ten states that the procedures listed 13 under paragraph ten will be carried out approximately 30 14 minutes to the execution, doesn't it? 15 A Yes. 16 Q Then going down to subparagraph ten sub H that 17 paragraph requires a designated member of the execution team 18 to establish the IV lines and ensure that the saline drip is 19 flowing freely, doesn't it? 20 A Yes. 21 Q Would a person who is trained in establishing 22 intravenous lines be able to ensure over a 30-minute period 23 that the IV line initially functioned properly and continued 24 at all times to function properly? 25 A Yes, I would expect that that would be inherent OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2409 1 essentially of that person's ability, yes. 2 Q Is 30 minutes a sufficient period of time for a 3 problem to manifest itself, be noted and corrected? 4 A Oh, yes. 5 THE COURT: Overrule Defense objection. 6 MR. NUNNELLEY: Okay. 7 No further questions, Judge. Thank you. 8 MS. KEFFER: I think I have one last question, 9 Your Honor. 10 THE COURT: Okay. 11 RECROSS-EXAMINATION 12 BY MS. KEFFER: 13 Q Doctor Sperry, you testified yesterday that the 14 cannula in Mr. Diaz's case went through the vein and in the 15 soft tissue, correct. 16 A Yes, on both sides. 17 Q And you also testified that occurred during the 18 insertion of the IVs; is that correct? 19 A I think that is the most probable point at which 20 those perforations occurred, yes. 21 Q And today you just stated that anybody could be 22 trained to look for the signs and determine if a cannula is 23 in soft tissue, correct? 24 A Oh, yes. 25 Q Okay. So, how do you explain that in Mr. Diaz's OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2410 1 case that it was not detected that it was in the soft 2 tissue. 3 A Oh, I don't have an explanation for why that 4 occurred or how that occurred. I think that's perhaps one 5 of the big questions that is here, because what certainly is 6 documented in the autopsy photographs is inherently obvious. 7 Now, why there was -- why there was no recognition, I guess 8 is the best way to say it, or interruption of the procedure 9 is an answer that I do not have. 10 Q And that's because the only materials that you 11 reviewed were the autopsy report and autopsy photographs, 12 correct and the Governor's Commission report? 13 MR. NUNNELLEY: Objection. Argumentative. 14 THE COURT: Overruled. You can answer if you 15 know. 16 THE WITNESS: Well, I personally have never set 17 down with the people who were responsible and asked 18 them why, nor do I know what explanations they have 19 offered if they have offered any. 20 MS. KEFFER: Thank you. I'm sorry. 21 (There was a pause.) 22 MS. KEFFER: Nothing else. 23 THE COURT: Anything else? 24 MR. NUNNELLEY: No, Your Honor. 25 THE COURT: Thank you, Doctor. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2411 1 THE WITNESS: Thank you, sir. 2 (Witness was excused.) 3 THE COURT: Okay. We're ready for the next 4 witness. 5 MR. DUPREE: Yes, sir. 6 Going to call Doctor Mark Heath. 7 DOCTOR MARK HEATH, 8 having been produced and first duly sworn as a witness, 9 testified as follows: 10 THE WITNESS: I do. 11 THE BAILIFF: Please be seated. 12 DIRECT EXAMINATION 13 BY MR. DUPREE: 14 Q Good morning, Doctor? 15 A Good morning. 16 Q Could you go ahead and please state your name for 17 the record and spell your name? 18 A Mark Heath. And the last name is spelled 19 H-E-A-T-H, like a Heath candy bar. 20 Q And sir, how are you employed? 21 A I'm an anesthesiologist at Columbia University at 22 New York City. 23 Q And how long have you been an anesthesiologist? 24 A I began my training, I believe, in 1988 and I 25 finished my residency and fellowship I believe in 1991. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2412 1 Q Are you board certified, sir? 2 A I'm board certified in anesthesiology and also 3 echocardiography. I'm a cardiac anesthesiologist so 4 echocardiography for intraoperative echos. 5 Q And if you could, could you give the Judge the 6 benefit of your educational background? Where did you 7 graduate from college? 8 A I graduated from college at Harvard. 9 Q And did you have any honors attached to your 10 graduation? 11 A Magna cum laude. 12 Q And did you attend school? 13 A Yes, at the University of North Carolina in Chapel 14 Hill. 15 Q After that what you did do? 16 A I did research in London for six months and then I 17 enrolled as an intern at the George Washington University in 18 Washington DC. 19 Q How long was that internship? 20 A Twelve months. 21 Q And could you just describe generally when you did 22 during your internship at George Washington? 23 A I was intern in internal medicine and it was a 24 very bottom of the heap of the hierarchy of doctors, so you 25 do all the work that the other doctors don't want to do and OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2413 1 that is a lot of checking labs and checking on details, 2 doing procedures, writing orders, writing admission notes, 3 discharging patients. It's the colloquial term is scut. 4 That's what doctors call it. 5 Q And after your internship what did you do? 6 A I did a residency in anesthesiology at Columbia. 7 Q How long is that program? 8 A Did I a three-year residency and then two years of 9 research. 10 Q And again, just briefly describe what you did 11 during your residency to the Judge. 12 A Hard to describe in brief but I learned how to 13 become an anesthesiologist, how to induce maintain and 14 emerge patients a from general anesthesia from spinal 15 anesthetics, regional anesthetics, treatment of pain, all 16 the things that anesthesiologists do to care for their 17 patients before, during and after surgery. 18 Q And after your residency what did you do then? 19 A I did a research fellowship. 20 Q And where was that at? 21 A That was also at Columbia. 22 Q And what did that entail? 23 A I was -- 24 THE COURT REPORTER: I'm sorry, say that again. 25 THE WITNESS: I was working in a neuro-science lab OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2414 1 with a neuro-science professor studying how the nervous 2 system works, how neurons carry pain information. 3 BY MR. DUPREE: 4 Q And have you written any peer reviewed articles? 5 A Yes. 6 Q How many do you think you've written? 7 A I first authored I think three or four and did 8 basic research and review articles and I've been one of the 9 authors on a number of more, probably ten or 12 more, I'm 10 not exactly sure. 11 Q Have you ever testified in court before? 12 A Yes, I have. 13 Q On how many occasions? 14 A I think about a dozen occasions. 15 Q And can you tell the Court how many jurisdictions 16 you've testified in? 17 A I think each of those were in different states, I 18 believe. I'm not sure if I did -- Georgia I testified twice 19 in Atlanta and also in Savannah. 20 Q As part of your practice do you perform any animal 21 research? 22 A Yes, I do. 23 Q Could you tell the Court about that, please? 24 A I researched the effects of different genes on 25 animals, and the ability to process pain information and OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2415 1 most of my research now is on rodents and that involves 2 doing experiments on rats and mice. 3 Q For the purpose of what? 4 A My purpose is to understand how a certain, a small 5 set of genes, three different genes regulate the experience 6 of pain. 7 Q And as part of your practice with animal research 8 do you have to euthanize animals? 9 A Yes. 10 Q Could you describe that process for the Judge? 11 A It depends on what the animal is. There are 12 different ways for different animals. I have to take a, go 13 through a certification process in order to be permitted to 14 do that. I have to take and exam and pass that exam. 15 Q So there's a test required? 16 A Yes. 17 Q Are you familiar with the American Veterinary 18 Medical Association Guidelines? 19 A Yes. 20 Q Do you do you follow those guidelines? 21 A I have to and Columbia has to. 22 Q So the facility that you're affiliated with also 23 has to follow the guidelines? 24 A I believe we take, we accept hundreds of millions 25 of dollars of Federal funding a year so we have to have a OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2416 1 program in place of how animals are treated including how 2 euthanasia takes place. 3 Q Doctor, just generally what is anesthesia? 4 A I'll confine it to general anesthesia. In general 5 anesthesia means stopping an experience, so not sensing 6 something. We have general anesthesia where a person is put 7 completely to sleep and we have regional anesthesia, which 8 would be for example, a spinal, block the lower half of the 9 body but the brain would still be working and the person 10 would still be conscious. 11 I'll focus on general anesthesia and that's 12 process whereby drugs are used to render a person either 13 deeply sedated or completely unconscious. 14 THE COURT REPORTER: Slow down, please. 15 THE WITNESS: I'm sorry, I know I talk fast. 16 So, in general anesthesia we need to make sure 17 that the patient is unconscious. Often that they can't 18 move during the surgery, make sure they don't remember 19 what happened during the surgery, make sure they don't 20 experience any pain and make sure that at the end of 21 the operation we can emerge them from anesthesia, we 22 can wake them up and they will be conscious and 23 healthy. 24 MR. NUNNELLEY: Give us just a minute to look at 25 that, please? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2417 1 MR. DUPREE: Sure. 2 BY MR. DUPREE: 3 Q Have you ever induced anesthesia? 4 A Many, many, many times. 5 Q Could you give the Judge an approximately number 6 of how many times you have induced anesthesia? 7 A I think it must be thousands. 8 Q And is that a regular part of your practice? 9 A Yes. Been doing it all week, apart from being 10 down here. 11 MR. HOOKER: I'm sorry, were you talking about 12 animals or humans just then. Induced anesthesia 13 thousands of times in animals or humans? 14 THE WITNESS: In humans thousands of times and 15 I've euthanized thousands of animals. I have not done 16 anesthesia on thousands of animals. It would be much 17 lower number for anesthesia for animals. 18 MR. DUPREE: Did we send it to them? 19 MS. KEFFER: Yeah. 20 MR. NUNNELLEY: Do you have another copy? 21 MR. DUPREE: No. 22 BY MR. DUPREE: 23 Q I'm going to show you what's been marked as 24 Defense Exhibit Number 19. Ask you if you recognize that? 25 A It's my CV. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2418 1 Q Is it up to date? 2 A It's actually one a couple of years out of date, 3 2004. 4 Q Is there any additions that you would make? 5 A There are some abstracts I published since then. 6 Q Do you recall the name of those abstracts since 7 that time? 8 A I can't give you the exact title. A couple of 9 them relate to lethal injection, one of them relates to 10 anesthesia coverage handover coverage during surgical 11 procedures. 12 MR. DUPREE: Your Honor, at this time I would move 13 Defendant's 19 into evidence. 14 THE COURT: Admitted. 15 (The last-above-referred-to item was received and 16 filed in evidence as Defense Exhibit 19.) 17 MR. DUPREE: Thank you, sir. 18 MR. NUNNELLEY: With the caveat it's out of date, 19 we have no objection. 20 BY MR. DUPREE: 21 Q Sir, have you ever done any scientific research 22 into the lethal injection procedures in this country? 23 A I have, yes. 24 Q Could you please describe for the Court what 25 you've done? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2419 1 A It's been thousands of hours of research now. I 2 have reviewed execution protocols from almost every 3 jurisdiction that performs executions in the US, there are a 4 couple of exceptions that I haven't seen their protocols. 5 And those are from the states that hardly ever do it like 6 Illinois. 7 I have reviewed autopsy and toxicology 8 reports from hundreds of executions. I have inspected as 9 part of court proceedings seven different lethal injection 10 facilities, one of them twice. I have corresponded with the 11 individuals who were involved in the creation of the basic 12 lethal injection protocols that are used around the country. 13 Q And who is that? 14 A Jay Chapman is the medical examiner who came up 15 with the idea for it. Bill Wiseman who sat in his office 16 and broad wrote down on a yellow pad what Jay Chapman was 17 dictating about the use of an -- 18 THE COURT REPORTER: I'm sorry, you need to slow 19 down, please. 20 THE WITNESS: An ultra short-acting barbiturate 21 and a chemical paralytic. 22 BY MR. DUPREE: 23 Q What state? 24 A This is in Oklahoma. 25 Q Do you recall what year that would have been? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2420 1 A In the 1970's. 2 MR. NUNNELLEY: Excuse me, could you read back the 3 question? I couldn't understand it. 4 MR. DUPREE: I asked him what state it was in. 5 MR. NUNNELLEY: You asked him something after that 6 because I couldn't understand it. That's what I'm 7 asking to be read back. 8 THE WITNESS: He asked what year it was. 9 THE COURT REPORTER: "Do you recall what year that 10 would've been?" 11 THE WITNESS: It was in the 1970s but I don't know 12 the exact year. 13 BY MR. DUPREE: 14 Q Okay. Have you ever testified as an expert in 15 lethal injection procedures in courts in this country? 16 A I have, yes. 17 Q On how many occasions? 18 A About a dozen occasions. 19 MR. NUNNELLEY: Your Honor, I'm going to object to 20 that question. Move to strike it. 21 The way it's phrased this witness so far as I've 22 heard is not a lawyer. He hasn't been and since he is 23 not a lawyer, I don't believe Doctor Heath is qualified 24 to tell us whether he was qualified as an expert on 25 lethal injection procedures as that term is used in the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2421 1 question as a term of art. He may have been qualified 2 as an expert to testify in cases concerning lethal 3 injection but that is not the same thing as being 4 qualified as an expert in lethal injection. They're 5 two different things. 6 MR. DUPREE: Judge, I understand what I asked and 7 I'm asking him was he ever qualified to testify as a 8 lethal injections experts in procedures in any states 9 in this country. 10 MR. NUNNELLEY: And I object to that question 11 absent some foundation that this witness is qualified 12 to answer the question. It's not on his CV, his CV's 13 out of date and if he has, in fact, been so qualified, 14 they need to prove it. Not through the testimony of a 15 lay witness as far as we're concerned. 16 THE COURT: Overruled. You may answer. 17 THE WITNESS: Yes, in Savannah about two months 18 ago the Judge admitted my as an expert. I'm not sure 19 about the exact legal terminology but I served the 20 court as an expert in I think it was verbiage along the 21 lines of the study of lethal injection. To be clear, 22 I've never performed a lethal injection or witnessed 23 one, so I wouldn't call myself an expert in the act of 24 lethal injection. Also in California. 25 MR. DUPREE: Your Honor, at this time I'd move to OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2422 1 qualify Doctor Heath as an expert in anesthesiology, 2 general medicine and lethal injection procedures. 3 THE COURT: Any questions? 4 MR. NUNNELLEY: Yes, Your Honor. 5 PROFFERED EXAMINATION 6 BY MR. NUNNELLEY: 7 Q Doctor Heath, how many times have you testified 8 about lethal injection? 9 A I think about a dozen. 10 Q How much money have you made from that testimony? 11 A I would estimate $60,000, very rough estimate. 12 Q Give us the case names in which you've testified, 13 sir. 14 A I wouldn't be able to do that off the top of my 15 head. I'll do my best sort of going in geographical order. 16 Q However is more convenient for you, sir. 17 A Okay. I testified in a case in Maryland, I 18 believe it was called Evans versus Sar (ph.). I testified 19 twice in Virginia. No, excuse me, once in Virginia and I 20 believe it was Reid, R-E-I-D versus somebody, I'm not sure 21 who. I testified in Tennessee and the plaintiff's name was 22 something like Abdur Raman (ph.) or something. It was a an 23 Islamic name. I do not know the name of the defendant or 24 the warden or whoever it was. I have testified in Kentucky 25 the name Bowling is somehow in my mind there, but I'm not OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2423 1 sure where that person's name was on it. I testified in 2 Louisiana and I do not know the name of either the plaintiff 3 or the defendant in that case. I testified in Missouri 4 Michael Taylor was the plaintiff. I do not know the names 5 of the warden. I testified in California, the plaintiff's 6 name was Morales. I think the defendant's name changed many 7 times because there were multiple replacements of the 8 wardens during the course of proceedings. 9 Q Mr. Morales was the inmate? 10 A He's the plaintiff. I believe civil litigation 11 where he is suing the Department of Corrections asking for 12 certain things to be done or not done. And the defendants, 13 I believe, are the wardens or the head of the Department of 14 Corrections or those sorts of people. 15 Q But Mr. Morales is an inmate under death sentence 16 in California, isn't he, Doctor Heath? 17 A Yes, he is. 18 Q Thank you. Now, after California where did you 19 testify? 20 A You can't hold me to the exact order of things. 21 Q I understand. 22 A But I did testify after California I testified in 23 Indiana and I'm not recalling the name of the defendant or 24 the plaintiff in that case. 25 Q Okay. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2424 1 A I testified in Savannah, Georgia and I missed an 2 earlier case testifying in Atlanta. The first time I 3 testified was in Atlanta. 4 Q Okay. Who were those defendants? 5 A I don't remember the name of the warden or the -- 6 I'm sorry, I don't remember the name of the case. 7 Q Okay. 8 A But it should all be on affidavits that I've 9 written online. Very readily available information. 10 Q But you don't remember? 11 A I don't remember the names of all the cases. It's 12 a large number of cases and I'm sorry, I just don't remember 13 their names. 14 Q Okay. Why don't you give me the Web address where 15 all this is posted and readily available, sir? 16 A The University of California at Berkeley, the law 17 school is the Boalt Law School, B-O-A-L-T, and there's a 18 website there where they have aggravated information about 19 lethal injection proceeding. 20 Q Actually it's an anti-death penalty website, isn't 21 it, Doctor Heath? 22 A Actually, I'm not sure. I've never actually 23 looked it myself. My understanding is that they were just 24 putting information about transcripts and affidavits 25 scholarly articles. I didn't realize it had any opinion. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2425 1 Q Does that website or articles, testimony, 2 affidavits and such that contradict your opinions and 3 testimony posted on that website or do you know? 4 A I've spoken with the person who runs the website, 5 his name is Ty Alper and it's very much my understanding 6 that he's putting the entire transcripts, all the 7 declarations from all experts from both sides, as much 8 material as he can garner and place on the website, I 9 believe he's doing that. 10 Q But you haven't checked it to see for yourself, 11 have you, sir? 12 A I'm not recalling doing that, no. 13 Q Okay. Now, in each of these cases that you 14 listed, these 12 cases, you were hired by the inmate who is 15 under a death sentence, weren't you, sir? 16 A I think in most of them the inmates were indigent 17 and I was hired by the counsel or the law firm that was 18 doing pro bono work. 19 Q You testified in every one of the cases in which 20 you have testified on behalf the inmate under death 21 sentence, didn't you, Doctor Heath? 22 A That's correct, yes. 23 Q Now, so when you testified that you served the 24 court in Georgia two months ago, I believe it was up in 25 Savannah, you were still testifying on behalf of the death OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2426 1 sentenced inmate, weren't you, sir? 2 MR. DUPREE: I'm going to object, Your Honor. 3 This has nothing to do with his qualifications. If he 4 wants to examine him about his opinion and bias, that 5 doesn't go to whether or not he's qualified as an 6 expert. 7 MR. NUNNELLEY: Your Honor, if he testified he 8 served the court now he's saying he testifies as a 9 defense witness, that goes to the truthfulness of his 10 qualifications, the truthfulness of his testimony 11 offered in connection with the attempt to qualify him 12 as an expert. I'm entitled to go into that. 13 THE COURT: I'll sustain the objection so far as 14 his qualifications are concerned. 15 BY MR. NUNNELLEY: 16 Q And Doctor Heath, you testified that your CV is a 17 couple of years out of date. In fact, it bears the date of 18 December 19, 2004; is that correct? 19 A I don't know what date is on it. I know it's 2004 20 but I don't know the month or date. 21 MR. NUNNELLEY: If I could have Defense 19 please, 22 ma'am. 23 BY MR. NUNNELLEY: 24 Q Doctor, your CV, which is in evidence as Defense 25 19, was prepared by you, wasn't it? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2427 1 A Yes. 2 Q You reviewed in for completeness, didn't you, sir? 3 A When I prepared it, yes. 4 Q Okay. I'm showing it to you now as Defense 19 and 5 it bears the date as December 19, 2004? 6 A It does. 7 Q Is that the most recent CV that you have, doctor? 8 A It is not. 9 Q It's not. Do you have a more recent one with you? 10 A I don't believe I have one. I don't have one on 11 me. I could get one online. Again, the Boalt website will 12 have more recent CV. What has happened in these cases I've 13 observed is that attorneys file cases without my even 14 knowing about it and they put an affidavit with the attorney 15 and name of state. Montana would file, and this is justed a 16 hypothetical, would file a case using an affidavit that they 17 found online somewhere with my CV and it will be therefore 18 out of date. 19 Q You get royalties for that, doctor? 20 A That would be nice. Unfortunately it's not 21 happening. 22 Q Maybe you need a good lawyer. 23 A I don't have a lawyer at all. 24 Q Doctor, let me ask you this. You said when you 25 testified that there are some materials or articles or an OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2428 1 abstracts or something about lethal injection that are not 2 on your CV. You didn't specify what any of those were, so 3 could you do that for us now? What have you done connecting 4 with lethal injection that is not on you curriculum vitae? 5 A Just to clarify, I think there are different kinds 6 of CVs and this is an academic one and my experience is that 7 people usually don't list times when they served the court 8 as an expert witness on a CV. And so I have got to clarify, 9 there's many, many things I've done regarding lethal 10 injection litigation that are not on my CV that I've never 11 put on any kind of CV. But in terms of scholarly, academic 12 type of activities related to lethal injection, I believe 13 there are three things. One was and abstract regarding 14 post-mortem toxicology, thiopental toxicology which has been 15 a very hot area of discussion regarding lethal injection. 16 One of them was an abstract about and 17 analyzing EKG recordings during lethal injection and one of 18 them is a book chapter. 19 Q What book is that going to appear in? 20 A It's not, I'm not sure of the title of the book. 21 I was invited by an expert on prison health issues and I 22 vaguely remember seeing the other authors who were asked to 23 contribute and they're writing about healthcare activities 24 in prisons. 25 Q But you don't know the name of the book? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2429 1 A I really don't. It hasn't been published yet. 2 Q Would the name of the book appear on your other 3 CV? 4 A It hasn't been published yet. 5 Q But sometimes I've seen CVs very often where they 6 say publication pending or something like that. You didn't 7 do that? 8 A I don't believe it's even in press. 9 Q Okay. 10 A I think it would be inappropriate to list that. 11 Q So, if you wouldn't list it on your CV you 12 wouldn't really consider it here either, would you? 13 A You asked my what scholarly activities I've done 14 or might be on there, so I wouldn't want to be considered 15 guilty of deception by omission, so I'm telling you 16 everything I can think of that you might think was relevant. 17 If you don't think that's relevant, that's fine with me. 18 Q No, doctor. You testified when your lawyer had 19 you under direct examination that there were three things 20 relevant to lethal injection that did not appear on your CV. 21 I asked you what they were, now you're telling me that you 22 wouldn't put the book chapter on the CV because it hadn't 23 been published. So, my question is, if you're saying that 24 you wouldn't put it on your CV because it hadn't been 25 published, then it also isn't relevant to your OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2430 1 qualifications as an expert, is it, Doctor Heath? 2 A I'm sorry, I lost track of the context and I 3 wasn't really thinking in terms of qualifications as an 4 expert. I was trying to help you in terms of you asking 5 about shortcomings in my CV things that I have done that I 6 haven't listed and I was trying to tell you what those 7 things would be. I think it's quite appropriate to not 8 consider it as part of my qualifications because it has not 9 fully survived the publishing process. It has not been put 10 into press yet. I believe there are editorial changes that 11 will need to be made and things of that nature, so. 12 Q Now, doctor, you show -- in looking at the CV that 13 I've got in front of me that's in evidence as Defense 19, I 14 see that you were an invited lecturer in Geneva, Switzerland 15 and the topic is problems with anesthesia during lethal 16 injection procedures. Do you remember that? 17 A I remember that. 18 Q That was July of 2002? 19 A If that's what it says, then that's when it was. 20 Q That presentation was not a peer-reviewed 21 presentation, was it, Doctor Heath? 22 A I think the great majority of such presentations, 23 I don't believe any of the presentation were. No, it was 24 not. 25 Q Then you put on something before the counsel OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2431 1 defender conference in Virginia in 2004, didn't you? 2 A Yes. 3 Q And you put on a presentation, anesthetic, death, 4 paralysis and other medical problems with lethal injection 5 protocols evidence and concerns to the Federal Capital 6 Habeas Unit Annual Conference in Jacksonville, Florida in 7 May of 2004. Do you recall that? 8 A I recall the meeting and that date sounds right. 9 Q Okay. Was that the Federal Public Defender? 10 A I'm not exactly sure of the correct names of 11 different institutions. 12 Q Was it the United States Attorney? 13 A I really don't know who was sponsoring it. 14 Q Was this a defense-oriented presentation? 15 MR. DUPREE: Objection. Relevance as to his 16 qualifications. 17 THE COURT: I'll sustain the objection. 18 BY MR. NUNNELLEY: 19 Q Neither of those two presentations, the Federal 20 Capital Habeas Unit Conference and the Capital Offender 21 Conference were peer-reviewed presentations, were they, 22 Doctor Heath? 23 A When doctors go to present to a group of people we 24 don't for it to be peer-reviewed or not. We go present in 25 front of professionals whether attorneys or doctors or other OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2432 1 people. It's a presentation so to think of it as being 2 peer-reviewed or not would be the wrong way to think about 3 that kind of talk or lecture. 4 Q Well, doctor, fact of the matter is, you haven't 5 published anything that's peer-reviewed about lethal 6 injection, have you? 7 A I don't think that would be correct. I've 8 published those two abstracts were peer-reviewed and I sent, 9 published a letter in the -- 10 THE COURT REPORTER: Where? 11 THE WITNESS: A journal called the Lancet, 12 L-A-N-C-E-T. 13 BY MR. NUNNELLEY: 14 Q But the articles that you say are peer-reviewed 15 aren't listed on your CV? 16 A Because they occurred, they were published after 17 December of 2004. 18 MR. NUNNELLEY: Your Honor, I have no objection to 19 this witness being qualified as an expert in 20 anesthesiology. I have no objection to him being 21 qualified as an expert in general medical matters, for 22 lack of a better word. 23 BY MR. NUNNELLEY: 24 Q Let me ask you one final question, Doctor Heath. 25 Have you ever seen a execution? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2433 1 A No, I have not. 2 MR. NUNNELLEY: He has shown no expertise beyond 3 that of any other doctor in the field of lethal 4 injection procedures. He cannot, has not been 5 qualified with respect to any issue relevant to lethal 6 injection other than the medical component of it. He 7 is not an expert in security procedures, he is not an 8 expert in prison procedures. The only thing that he is 9 expert in, and I will agree with this, he is an expert 10 in the field of medicine, he an anesthesiologist. I 11 presume they can show that he's expert with the drugs 12 that are used in carrying out a lethal injection, but 13 the way that the Department of Corrections carries out 14 a lethal injection, aside from the medical component of 15 it, is outside the expertise of this witness. 16 THE COURT: Overrule. Accept him as an expert and 17 assume that you'll help keep him within bounds. okay? 18 MR. DUPREE: Your Honor, I just want to point out 19 that he has been qualified as an expert in lethal 20 injection procedures in eight different jurisdictions. 21 MR. NUNNELLEY: Your Honor, is Mr. Dupree back on 22 the witness list? 23 MR. DUPREE: He already answered the question, 24 Mr. Nunnelley. 25 THE COURT: Let's go ahead and hear the question. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2434 1 I mean, we don't know where we're going until we hear 2 the question. 3 MR. DUPREE: Thank you, Your Honor. 4 CONTINUED DIRECT EXAMINATION 5 BY MR. DUPREE: 6 Q Sir, could you give the Court a very brief history 7 of lethal injection in the United States; where it began, 8 what your understanding of how it began was? 9 A My understanding is based both on reading 10 scholarly work, reading lay press and also corresponding 11 with the individuals who are involved, three of the four 12 individuals who are involved in the genesis of lethal 13 injection. 14 Q Could you please tell the Court who those people 15 were? 16 A The fourth person is dead now but a Senator 17 William Wiseman in Oklahoma was a state senator who as the 18 moratorium on capital punishment was pending, he came up 19 with the idea of using lethal injection instead of 20 electrocution or other methods, gas chamber and things like 21 that. 22 THE COURT: What state? 23 THE WITNESS: This is in Oklahoma in the I believe 24 mid-1970s or late 1970s. 25 So, Senator Wiseman thought this might be a good, OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2435 1 humane way of doing it. He tried to get help from the 2 State Medical Board, his personal physician was I 3 believe the head of the State Medical Board and so he 4 asked his personal doctor hey, can you help, tell me 5 how we would do this if it's a good idea and his doctor 6 and the medical board declined to help do that. 7 MR. NUNNELLEY: Judge, I know he's an expert. 8 This is rank hearsay to start with. It's also totally 9 irrelevant to what is before this Court. 10 The issue before this Court is not the 11 Constitutionality of lethal injection, the history of 12 lethal injection that predates Ferman versus Georgia or 13 comes, even if this comes after Ferman and I thank you 14 for correcting me, Doctor Heath. I appreciate that. 15 It is not relevant to the issue before this Court. 16 Sims is still good law, the Diaz decision itself said 17 Sims is still good law and we're here to talk about 18 what happened in the Diaz execution and what the 19 Department of Corrections has done in response to it. 20 Not hearsay from a senator and medical examiner in 21 Oklahoma who developed the procedure 20 some-odd years 22 ago. 23 THE COURT: You don't have much of this, do you? 24 MR. DUPREE: No, Your Honor. I have just have 25 brief overview of this, that's it. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2436 1 THE COURT: That would be helpful. 2 MR. DUPREE: That's fine. 3 THE COURT: Okay. Go ahead. 4 THE WITNESS: Senator Wiseman didn't get help from 5 the medical board, but the state medical examiner, 6 Doctor Jay Chapman heard that Senator Wiseman was 7 looking for help with this, called him up and said I 8 can help you out. Went over to his office and dictated 9 just I think a couple of sentences which then 10 without -- which then Senator Wiseman introduced to 11 legislation and without any kind of blue ribbon panel 12 or any commission or anything like that, that language 13 became the statute. 14 The statute -- the language was reviewed by Doctor 15 Stanley Deutsch who at the time was a chair of 16 anesthesiology of Oklahoma State University. And he 17 made a couple of comments about it in a letter and it 18 became legislation. And then other states successfully 19 copied virtually that exact language for quite a number 20 of years as they introduced their own methods of 21 capital punishment. 22 BY MR. DUPREE: 23 Q With regard to the drugs that are involved in 24 lethal injection, could tell the Judge what drugs were 25 involved back in 1979 when this was first introduced? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2437 1 A The initial legislation just said to use an ultra 2 short-acting barbiturate like pentothal, which is what is 3 being used in every state now and also a chemical paralytic 4 drug or agent. And for example, pancuronium, which is being 5 used throughout the country, is a chemical paralytic. It 6 did not say anything about potassium. 7 Q Now, can you explain the principle steps in a 8 Florida execution? 9 A In an execution by lethal injection? 10 Q Yes, sir. 11 A Yes, and it's basically the same framework 12 everywhere in the United States that uses lethal injection. 13 The first stage would be obtaining IV access. 14 MR. NUNNELLEY: Objection. There's no predicate. 15 THE COURT: Overruled. Go ahead. 16 MR. NUNNELLEY: Your Honor, I hate to argue with 17 you, but there's been no showing -- he hasn't testified 18 that he reviewed the Florida protocols that are in 19 effect. He's testified that he thinks this is what the 20 procedure is. If they want to lay a predicate for him 21 to talk about what the Florida procedure is, they need 22 to do it. They can't just say have you reviewed what 23 Doctor Chapman and Doctor Deutsch did 20 years ago and 24 then say what do we do in Florida. You can't do that. 25 THE COURT: I thought he was talking about other OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2438 1 states. 2 MR. DUPREE: If you want me, Judge, I'll have him 3 look at the protocol. That wasn't the order I was 4 going to do it in but -- 5 THE COURT: Are you talking about other states. 6 MR. DUPREE: No, sir. I asked him specifically if 7 he could explain the principle stages in the Florida 8 executions. 9 THE COURT: Stages, okay. 10 MR. DUPREE: Yeah, that's what I'm asking him 11 about, is the stages. 12 MR. NUNNELLEY: He needs to lay a predicate for 13 that, Judge. 14 THE COURT: Okay. Go ahead. 15 BY MR. DUPREE: 16 Q Sir, I'm going to show you what's been marked as 17 Joint Exhibit Number 2 and Joint Exhibit Number 1 and ask 18 you if you can identify those documents? 19 A Yes. 20 Q What are they, sir? 21 A These are procedures for execution by lethal 22 injection for the State of Florida. One of them is from 23 2006 and one of them is from 2007. 24 Q Could you please give the exact dates? 25 A Sorry, the first one is August 16th 2006 and the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2439 1 second one is May 9th 2007. 2 Q And you reviewed those documents in preparation 3 for your testimony today? 4 A Yes. And I reviewed them prior to this also. 5 Q Based upon that can you explain the principle 6 steps in a Florida execution based upon you knowledge of 7 what's contained in the Florida Department of Corrections 8 protocols? 9 MR. NUNNELLEY: Judge, we need to break it down 10 between the two sets of procedures. Otherwise, we're 11 going to wind up with the procedures blended on the 12 record where we can't tell what he's talking about. 13 MR. DUPREE: Judge, I don't think it's changed 14 that much but -- 15 THE COURT: Go ahead. 16 BY MR. DUPREE: 17 Q Okay. In terms of the four stages on the 18 August 16th protocol, let's go with that first. Are the 19 stages any different between the two? 20 A In a very general sense the structure of the 21 procedures is the same between these two protocols and it's 22 the same throughout the United States. There are variations 23 on that fundamental structure, but it's the same everywhere 24 and I think it's helpful to think about it in four stages. 25 The first stage being obtaining IV access and that can be OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2440 1 done either through a peripheral IV in the hand or the arm 2 or sometimes the foot, or through central IV access, which 3 would be one of the larger veins in the neck or the chest or 4 the groin. 5 Once IV access is established then three 6 drugs are given and I think of each of those three drugs 7 being a different stage of the procedure. The first drug 8 that's given is the anesthetic drug and right now that's 9 thiopental. That's supposed to make the prisoner 10 unconscious for the next two drugs and for the duration of 11 the procedure. 12 The second drug is a basically a cosmetic 13 phase. It's the administration of a paralytic drug that 14 helps ensure that the procedure will appear humane because 15 the prisoner would not be able to move. 16 Then the third phase is the actual phase that 17 causes the death in the great majority of executions. It's 18 the administration of potassium. That's the drug that stops 19 the heart in great majority of executions in the US. 20 Q Okay. Sum up then, it would be placement of the 21 IVs, the delivery system, the pancuronium and the potassium 22 chloride; is that correct? 23 MR. NUNNELLEY: Kind of left out the thiopental. 24 State the question properly. 25 THE WITNESS: It's not correct. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2441 1 THE COURT: Go ahead. 2 BY MR. DUPREE: 3 Q As part of the delivery system does that involve 4 thiopental delivery? 5 A Yes. Again, the IVs are the first stage, the 6 thiopental anesthesia is the second stage, the pancuronium 7 paralysis is the third stage and the potassium, which causes 8 death cardiac arrest and execution is the forth stage. 9 Q Let's talk about the first stage, placement of the 10 IVs. Do you do that in your practice? 11 A Yes, all the time. 12 Q How many times do you think you've placed an IV in 13 your practice? 14 A Many thousands. 15 Q Okay. How long have you been doing that? 16 A Since I began my anesthesia, my internship in 17 1987. 18 Q Okay. 19 A Medical school before then. 20 Q Have you ever failed to properly place an IV? 21 A Many times. 22 Q Can you tell me some of the common problems that 23 are associated with placing an IV? 24 A Sometimes we just can't find a vein in a person at 25 all. We put a tourniquet on and you look around for a vein OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2442 1 and you can't find one. There are common places where a 2 vein exists even if you can't see or feel it and you'll try 3 in those places. Sometimes we can't get blood return and we 4 can't thread an IV. 5 Sometimes we put an IV in and it's not in 6 properly and we find out at some point either immediately or 7 a significant time later that it's not working properly, 8 it's infiltrated and the extravasating. 9 Q What is extravasation? 10 A Vasa is Latin for vessel and extravasation means 11 that the fluid or drugs that are being injected that are 12 supposed to go into the vessel go outside the vessel into 13 the surrounding tissuing. 14 Q Let's break that down a little bit. Do you know 15 some of the causes of extravasation? 16 A Yes, the one common cause is the tip of the 17 catheter is outside the wall of the vein, either hasn't gone 18 in far enough or gone through and through. Another possible 19 cause is while the catheter's in the vein the vein has a 20 hole in it and is leaking. That often happens if you tried 21 several times to put IVs in and you may have perforated the 22 vein and so fluid can go into the tube of the vein but then 23 leak out again. 24 Q And what would be the problem associated with 25 that, if a catheter is extravasating? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2443 1 A I think two main problems. One is that the drugs 2 don't get into the circulation and get delivered to wherever 3 in the body you want them to be delivered to and the other 4 main problem is that the drugs are now accumulating where 5 the IV is and that can cause pain or injury or both to the 6 surrounding tissue. 7 MR. DUPREE: Your Honor, may I approach the 8 witness? 9 THE COURT: Sure. 10 BY MR. DUPREE: 11 Q I'm going to show you and joint exhibit which is 12 it's marked as Joint Exhibit 11. There's a number of 13 letters after that. And I'm going to show you a 11-N. 14 MR. NUNNELLEY: Judge, may I come up here where I 15 can see what he's being shown? 16 THE COURT: Sure. 17 MR. DUPREE: Come on up. 18 BY MR. DUPREE: 19 Q 11-O, 11-P, 11-Q, 11-GG, 11-YY, 11-VV, 11-UU, and 20 11-RR. 21 I'm going to ask you so take a look at those 22 photographs and see if you recognize them. What do you 23 recognize them as? 24 A These are photographs from the autopsy of 25 Mr. Diaz. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2444 1 Q And I would like you, if you could, to explain 2 when we're talking about extravasation if you could show the 3 pictures to the Judge and explain, based upon the autopsy of 4 Angel Diaz, how about the extravasation. If you could just 5 point it out and show him what that means. If you could 6 stand up to do it? 7 THE COURT: I can see okay. 8 THE WITNESS: Trying to find the one that will 9 best illustrate. 10 You can see on this photograph the white -- 11 THE COURT REPORTER: I'm sorry, I can't hear you, 12 sir. 13 THE WITNESS: I'm sorry. 14 You can see the white plastic catheter and it's 15 going through the vein and coming out the other side of 16 the vein. And so that means obviously that when drugs 17 are administered through that catheter, it's not going 18 to go into the vein, they're going to go into the 19 surrounding tissue. 20 I think there might be a -- 21 MR. NUNNELLEY: Judge, I'm going to object to that 22 as being nonresponsive. The question was to show you 23 extravasation and he showed you an IV that's misplaced. 24 That's not the same thing, I don't believe. 25 THE COURT: Overruled. Go ahead. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2445 1 THE WITNESS: I tried to explain the mechanics of 2 it. So, again, you can see -- this is a larger view. 3 You can see the catheter going through, that's the vein 4 there and it's going through the vein into the 5 surrounding tissue. So, the hole is at the end of the 6 catheter so it's pretty clear that when you inject 7 drugs through this it's not going doing into the vein 8 and travel through the circulation but instead it's 9 going to go up the surrounding tissue. 10 THE COURT: What's that? 11 THE WITNESS: I don't know what that it. It might 12 be another vein or a ligament or a tendon. I can't 13 tell, I would have to feel it to know what its 14 consistency was. 15 This long thing here. It looks like it might be a 16 vein. It may connect with this thing here which is a 17 vein but I'm not sure. 18 MR. NUNNELLEY: What picture is that, doctor? 19 MR. DUPREE: It's 11-O. 20 BY MR. DUPREE: 21 Q Are there any other pictures that would be useful 22 to demonstrate the extravasation and what occurred to 23 Mr. Diaz? 24 A Yes, here's a picture showing Mr. Diaz's arm. 25 This would obviously be before the medical examiner did the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2446 1 dissection to find out what happened -- 2 MR. NUNNELLEY: What photograph is that? 3 THE WITNESS: -- to the vein. This is GG, 11-GG. 4 And so this shows Mr. Diaz's arm. You see 5 his arm pit, his elbow and his wrist. The IV catheter is in 6 what we all the antecubital fossa, the front of the elbow. 7 And these kind of markings -- so, first of all, it's kind of 8 strange because he's Latino and his skin is dark and the 9 skin has peeled off because of the extravasation and the 10 effects of the chemicals leaving the white skin that we all 11 have underneath our colored skin or underneath the skin of 12 whatever color our skin is. And you can see that all this 13 area where the skin is peeled off is because of the drugs 14 extravasating. It's also called infiltrating into the 15 surrounding tissue. 16 And you can see discoloration going down to 17 here and up to here. There are other photographs. I'm not 18 sure if they're in this series, that clearly show how far up 19 the area of the chemical infiltration is. And obviously, 20 when drugs are injected into a vein, they shouldn't end up 21 in the surrounding here. They should travel up the vein 22 into the chest into the heart to be distributed throughout 23 the body. 24 Q Now, Doctor Heath, yesterday we heard some 25 testimony from Doctor Sperry and what Doctor Sperry OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2447 1 indicated was that it was his opinion that the cannulas had 2 been pushed through the veins on both arms during the 3 insertion of the IVs. Do you have any of reason to disagree 4 with his conclusion? 5 A I agree highly likely be the most at the time when 6 this happened, yes. 7 Q So, it would have been during insertion? 8 A Yes, right when they were put in. 9 Q Now, sir, in your practice how do you correct the 10 problems of extravasation? What do you do in your practice? 11 A One has to detect it and then correct it. There 12 are two phases. 13 Q Let's start with detection. How do you detect it? 14 A Detection, many different ways. I train my 15 residents before they ever inject a drug, immediately before 16 injecting the drug, they should check for the flow of fluid 17 in the drip chamber. What has to -- one develops a feel 18 over time for the back pleasure on a syringe plunger and you 19 can't learn it from a book. You get that feel of what a 20 normal injection feels like and what it feels like to be 21 injecting into an extravasated area. And one needs to be 22 standing at the bedside when one is injecting drugs, it's a 23 bedside procedure. And one can see where the IV catheter 24 goes into the skin. Doctor Sperry was a little bit 25 incorrect, I don't know if he misspoke. When he was OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2448 1 describing that the IVs were covered in tape so that you 2 can't see the IV site, people use either clear tape or some 3 other kind of clear adhesive would be important medical 4 practice precisely so that one can see the IV site. And if 5 you look at this picture of Mr. Diaz's arm, you can see that 6 they've used a clear tape there and you can actually see the 7 catheter underneath the tape. I believe this catheter was 8 not fully inserted. It's only partially inserted and you 9 can see that because they're using clear tape. And that's 10 bedrock medical IV practice. I would not cover it with tape 11 that could obscure. 12 Q Doctor Sperry also testified this morning about 13 some of the ways you can determine if extravasation has 14 occurred. 15 A If I could just continue. Another way we find out 16 the drugs, that the IV isn't in improperly is we inject 17 drugs and they don't, we don't see the anticipated 18 consequences. So, if I injected a large dose of a general 19 anesthetic and my patient doesn't go to sleep, which has 20 happened to me, then that's one strong clue that the IVs 21 aren't working properly. There are other possible 22 explanations like I injected the wrong drug or the drugs 23 were mixed improperly or it was a bad batch, but certainly 24 if I inject an amount of drug that I know would put any 25 normal person to sleep and they stay wide awake and OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2449 1 conversant then I definitely consider the possibility that 2 the IV is infiltrated or there's extravasation. 3 Q Okay. In your practice do you monitor for 4 extravasation? 5 A Yes. 6 Q And how do you do that? 7 A Well, again, induction of general anesthesia is a 8 bedside procedure and so the patients arm, I'll be standing 9 within inches of the patients head or shoulders and the 10 patient's arm will be again within a couple feet at most 11 from me and I'm able to observe the fluids flowing in, 12 observe the drip chamber and observe the IV site to see if 13 there's swelling. 14 And I can, I do palpation. I can feel the IV 15 site, because an IV site that's infiltrating often but not 16 always gets cold. The fluid is at room temperature and the 17 patient's body is warm so it starts to feel cold and it also 18 gets to kind of crunchy bubbly feeling. It's hard to 19 describe but it's a very distinctive feeling that one can 20 get with experience to indicate that an IV's infiltrating. 21 THE COURT: You said it gets cold or warm; what 22 did you say? 23 THE WITNESS: The patient's body is warm, the 24 fluid that's going in is room temperature. Normally 25 when you touch a person they feel warm. If you touched OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2450 1 a person who is room temperature, they would feel like 2 they were a dead person because dead people are at room 3 temperature. So, I touched their arm over the IV site, 4 it should feel warm. If it's feeling cold that would 5 very likely be because the fluid that's room 6 temperature has filled up that area of their arm. 7 BY MR. DUPREE: 8 Q Can you tell about extravasation just from looking 9 at a person? 10 A Sometimes you can. You can see that it's present 11 but just by looking at a person definitely does not rule out 12 that it's present. 13 Q Okay. 14 A You need to be able to do more things including 15 the palpation to help in that determination. And even doing 16 those things, one does always know that extravasation has 17 occurred. 18 Q Can you determine extravasation from a distance? 19 A The further away one is it becomes rapidly much 20 more difficult to do so. So from, you know, five or 21 six feet away one would have to have eagle eyes and still be 22 very impaired compared to being up close. 23 Q Okay. In your practice do you ever anesthetize 24 somebody from a distance? 25 A I never induced general anesthesia from a OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2451 1 distance? 2 Q How do you induce general anesthesia? 3 A Again, it's at the bedside. I'm standing above 4 the patient's head or at their shoulders so within a foot or 5 at most two feet of them. 6 Q Why do you do it that way? 7 A In large part for this reason. To make sure that 8 the drugs are flowing in properly so that I can assess 9 extravasation and to assess the effects of the drugs and 10 make sure my patient is getting anesthetized which requires 11 a hands on assessment. 12 Q Have you ever heard the term resistence used in 13 placement of a IV? 14 A There can be resistence of threading the catheter. 15 Q And could you please explain to the Court what 16 resistance means? 17 A To the catheter comes on a metal needle and you 18 push that needle into the vein and when you get the flash of 19 blood return coming up through the catheter into the hub of 20 the needle. Then when one tries to thread the catheter off 21 that needle, have a threaded to the vein, sometimes there is 22 resistence, it's difficult to push the catheter in. It 23 should glide in with very minimal resistence. That 24 resistence can be from a number of causes. That would be a 25 valve in the vein, the catheter could be going in to an OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2452 1 acute angle to the wall of the vein. Or the catheter might 2 not be in the vein, it might be having taken through to the 3 surrounding tissue which would cause resistence. 4 Q If you had a situation where you had resistence in 5 your practice what would you do? 6 A First of all, be very concerned that the IV that 7 the catheter wasn't being advanced into the vein. I would 8 take extra steps to ensure that the catheter. That if I did 9 get the catheter in the vein that I really had done that. I 10 would be extremely careful, because having resistence on the 11 way in is a hallmark sign of that the catheter might not be 12 properly placed in the vein. 13 Q And what would be some of the other problems that 14 would be associated with that? 15 A If the catheter is not in the vein? 16 Q Yes, sir? 17 A Well, then the two things we discussed before; the 18 drugs will not an get into the circulation and achieve the 19 desired effect. And also, they'll be accumulating in the 20 arm where they can cause deleterious effects. 21 MR. DUPREE: Your Honor, I just need to look and 22 see what number exhibit this is. 23 BY MR. DUPREE: 24 Q I want to direct your attention to Joint Exhibit 25 Number 8, which is the lethal injection commission testimony OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2453 1 that was taken over a period of several days earlier this 2 year in Tampa. Did you testify before the lethal injection 3 commission? 4 MR. NUNNELLEY: Judge, I know it was be marked as 5 a joint exhibit but it came in over the State's 6 objection it is not a joint exhibit any longer it is a 7 Defense Exhibit. It was a joint exhibit or 8 authenticity purposes only. It's not a State exhibit 9 anymore. 10 THE COURT: Okay. Go ahead. 11 MR. DUPREE: I can -- you want me to renumber it. 12 MR. NUNNELLEY: It needs to be renumbered at some 13 point in time to make the record clear. 14 MR. DUPREE: Whichever you prefer. It doesn't 15 matter to me in the least. I can called is Defense 20 16 or 21, I couldn't care less. 17 THE COURT: We don't have -- it was Defense 18 Exhibit 8. 19 THE CLERK: No, sir. It was Joint Exhibit 20 Number 8 that came in. 21 THE COURT: Okay. 22 MR. NUNNELLEY: It was joint eight for ID. It can 23 up come in as Defense whatever in evidence but I object 24 to it having any connotation that suggestions that it 25 came in with the consent of the State. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2454 1 THE COURT: Defense Exhibit 8, is that okay? 2 THE CLERK: No, sir, we already have a Defense 3 Exhibit 8. 4 THE COURT: Oh, okay. 5 MR. DUPREE: Whatever the next number is fine. 6 THE COURT: Whatever the next numbering. 7 MR. DUPREE: What would that be so I could refer 8 to it for the record. 9 THE CLERK: That would be Defense Exhibit Number 10 20. 11 MR. DUPREE: Twenty? 12 BY MR. DUPREE: 13 Q Have you reviewed Defense Exhibit Number 20, which 14 is the lethal injection commission testimony earlier this 15 year? 16 A Yes, I haven't reviewed every word of it. It was 17 many, many pages but I reviewed large amounts of it. 18 Q And were you able to review the medical team 19 members, their medical number one, medical number two and 20 the primary executioner, did you review their testimony? 21 A Yes. 22 MR. HOOKER: George, do you need a minute to 23 remark everything? Do you need a minute to remark all 24 those volumes? 25 MR. NUNNELLEY: Don't just show me a face sheet OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2455 1 and tell me what it is without letting me look at it. 2 Wait a minute, whoa, whoa, now what's going on 3 here. Judge, hang on a minute. 4 MR. DUPREE: That's my work product. 5 MR. NUNNELLEY: Well, you gave it to me. I 6 thought you were offering that in evidence. Give me a 7 minute to look at this and figure out what pages these 8 are. You handed me your work product, don't expect me 9 not to look at it. 10 For the record, Your Honor, I've been shown pages 11 130, through 139 ending in mid-sentence of the 12 February 9, 2007 testimony before the Governor's 13 Commission on the Administration of Lethal Injection. 14 THE COURT: Okay. 15 MR. NUNNELLEY: And the person testifying appears 16 to be a medically qualified member of execution team, 17 examination of medical qualified member of execution 18 team is the heading. Not under oath for the record. 19 THE COURT: Okay. Go ahead. 20 MR. DUPREE: May I approach? 21 THE COURT: Please. 22 BY MR. DUPREE: 23 Q Doctor Heath, did you have an opportunity to 24 review that testimony of the person who's the medical team 25 member number one? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2456 1 MR. NUNNELLEY: It doesn't say medical team member 2 number one. I object to that characterization of it. 3 THE COURT: Sustain the objection. However the 4 person's identified. 5 MR. DUPREE: It says, "The examination of the 6 medical qualified member of the execution team." Now, 7 my objection to that, Judge, is you don't have any idea 8 if he's qualified so I object to using that term, 9 medically qualified. 10 MR. NUNNELLEY: Judge, it's his exhibit. That's 11 why I objected to it coming in. He's putting it in and 12 he's objecting to his own exhibits. That's why it's 13 not admissible. 14 THE COURT: Overrule the Defense objection. Go 15 ahead. 16 MR. DUPREE: Thank you, Your Honor. 17 BY MR. DUPREE: 18 Q Did you review that testimony? 19 A Yes, I did. 20 Q Okay. And did that person have problems -- first 21 of all, let's start with which arm did that person attempt 22 to insert an IV, the first arm? 23 A I'm reading from page 32, he's asked can he start 24 basically with the placing of the IVs and he says, "Mr. Diaz 25 was secured to the stretcher, I went to the left antecubital OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2457 1 space, mid-left arm, prepped the area, noticed visible 2 veins." And he goes on to describe the placement of that IV 3 catheter. 4 Q Did he have a problem inserting the IV? 5 A He doesn't describe it as a problem. He's asked 6 by somebody on the commission, I'm not sure who's asking 7 these questions. "Do you encounter anything unusual or 8 difficult however you want to phrase it in inserting the IV 9 into the left arm?" And his answer is, "The left arm, I was 10 able to thread it. It did take a little more effort than 11 unusual and it did thread all the way in. Once I connected 12 the IV tubing the fluid was able -- " And he's interrupted 13 and there's a discussion. 14 Q In your practice if you were attempting to insert 15 an IV and you encountered difficulty would that cause you 16 concern? 17 MR. NUNNELLEY: Your Honor, I'm not sure that 18 that's a fair question given that Doctor Heath has not 19 spoken with this person and this person's testimony was 20 not an under oath. A little more effort than normal is 21 not the same thing, I don't believe, as the resistance 22 or rather difficulty contained within counsel's 23 question. 24 MR. DUPREE: Your Honor, he can cover that in 25 cross. I'm asking him in his practice. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2458 1 THE COURT: Overruled. You may answer. 2 BY MR. DUPREE: 3 Q In your practice would that cause you concern? 4 A It heightens -- for all of us who put in IVs if it 5 doesn't slide in just glide right in, then if you know what 6 you're doing, then that speaks a very strong possibility 7 that it's not in the vein. It doesn't prove it but it 8 certainly raises the concern. And you would have to do more 9 testing now to convince yourself that that IV was properly 10 in place. 11 Q If you in your practice, if you had a situation 12 where they said it was more difficult than normal, would you 13 just tape the person up and walk away? 14 A Well, I don't do the taping. Usually the person 15 that put the IV in would do the taping, so they would put 16 the IV in, they would tape it up. If they were responsible 17 and had the opportunity to converse, then they would say, 18 you know, I'm not quite sure about that one. It was a 19 little hard sliding it in so you better be careful with it. 20 That would be a good hand-off of information. And I would 21 tight to do that kind of hand off, if I put an IV in 22 somebody and handed that patient off to somebody. I'm not 23 sure about that IV, it seems to be working but it's hard to 24 put it in. 25 Q So, you would want to continue monitoring that IV? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2459 1 A Yes. 2 Q Did the person, going back to the testimony, did 3 the person have problems or difficulty with the right arm in 4 placing the IV. Specifically direct your attention to page 5 134. 6 MR. NUNNELLEY: Judge, let me come up and look 7 over his shoulder. I don't have copy. I don't want to 8 take the Court's time to hunt one down. They're all 9 paginated differently. 10 THE WITNESS: Well, starting at the bottom of 133 11 he describes approaching the prisoner and putting the 12 tourniquet on. He says that he noticed scar tissue in 13 the linear fashion around the vein area and so he 14 noticed something that he thought was abnormal. He 15 didn't say it was difficult but it was an abnormality. 16 And then he preps the area and he attempts IV placement 17 and he got blood return but when he tried to advance 18 the catheter he got too much resistence and he said it 19 did not, it did not -- I think it's a typo here. It 20 says I got resistence to the point where it did want to 21 thread at all but I'm quite sure that would be a 22 transcription error. It would have been meaning or 23 saying where it did not want to thread at all. 24 BY MR. DUPREE: 25 Q What did he do as a result of that? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2460 1 A Said he couldn't put the catheter in so he says I 2 pulled that attempt out, I secured the site with some 3 dressing and tape and I access a vein approximately one to 4 two inches up the arm into the same vein that he felt was 5 proper. 6 Q What did the person do after that? 7 A He says that he was able to get blood return in 8 that IV also, and it didn't meet resistance until it was 9 with an inch in, I think that would be the IV that we looked 10 at in that picture where you can see under the tape that 11 it's not all the way into the skin, into the arm. And he 12 says he pulled it back about a quarter of an inch and it did 13 flow. Then he pulled it back a quarter of an inch and 14 that's a common thing to do. And so then he connected the 15 IV tubing and he secured it and that was it. That was it 16 with the placement of the IVs. 17 Q In your review of that person's testimony, did 18 that person stay and monitor the IV after he had difficulty? 19 A No. 20 Q Is that something that you would have done in your 21 practice? 22 A I don't if I would have either monitored myself or 23 I would have handed it off to somebody else who I knew was 24 going to be at the bedside monitoring the IV. 25 Q Again, and you reviewed the protocols we were OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2461 1 talking about May 9th and August 16th of 2006; is that 2 correct? 3 A Both of those protocols, yes. 4 Q Okay. And in those protocols did you review a 5 section that talks about problems being reported to the 6 warden? 7 A Could you refer me to -- 8 MR. NUNNELLEY: Judge, can I ask one question on 9 voir dire regarding the testimony he just went over? 10 THE COURT: Can you cover it on cross or? Go 11 ahead, what's your question? 12 MR. NUNNELLEY: The person who's testimony you 13 were just reviewing from the commission testimony. 14 THE WITNESS: Uh-huh. 15 MR. NUNNELLEY: Is not identified by name, is he? 16 THE WITNESS: In fact, I'm not even sure if it's a 17 he or a she. He was speaking through a voice 18 synthesizer. 19 MR. NUNNELLEY: That was going to be my next 20 question. You can't even tell me gender. 21 THE WITNESS: I am not aware of the person's 22 gender or any of their attributes. 23 MR. NUNNELLEY: Okay. That was all, Your Honor. 24 I have just wanted the record clear on that. 25 THE COURT: Okay. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2462 1 BY MR. DUPREE: 2 Q Let me go back to the beginning. 3 At the beginning of that person's testimony 4 based upon what that person testified to in front of the 5 commission, are you aware of that person's qualifications to 6 insert an IV? 7 A They do not say what licensure they possess. They 8 do not say if they have been credentialed in a healthcare 9 institution to provide medical care. I do not know if they 10 had their license revoked. If they have a license, could it 11 have been revoked, could they have background problems, 12 felony convictions or other things that would make them 13 inappropriate for starting IVs. I do not know if they have 14 experienced starting IVs that will be used for inducing 15 anesthesia, which is a different thing than the kind of IVs 16 that Doctor Sperry was talking about that patients might go 17 home with. So, I just don't know very much about their 18 background at all. 19 Q Did this team member report the problems in 20 inserting the IV to the warden? 21 A Not to my knowledge. 22 Q Okay. Let me direct your attention to page 137 23 and ask you if that refreshes your recollection? 24 A Okay. Question is asked, "Did you at any time 25 report to the warden that you had to choose a second site in OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2463 1 the right arm?" The answer is, "No, sir, I had no verbal 2 contact with the warden." Question, "Well, did you tell 3 anyone? Did you tell anybody else to the warden?" 4 "One of other team members that I was with 5 assisting me noted that." 6 Q Okay, that's fine. 7 Now, you mentioned that the person said that 8 he noticed some scar tissue? 9 A He or she. 10 Q He or she. Whoever that person is that's 11 testifying noticed scar tissue; is that correct? 12 A Yes. 13 Q Have you ever encountered scar tissue as part of 14 your practice? 15 A Yes. 16 Q And what are some the causes of scar tissue on a 17 person? 18 A I think they could have had an injury or surgery 19 to the area where I see a vein, where I'm intending to place 20 an IV. Or they could have had injury to the veins 21 themselves from either intravenous drug abuse, drugs like 22 heroine and cocaine, or from having had chemotherapy for 23 treatment of cancer. 24 Q We've heard testimony that the Department of 25 Corrections suspected that Mr. Diaz had been an IV drug user OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2464 1 prior to the time he was on death row. 2 Have you ever dealt with or had to administer 3 anesthesia to a person who was a IV drug user? 4 A Many times. 5 Q Could you please tell the Court some of the 6 problems that are associated with doing that in your 7 practice? 8 A Well, we have people that abuse IV drugs. They 9 put needles into their veins many, many times and often the 10 drugs that they're injected are not sterile and they often 11 have contaminants and over time the veins get irritated and 12 inflamed and then scared from that process. 13 And also, they are often getting infections 14 where they put the needles into the skin and those 15 infections cause scaring, not of the vein so much but of the 16 tissue overlying and surrounding the veins. 17 Q And what are some of the problems associated with 18 trying to administer or trying to insert an IV? 19 A Well, it can be -- so, if you have an IV drug 20 abuser sometimes it's no more difficult than a regular 21 person, sometimes it's somewhat more difficult to put an IV 22 in and sometimes you can't put a peripheral IV in at all. 23 Q And if you had somebody that you knew or you 24 suspected was a IV drug user, what kind of care would you 25 take in placing the IV? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2465 1 A Again, depends on how difficult it was. If I was 2 encountering difficulty and I saw scar tissue then that 3 would certainly alert me that these are compromised veins 4 and that I have to be much more careful in assessing that 5 the IV is in properly. I would have to be much more careful 6 in a continuing basis to make sure that it says in properly. 7 And I just have to be on the heightened level of vigilance 8 to the problems with IV access. 9 Q And that leads to us to the monitoring. Would 10 you, if you had somebody that was an IV drug user or you 11 suspected was an IV drug user, what would you do in terms of 12 monitoring that IV site? 13 A Well, again, everybody have visual, monitoring and 14 the ability to do tactile monitoring, you know, palpation to 15 feel it should anything make me feel the need to do that. 16 And I would just again, depending on how well the IV went 17 in, it's a little hard to describe. It's sort of an 18 inethical (ph.) thing again, but I would be more careful in 19 a person with whom I was concerned about their veins. 20 And also with IV drug abusers many times our 21 veins, some of their veins get blocked off and so you have 22 to be more careful injecting large volumes of fluid and 23 injecting them rapidly. 24 Q How about when you're looking at the protocols and 25 you're aware of the amount of fluids that are being injected OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2466 1 into the prisoner; is that correct? 2 A Yes. 3 Q Okay. And would you be concerned if somebody 4 suspected there were was IV drug user injecting that amount 5 of fluid into compromised veins? 6 A You would have to do it -- again, it depends on 7 what their veins were like. If I saw them and that they 8 were very compromised veins and I had to struggle to get the 9 IV in, then I would be very tentative and careful in 10 injecting the drugs. 11 Q Okay. Let's go to the phase two. We're talking 12 about the delivery of drugs. When you talk about the 13 delivery system and what do you mean by that term, delivery 14 system? 15 A I'm not sure you're exactly understanding what I'm 16 talking about with phase two. All the drugs get delivered 17 or they're supposed to get delivered by a delivery system 18 and there was some of that tubing that was shown in court. 19 Phase two or stage two is the administration of the 20 anesthetic drug. 21 Q Right. 22 A So if you could just clarify your question. 23 Q Let's talk about the mechanical system itself. 24 A Okay. 25 Q Let's talk about that first. And I'm going to OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2467 1 show you what's been marked as, this State's 1? Let's take 2 both. 3 BY MR. DUPREE: 4 Q I'm going to show you State's 1 and the 5 demonstrative aid that the Court saw. 6 Do you recognize the items in there? 7 A Many of these would be similar or identical to 8 items that I use in the hospital for administering 9 intravenous drugs. 10 Q So, there's nothing uncommon about that equipment? 11 A I don't believe so, no. 12 Q And let's start first, if you just show the Judge, 13 you can show him so he knows what you're talking about in 14 terms of -- 15 What are you hold nothing your hand? 16 A This is the bag of sodium. Can I open this up? 17 MR. NUNNELLEY: No. 18 BY MR. DUPREE: 19 Q How about you use this one? 20 A That will be better. This is a bag of sodium 21 chloride. One pulls this white tab out very vigorously and 22 firmly and then that exposes a -- 23 MR. NUNNELLEY: Judge, I'm getting really 24 concerned with the exhibits getting jumbled up. Can we 25 separate them somehow. I mean, never mind, if Mr. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2468 1 Dupree wants to mix them all up, that's fine with me. 2 Go ahead. I withdraw the objection. 3 THE COURT: Go ahead. 4 THE WITNESS: So, then one pops off this little 5 cap here and that reveals the spike where someone 6 spikes that through the diaphram that's revealed that's 7 been revealed by pulling this off. That forms a water 8 proof seal and one primes the drip chamber and the IV 9 tubing. Priming means start filling it up with fluid. 10 And Doctor Sperry was talking about other features of 11 it, so I don't know if I need to belabor that but 12 there's an injection sideport right here. This is a an 13 unusual way of doing it. Usually the drugs would be 14 injected directly into the hub right here, not have the 15 interposing IV lines. I've never seen anybody in an OR 16 or ER or ICU using a sideport like, this sideline to 17 inject it. They would just inject directly into the 18 port like that. 19 MR. NUNNELLEY: Okay. Judge, now he's taking the 20 exhibit apart. I object to that too. 21 THE COURT: Overruled. They used to do what? 22 THE WITNESS: Usually, always in my experience 23 there's no line like this going between a syringe and 24 an injection hub. Usually one attaches a syringe 25 directly into this hub and then injects like that. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2469 1 I've never seen somebody inject through an extra piece 2 of extension and like this and there's a good reason 3 why one wouldn't want to do that is that when you empty 4 your syringe, whatever you last injected in there is 5 still remaining in that tubing. You have no way of 6 advancing it through after your last injection. 7 Anyway, we like to have things go all the way 8 through and not leave any residual, stagnant fluid in 9 an IV tubing. That's also a place where infection can 10 build up or something like. So, in my experience I've 11 always seen it injected directly into a hub or port 12 right on the main line tubing like this. 13 BY MR. DUPREE: 14 Q Could you also describe for the Court some 15 problems that may occur in injecting drugs through the 16 tubing? 17 A It can kink, it can leak, it can leak in 18 particular at places where an extension is put on it so if 19 one has -- this is called an extension set, which is an 20 extra piece of tubing and that might be added to the end of 21 the tubing. And this is called a Luer Lok, the places where 22 they join together and that's a common site for leakage. 23 And there's reports in literature drugs leaking through here 24 and people not being anesthetized properly because it's 25 leaking from Luer Loks. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2470 1 THE COURT: Put that back together for me? 2 THE WITNESS: I'm sorry, yeah. 3 I think it was like this with the side extension. 4 THE COURT: Put the cap back on there, if you 5 would. It's over there it's on the table. Thanks. 6 THE WITNESS: Yeah, the bag back. 7 THE COURT: Now -- 8 MR. NUNNELLEY: You're mixing the exhibits up, 9 doctor. 10 THE WITNESS: I'm not sure where this one goes. 11 MR. DUPREE: This one goes in here. 12 THE WITNESS: Okay. 13 THE COURT: Okay, that's fine. 14 MR. DUPREE: Judge, just so I can clarify for the 15 record. This is just a demonstrative aid and has not 16 been introduced into evidence? 17 MR. NUNNELLEY: You can introduce it if you want 18 to. You objected when I offered. 19 BY MR. DUPREE: 20 Q I would like to introduce just the tubing. 21 MR. NUNNELLEY: The demonstrative aid is actually 22 in evidence? 23 THE CLERK: June 19th, State's Number 1 on May 24 21st. 25 MR. DUPREE: So it is in evidence for the State, OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2471 1 okay. 2 MR. NUNNELLEY: The whole thing's in evidence, 3 George? 4 THE CLERK: Yes. 5 MR. NUNNELLEY: Okay. Thank you. 6 MR. DUPREE: That's fine, Judge, that will solve 7 that problem. 8 Your Honor, could we take like five minutes? 9 THE COURT: Sure, absolutely. Let's take a break. 10 Let us know when you're ready. 11 MR. DUPREE: Okay. Thank you, Judge. 12 THE COURT: Just a minute. Just a little 13 technical thing here. We just want to put on the 14 record that the clerk is going to take a break and the 15 bailiff is going to protect the evidence while the 16 clerk does that. And when the clerk comes back, then 17 she will take over and the bailiff will be released, 18 okay. 19 MS. SNURKOWSKI: No objection. 20 MR. HOOKER: No objections by the Defense, right? 21 MS. KEFFER: No, Your Honor. 22 THE BAILIFF: Be in recess. 23 (Recess was taken.) 24 THE COURT: Okay. Thank you, resuming our 25 hearing. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2472 1 THE BAILIFF: Please be seated. 2 THE COURT: All right. You may proceed with the 3 last witness. 4 BY MR. DUPREE: 5 Q All right. Doctor Heath, where we left off, I 6 believe we were talking about the monitoring of a person who 7 you're going to induce anesthesia on them. We talked 8 generally about some problems that are involved in 9 monitoring a person. What would you do in your practice to 10 monitor a patient who you're going to induce anesthesia on? 11 A The challenge is to find out, is so ascertain 12 their anesthetic depth and there's no single number or 13 monitor that we can use to give us that information. And 14 instead, what we do is we continuously monitor and 15 intergrade multiple streams of information that are flowing 16 into us, both from the appearance of the patient, their 17 response to various stimuli, various monitors like their 18 EKG, their blood pressure, the carbon dioxide that they're 19 releasing. There are a variety of things that we would use 20 to -- oxygenation of the blood when they're on heart lung 21 machine. A variety of things that we use to give us 22 indications of the depth of anesthesia. None of them on 23 their own will give us a number that tells us what the 24 correct answer is. 25 Q When you monitor anesthesia in your practice, do OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2473 1 you do that from a distance? 2 A In the great majority of cases I'm at the head of 3 the bed. For the kind of anesthesia that I do is virtually 4 always at the head of the bed. 5 Q Why is that? 6 A The closer we are to our patients the better we're 7 able to monitor the anesthetic depth and their wellbeing. 8 Q When you're talking about monitoring anesthetic 9 depth, what are you talking about? 10 A I'm talking about trying to ascertain their planed 11 anesthesia, depth of anesthesia. Are the lightly 12 anesthetized so that a stimulation might wake them up? Are 13 they very deeply anesthetized so you can do anything to 14 their body and it would cause no response whatsoever. 15 Q And when you've induced anesthesia on one of your 16 paints and you're monitoring what's the farthest distance 17 you get away from your patient? 18 A So, there are other tasks that I had to do while 19 I'm providing general anesthesia, so I might step several 20 feet away to draw up other medication or hang an IV bag or 21 enter some information on a chart. I'm within a very 22 circumscribed area. It's right at the head of the bed. 23 Q And why would you stay close to the patient? 24 A Again, the closer one is the more one's able to 25 assess their anesthetic depth and their well-being. And OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2474 1 also, we need to see what the surgeons are doing because 2 we're using the surgical stimulation to guide our assessment 3 of anesthetic depth and we are looking for bleeding and 4 other problems. 5 Q When you're monitoring a patient and it's your 6 responsibility, not your supervising somebody else but it's 7 your responsibility, do you monitor that person from another 8 room? 9 A Never. 10 Q Why is that? 11 A It's much more difficult or to do so. It becomes 12 very challenging to monitor somebody's anesthetic depth from 13 a different room. 14 Q Well, we've heard testimony here that the, in 15 fact, let me just do this. 16 A I would just like to clarify. I never do that 17 because my practice does not involve the one situation where 18 people do monitor from a different room which is for 19 patients who need anesthesia while they're getting an MRI 20 procedure so anesthesiologists do sometimes monitor from a 21 different room but I never do. 22 Q Okay. 23 MR. DUPREE: May I approach, Your Honor? 24 THE COURT: Sure. 25 BY MR. DUPREE: OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2475 1 Q I'm going to show you a composite exhibit it's 2 State's Number 8 and I'm going to show you four pictures. 3 One is marked 8-Z. 8-EE, 8-CC and 8-Y. I'm going to 4 represent to you that those photos have been entered into 5 evidence and they're supposed to be the execution chamber 6 and the chemical room at Florida State Prison. 7 Do you recognize those photographs, doctor? 8 A Yes, I do. 9 Q And if I could, I would like to talk to you first 10 of all about 8-Y. 11 MR. NUNNELLEY: Judge, I'm going to object to him 12 testifying about what's wrong with this, which I'm sure 13 is what he's going to do. He doesn't have a room like 14 this in his OR theater, he doesn't monitor anesthesia 15 from a different room, he's just testified that other 16 anesthesiologists do. This is not an operating suite, 17 it's an execution facility. They are two different 18 things. Whatever he has to say about this is 19 irrelevant. 20 THE COURT: Overruled. Let's hear the question 21 first. 22 BY MR. DUPREE: 23 Q First of all what does 8-Y depict? 24 A That's this one? This is what in many states 25 would be called the actual execution chamber, the chamber OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2476 1 where the prisoner is in when they're being executed and 2 this shows mirrored windows, three mirrored windows above 3 that. 4 MR. NUNNELLEY: Your Honor, can I voir dire the 5 witness to find out the basis of his knowledge about 6 these photographs. He wasn't here when this testimony 7 came in. I want to know who told him what these 8 pictures are. 9 THE COURT: You can cover it on cross. 10 Go ahead. 11 BY MR. DUPREE: 12 Q Go ahead. 13 A So, it shows that similar to many states a gurney, 14 an execution room with a window or windows in this case that 15 are half-mirrored windows that are looked down over the 16 gurney. 17 Q All right. Now, in your practice if this was a 18 patient sitting here on the gurney where, would you be 19 typically when you're trying to induce surgical anesthesia? 20 MR. NUNNELLEY: Your Honor, I'm going to object to 21 the relevancy of the induction of surgical, the 22 question about surgical anesthesia. We're not talking 23 about the induction of surgical anesthesia because the 24 objective of such is that the patient wake up. That is 25 exactly the opposite result desired and achieved in the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2477 1 context of an execution. 2 MR. DUPREE: Your Honor, we're going to tie this 3 up. 4 THE COURT: Overruled. Go ahead. 5 BY MR. DUPREE: 6 Q Where would you been? 7 A So, I would be standing -- the gurney would be 8 further away from the wall so that I could stand between the 9 wall and then -- I would be standing at the head of the bed. 10 They would have to move the gurney out so there was room to 11 work and stand. Sometimes I would be standing at the side 12 of head right there. 13 Q And why would you been doing that? 14 A As we discussed, to make sure that the drugs get 15 in properly, that I can monitor the IV sites. The IV tubing 16 is only a few feet long, so I wouldn't be able to stand any 17 further away and inject the drugs. It's a bedside 18 procedure. And then so that I can monitor the patient's 19 status. 20 Q All right. Would you want to be, in your practice 21 would you want to be standing behind the wall looking 22 through a one-way mirror to monitor a patient? 23 A I don't think there's any anesthesiologist in this 24 country that would induce anesthesia from a different room 25 through a hole in the wall. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2478 1 Q Let me next show you which is 8-Z in evidence and 2 I'm going to specifically direct your attention to the 3 silver rack that's been described as where they're going to 4 put the syringes in the port and push. 5 Have you ever seen a rack like that before? 6 A I've never seen anything like this in a medical 7 context. It looks to me a little bit like what I put on my 8 boat for a fishing pole. 9 MR. NUNNELLEY: Your Honor, I'm going to object to 10 that kind of editorial comment. No, I'll withdraw the 11 objection. It goes to the witness' bias. I'll let it 12 stand. 13 THE COURT: Go ahead. 14 THE WITNESS: I apologize. 15 BY MR. DUPREE: 16 Q Just go ahead. 17 A I've never seen anything like this in any kind of 18 medical context. My understanding is it's for holding the 19 syringes. I've never seen or heard anything remotely 20 related to or similar to this. It's bizarre. 21 MR. NUNNELLEY: Your Honor, I'll object. Move to 22 strike the witness's continued editorialization. This 23 time he says it's bizarre. 24 THE COURT: Deny the motion. Go ahead. 25 BY MR. DUPREE: OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2479 1 Q In terms of the placing of the syringes into these 2 ports here, what would be the problem associated with 3 injecting material into that? If you were using the syringe 4 and you were pushing, what would be the problem? 5 A Well, an important part of knowing whether an IV 6 infiltrated, which is critical, is you have to have that 7 feel of back pressure from a syringe plunger as you are 8 trying to advance the drugs or advance the plunger. And as 9 I understand this to be used, it's holding the syringe and 10 in the rigid metal structure and so the person would just be 11 pushing with their hand but they wouldn't have the 12 interaction between the two hands to tell them, give them 13 the proper feel of whether the drugs are flowing in 14 properly, into a properly situated IV. So, I don't know 15 what to say except I've never seen anything like this -- 16 Q All right. 17 A -- in a medical context. 18 Q Now, going back to 8-Y which is the gurney in 19 front of the room. There's been testimony that the tubing 20 that's going to come out and it's going to be inserted into 21 the inmate's arm, it's going to be taped along the gurney 22 rack on the side, the metal and then it's going to go 23 through this port along with the saline bags and then 24 directing your attention back to 8-Z, it's going to come 25 through, it's going to be hung up and the bags are going to OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2480 1 be hung up here on this hook. 2 A Okay. Where is the inside of this port on this 3 picture? 4 Q Here. 5 A Is that covered in this picture? 6 Q Yes. 7 A Okay? That's very similar to what I've seen in 8 some other execution facilities. 9 Q Okay. How about the length of tubing and the way 10 that the tubing is run from the top here down to the portal 11 out the portal and along the gurney. Is there problems 12 associated with the length of tubing? 13 A Never do it in a clinical setting. You want to 14 minimize the length of the tubing because every piece of 15 tubing and especially every connection that you have to put 16 in is an opportunity for a problem. We want to avoid 17 problems as much as possible. 18 Q Now, directing your attention to 8-CC, which is a 19 side view of 8-Z. There's been testimony that there's going 20 to be EKG monitors to the left of the picture. There's a 21 clock that says 2:26 and up to left of that there's going to 22 be EKG monitors. And the two medical team members are going 23 to be standing here watching the EKG and there's also a 24 flat-screen monitor which is to the right on 8-Z and they're 25 going to be able to monitor the inmate's IV access and his OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2481 1 face by way of the monitor. 2 MR. NUNNELLEY: Just make it clear or for the 3 record that the person monitoring in the flat-screen 4 monitor is also a medical member of the team. 5 BY MR. DUPREE: 6 Q And first of all, directing your attention to the 7 back side or the EKG where there's going to be two medical 8 team members, in your opinion is that and advantageous place 9 for them to stand to monitor for the IV access and for 10 anesthetic depth? 11 A No. 12 MR. NUNNELLEY: Your Honor, that assumes facts not 13 in evidence. I object to it. The people standing at 14 the back side of the executioner's booth are monitoring 15 the EKG monitors and Mr. Dupree said that and now he 16 has them monitoring IV depth and looking -- anesthetic 17 depth and looking at the IVs. That's not what the 18 testimony is. Absolute mischaracterization of it. 19 THE COURT: Overruled. Go ahead. 20 BY MR. DUPREE: 21 Q Go ahead. 22 A You're right. They can't monitor -- 23 Q Just answer the question. 24 A They can't monitor the IVs properly or effectively 25 from that location. First of all, you can't do it from a OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2482 1 different room in the way that it would need to be done 2 during the induction of anesthesia and they're back from a 3 window, which shouldn't be there in the first place. 4 Q Is there a problem with one-way mirrors? What are 5 the problems associated with that? 6 A Well, to me one of the biggest problems with 7 one-way mirrors is the witnesses there's no transparency so 8 the witnesses can't see what the executioners are doing. 9 MR. NUNNELLEY: Your Honor, I'm going to object. 10 Move to strike. This witness is not -- this is a legal 11 conclusion that he's drawing now about transparency. 12 The 2007 trendy term we've been hearing in here and 13 it's not something that this witness is qualified to 14 speak of. I object to it and move to strike it. 15 THE COURT: What is your question? 16 MR. NUNNELLEY: Your Honor, the witness's 17 testimony was he objects to the one-way mirror because 18 it precludes transparency. That has absolutely nothing 19 to do with the issues before this Court. It is 20 evidence of this witness's abject bias and I move to 21 strike it. 22 THE COURT: What is your question? 23 MR. DUPREE: My question was are there problems 24 associated with the one-way mirror? 25 THE COURT: Overrule the objection. You may OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2483 1 answer. 2 THE WITNESS: It would be helpful to me to try to 3 have a scientific understanding of what is happening in 4 lethal injection and what is going wrong with lethal 5 injection as in Mr. Diaz's execution for people to have 6 been able to see what all the folks behind that, in 7 that room were doing at the time. That's what I was 8 trying to explain. 9 The other problem with the one-way mirror is by 10 necessity it's got materials in it that when you look 11 through it when the people in this room are trying to 12 look through and I looked through a bunch these mirrors 13 in different execution chambers. It's like looking 14 through sunglasses. It's got a shading attribute to it 15 and that's what allows it to reflect the light back. 16 Witnesses can't see through it. So it impairs the 17 optics. 18 And then also it acts as a sound barrier and part 19 of knowing, being able to assess anesthetic depth 20 involves being able to hear any noises that the patient 21 might make. 22 And so by having a window there, it means that 23 people in the drug chamber are further isolated, both 24 geographically but also from an acoustic point of view 25 from what's gone in the chamber. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2484 1 BY MR. DUPREE: 2 Q So, it's not just a matter of watching and feeling 3 it's also hearing a person? 4 A Yes. 5 Q Okay. 6 MR. NUNNELLEY: Are you done with that? 7 BY MR. DUPREE: 8 Q Now, does remote delivery of drugs cause any 9 specific problems? When I talk remote delivery of drugs in 10 terms of the way Florida execution process works, where the 11 delivery of the drugs is going to be from another room 12 behind a wall behind a one-way mirror. Does that cause any 13 concerns for you? 14 A Yes, in medicine, in anesthesiology we would only 15 deliver drugs from a remote location in exigent 16 circumstances and that exigent circumstances is where we 17 can't be physically close to the patient. For example, if 18 they're in an MRI tube where all we can see is the soles of 19 their feet. I mean, they're otherwise completely inside 20 this big, very big tube. That would be a situation if they 21 need anesthesia, we would be compelled to give drugs in a 22 situation where we couldn't monitor them. But we would 23 never induce anesthesia in that set. When we have to do 24 anesthesia in MRIs, you always induce anesthesia while the 25 patient's outside the tube and then insert them on, glide OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2485 1 them into the MRI machine after assessing their anesthetic 2 depth and all that. 3 Q Now does one -- 4 THE COURT REPORTER: Say that one more time. 5 MR. DUPREE: I'm sorry. 6 BY MR. DUPREE: 7 Q Does remote delivery of drugs render a delivery 8 system failure more likely? 9 A Yes, it's much more prone to have a failure and 10 it's much more likely that a failure will go undetected. 11 Q And why would that be? 12 A I think it's self evident. If you're not there in 13 the room to see the consequences of what you're doing. If 14 you're taking actions in one room and the consequences are 15 taking place in a different room, it's harder to have good 16 surveillance and monitoring and see if things are not 17 working. The way this tubing is configured the people in 18 the drug room obviously can't see its full course, its full 19 path. There are areas of tubing that are out of view and 20 that's something that's been a problem in a lot of states 21 and the judges have wanted to make sure that's corrected. 22 Q Have you ever heard -- 23 MR. NUNNELLEY: Your Honor, I'm going to object 24 and move to strike the gratuitous, volunteered comment 25 that judges have wanted to make sure something is OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2486 1 corrected. 2 THE COURT: Strike the remark. 3 MR. NUNNELLEY: Your Honor, I would also ask that 4 this witness be directed by the Court not to make 5 gratuitous comments and not to state legal conclusions. 6 Whatever he's an expert in he's one not a lawyer. 7 THE COURT: That's fine. Go ahead. 8 BY MR. DUPREE: 9 Q Sir, have you ever heard the term depth of 10 anesthesia. 11 A Yes, we use it all the time in discussing our 12 cases and we do. 13 Q And generally what does that mean? 14 A Anesthesia is not like being pregnant when one is 15 either pregnant or not pregnant. There are different levels 16 or depth of anesthesia ranging from a person who is just 17 sedated but or groggy but who could still respond to 18 stimulation down progressively to a person who's had so much 19 anesthetic drug that there's no electrical activity in their 20 brain whatever so far and their bodies have no response to 21 any kind of stimulation. 22 Q Now, as you induce deeper anesthesia are there 23 problems associated with inducing the deeper anesthesia as 24 opposed to somebody who's just groggy? 25 A Each of them, each layer or depth of anesthesia is OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2487 1 a different state and had its own considerations and as one 2 moves a patient up and down those layers of anesthesia, 3 which might go up during a case depending on how painful it 4 would be, how much stimulation is going on. They each have 5 their own considerations. 6 Q In an execution setting, in a judicial execution 7 setting is depth of anesthesia an important term? 8 A If you're using these three drugs, it's extremely 9 important because the last drug, potassium, causes extreme 10 pain and pancuronium, if a person is trying to breathe they 11 won't be able to and that would cause the agony of 12 suffocation. I don't think suffocation is exactly a painful 13 thing, but it's an agonizing thing. 14 Q And have you ever heard the term surgical plane of 15 anesthesia? 16 A Yes. 17 Q And what does that mean? 18 A It means depth of anesthesia that is, where one 19 can perform surgery on a patient and they will not respond 20 to it. 21 Q Now is surgery a painful process? 22 A It depends on what kind of surgery is being done. 23 When we use the term surgical anesthesia, we're referring to 24 a depth of anesthesia where one could do a painful surgery 25 like cutting somebody's abdomen open and doing surgery OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2488 1 inside their abdomen. Surgical plane of anesthesia would be 2 one where it was appropriate for that level of painful 3 stimulation. 4 Q And how do you term that? How do you determine if 5 somebody's at the proper anesthetic depth for surgery? 6 A It varies from person to person. We use our 7 monitors and our assessment of the person of their 8 anesthetic state and their response to a lighter 9 stimulation, so the surgeon may make a small incision or 10 pinch with a hemostat, which would be very painful, but not 11 as painful as actually cutting the person open. They would 12 do a stimulation like that to assess whether we're seeing or 13 how much of a response we're seeing. 14 Q Have you ever been in a situation, a surgical 15 situation where a person was not at the proper anesthetic 16 depth? 17 A Yes, I have. 18 Q And what do you do in that situation? 19 A If they're the not in the proper depth they're 20 either too deep or too light and we correct accordingly. If 21 somebody's too deep, then we turn off the anesthetics and we 22 allow them to partially wear off. If the patient is too 23 light, then we it's an emergency, it's an anesthesia 24 emergency. If the patient is waking up while paralyzed 25 under surgery and we would as rapidly as possible deepen OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2489 1 their anesthesia. 2 Q Okay. You said you've reviewed the protocols for 3 both May 9th and August 16th of last yes; is that correct? 4 By that I mean May 9th of 2007. 5 A Yes. 6 Q One of the drugs that's used in the protocols is 7 potassium chloride. 8 A Yes. 9 Q Are you familiar with the use of that drug? 10 A Yes. Although not in these concentrations. 11 Q Can you just tell the Court how are you familiar 12 with potassium chloride and its uses? 13 A Potassium is an essential salt in our blood and 14 it's important for the electrical activity of cardiac cells 15 and also nerve cells and it has to be kept within a very 16 narrow range of concentrations or else those electrical 17 cells won't work. If the potassium gets too high or too low 18 the heart can have rhythm problems and then it can stop. 19 So, we -- and in the operations I do we're frequently 20 testing the potassium levels to make sure that they're not 21 getting out of range and not causing a problem and we -- our 22 IV fluids are designed to help keep the potassium within the 23 normal range. 24 Q I'm going to direct your attention to State's 25 Exhibit Number 2, which is the May 9, 2007 protocols. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2490 1 Page four of those protocols, Your Honor. 2 Number three potassium chloride and I'm going to ask you 3 what is the concentration that is used in Florida? 4 A So, it's two milliequivalents per ml. They draw 5 120 milliequivalents into 60 mls. that's two per. 6 Q And what would that -- if that was injected, no 7 anesthesia, no nothing and that was injected in a person, 8 what kind of a stimulus would that be for a person? 9 MR. NUNNELLEY: Your Honor, this is totally 10 outside the evidence. There has been no indication 11 that potassium chloride has ever been injected in any 12 inmate in this State when he wasn't under anesthesia. 13 I don't see the relevance of it. It's a hypothetical 14 that amounts to histrionics. It has no basis in the 15 evidence. 16 THE COURT: Can I ask one question? 17 MR. DUPREE: Absolutely, Judge. 18 THE COURT: Doctor, milliequivalent is something 19 that I haven't encountered before. Is that a measure 20 of volume or weight or what is a milliequivalent? 21 THE WITNESS: It's a measure of the number of 22 atoms or molecules. It's independent of the weight of 23 each atom or molecules. Different elements like 24 potassium or sodium, calcium or chloride have different 25 atomic weights. This is a measure of the number of OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2491 1 those, whatever that molecule is. 2 THE COURT: A milliequivalent is a measure of 3 number of the number of molecules; is that right? 4 THE WITNESS: That's correct. And then when you 5 also include the volume that it's in, which they're 6 telling us also. They're telling us that you get 120 7 milliequivalents in 60ccs. That would mean that you 8 have two milliequivalent in every cc. 9 THE COURT: So,a milliequivalents is a measure of 10 atoms and of course, every atoms has its own associated 11 weight and volume. So, therefore although 12 milliequivalent is not directly related to those 13 things, it does relate to them because every atom has 14 its own weight and volume, right? 15 THE WITNESS: That is exactly correct. A 16 milliequivalent of potassium would have a different 17 weight than a milliequivalent of sodium, but it would 18 be same number of atoms or ions in each of those 19 milliequivalents. 20 THE COURT: And this is how many milliequivalents 21 are we talking about. 22 THE WITNESS: We're talking about 120. It's at 23 the top of paragraph three of page 4, 120 24 milliequivalent in 60ccs. 25 THE COURT: Okay. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2492 1 THE WITNESS: Sixty CCs is about the size of an 2 egg, maybe a little larger. 3 THE COURT: Okay. 4 BY MR. DUPREE: 5 Q And again, if potassium chloride was injected into 6 a person without anesthesia being administered beforehand 7 what would be the effect on a human body? 8 A In these concentrations as I was describing 9 before, potassium helps govern the electrical activity of 10 nerves and also heart muscle cells. And in this 11 concentration when it was in the arm where there are nerves 12 it would activate those nerves and cause extreme pain. 13 THE COURT: So potassium chloride without what? 14 Without what? 15 MR. DUPREE: If it was injected in a person. 16 THE COURT: Without? 17 MR. DUPREE: Without anesthesia. 18 THE COURT: Okay. 19 THE WITNESS: So, if a person were awake and/or 20 not in a surgical plane of anesthesia, it would cause 21 extreme pain by activating those nerve fibers. Once it 22 got to the heart, again the heart is an electrical 23 structure and it would interfere with the electrical 24 activity of the heart and cause it in these 25 concentrations would rapidly cause the heart to stop. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2493 1 BY MR. DUPREE: 2 Q How painful would that be to a person? 3 A The stopping of the heart? That's a good 4 question. It's not exact, it varies from experience to 5 experience. People feel like they're drowning because and 6 they're desperate for breath because the blood is no longer 7 brought from the lung and pumped into the rest of the body. 8 So the blood piles up in the lung and that can be 9 extraordinarily distressing sensation. 10 Q How about potassium chloride, somebody having 11 after heard attack how painful would that be? 12 A I'm in the realm of conjecture now. The heart has 13 a lot of nerves, we know that. 14 MR. NUNNELLEY: Your Honor, I'm going to object to 15 speculation. 16 THE COURT: Overruled. Go ahead. 17 THE WITNESS: We know the heart is very densely 18 innervated and can deliver tremendous pain like in a 19 heart attack but I don't believe anybody's ever had the 20 opportunity to interview a person afterwards who had 21 their heart stopped by concentrated potassium. Just 22 knowledge of how physiology works and the innervation 23 of the heart, one would expect that it would be very 24 painful. Though once it stopped the heart the person 25 would rapidly go unconscious within seconds. And then OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2494 1 once when he's irreversibly unconscious, I don't think 2 they can experience pain. 3 BY MR. DUPREE: 4 Q Okay. Let's talk about a little bit about the 5 drugs that are included in Florida's protocol as long as you 6 got to open there to page four. 7 The first drug that's supposed to be injected 8 into an inmate is what drug? 9 A Pentothal. 10 Q And what's the effect of injecting Pentothal into 11 somebody in the amounts of Florida gives? 12 A If it really entered their circulation at 13 five grams, entered their circulation and was delivered 14 around including to their brain, it would produce rapid and 15 extremely deep anesthesia. 16 Q And what do you mean by that? Describe at 17 five grams of thiopental were injected into somebody 18 intravenously what would be the effect? 19 A What you would see is that what we call the vein 20 to brain time, the drug had to travel up the vein through 21 the heart, get pumped out to the lungs, come back to the 22 heart and then get pump up to the brain. And that takes 23 anywhere from 30 seconds to three minutes depending on the 24 circulation speed of the individual. 25 Once the drugs had reached the brain, it OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2495 1 would within a couple of seconds transition the patient from 2 being wide awake to being very, very, deeply asleep or 3 unconscious. 4 Q And how about the next drug in the drug cocktail, 5 pancuronium bromide? Are you familiar with that drug? 6 A I am, yes. 7 Q What's the effect that drug would have on a 8 person? 9 A The pancuronium is a drug that it blocks the 10 transmission of nerve signals to muscles so that a person -- 11 we have nerves that travel say down our arm or our leg and 12 they innervate a block of muscle and when somebody's been 13 given pancuronium, it blocks the signal traveling from the 14 nerve to the muscle, so the person is still trying to send 15 out signals I want to move my arm or move my leg or 16 whatever, I want to talk but they're unable to because the 17 signal never reaches the muscle to cause it to contract. So 18 it has no effect on level of consciousness or ability to 19 feel pain or suffering or fear or happiness or sensation, 20 anything like that. It just effects our ability to move our 21 muscles. It doesn't effect all of our muscles. There are 22 some muscles that we have no control of the pancuronium 23 doesn't effect. For example, the heart is not, that muscle 24 is not effected by pancuronium. It continues to pump and 25 that's why pancuronium is so useful to us in surgery. We OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2496 1 can paralyze patients when we need to but it doesn't stop 2 their heart from pumping. It doesn't make their blood 3 vessels relax so that their blood pressure drops. It only 4 effects of muscles that we use to move, that we can control. 5 Q In your opinion do you know why pancuronium is 6 used in judicial executions? 7 A I have been -- I've heard it testified on why it's 8 been used. I don't know what's exactly in the heads of the 9 people who are using it. I've heard several reasons. 10 Q In your opinion. 11 A In my opinion? 12 MR. NUNNELLEY: Your Honor, it's hearsay for 13 somebody else's. He can give his opinion. 14 MR. DUPREE: I just asked him his opinion. 15 THE COURT: Go ahead. 16 BY MR. DUPREE: 17 Q In your opinion. 18 A In my opinion it serves no legitimate purposes. 19 Q Why is that? 20 A Because it greatly enhances the risk of an 21 inhumane euthanasia or execution depending if you're talking 22 about animals or people. 23 Q Let's talk about people first. 24 A Okay. It greatly enhances inhumane execution. 25 Q Can you explain why that would happen, it greatly OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2497 1 increases the risk? 2 A If you don't have pancuronium there and the 3 prisoner is in pain then they will presumably or very likely 4 vocalize, they'll scream or whatever they'll wriggle around, 5 and everybody will know that something isn't right, the 6 prisoner needs more anesthesia. 7 Once you give somebody pancuronium, you have 8 no idea if they're wide awake or not from looking across the 9 room. You can't possibly tell if a person's wide awake or 10 deeply asleep, they'll look exactly the same. So, it 11 totally thwarts the ability in this context to assess level 12 of consciousness. 13 Q Are there any other risks associated with 14 pancuronium during judicial executions? 15 A I wouldn't call it a risk. I'd say it's a problem 16 from a scientific point of the view. Again, one wants to 17 know it these executions are humane or not and when you give 18 pancuronium, you can't tell if somebody was awake or not 19 because they would look exactly the same. So, it thwarts 20 the ability of witnesses to tell people who have a 21 scientific interest in it what is, whether the execution's 22 being done properly or not. 23 Q Okay. In reviewing the lethal commission 24 testimony that you did, is there anything that would tell 25 you when the thiopental and when the pancuronium bromide OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2498 1 were administered to Mr. Diaz in this case? 2 A Both Florida doesn't keep the kind of execution 3 logs that other states do, so I have not been able to 4 review. What other states do is a timeline, like an XL 5 spreadsheet where they enter in the title and event or they 6 just keep track of it on a blank pad. 7 Q Have you seen those documents in regard to Mr. 8 Diaz's execution? 9 A I haven't seen anything like that from any 10 execution in Florida. 11 Q Okay. Now, if the thiopental was administered and 12 in terms of the doses Florida recommends in the protocol, 13 five grams, and a person continued breathing, what would 14 that indicate to you? 15 A If five grams were successfully delivered in a 16 human being, they could not be breathing. It's not 17 possible? 18 Q And what if they were breathing? What would that 19 indicate to you? 20 A They could not have gotten five grams successfully 21 delivered in their circulation. It's not possible. 22 Q How about if there were reports after seven 23 minutes after, as long as seven minutes after the injection 24 of thiopental the person was talking, and breathing and 25 moving? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2499 1 A It's not possible if they received five grams of 2 thiopental into their circulation. 3 Q Why is that? 4 A Because that dose of thiopental will reliably stop 5 somebody from breathing and render them deeply unconscious. 6 Q In terms of pancuronium -- 7 A I should clarify, if it gets in their circulation. 8 Q Right, okay. 9 With regard to the pancuronium and 10 specifically as it relates to Angel Diaz's execution. If 11 the pancuronium was injected, what physical effect would you 12 expect to see on Mr. Diaz? 13 A Injected into his vein or? 14 Q Into his vein. 15 A Without thiopental or after -- 16 Q After thiopental. 17 A If the thiopental had gone properly into his vein, 18 I just want to make sure I understand the set up. 19 MR. NUNNELLEY: Judge, I need to understand the 20 question too. The witness and the lawyer are talking 21 over each other. Can we start over so I can hear the 22 question too. 23 THE COURT: Sure. 24 MR. DUPREE: I'll rephrase it Judge, no problem 25 doing that. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2500 1 BY MR. DUPREE: 2 Q After five grams of thiopental is injected into a 3 person and then the pancuronium is injected into a person in 4 accordance with the Florida protocols, what physical effects 5 would you expect to see on a person who had those two drugs 6 injected in that order into a vein? 7 A If those two drugs properly went into their vein, 8 then into their circulation, the first drug that would have 9 its effect it's going into a vein first would be the 10 thiopental and after that vein to brain time the person 11 would very rapidly go asleep over a period of a few seconds. 12 They would go from being a breathing person who is maybe 13 looking around the room or looking at their loved ones 14 through the window or whatever they're doing or maybe 15 talking. 16 MR. NUNNELLEY: Your Honor, I'm going to move to 17 strike the looking at the loved ones gratuitous 18 comment. That's inappropriate from this witness. 19 THE COURT: Overruled. Go ahead. 20 THE WITNESS: I just said that because many people 21 are looking at their loved one. 22 MR. NUNNELLEY: Your Honor. 23 THE COURT: Go ahead. 24 MR. DUPREE: You don't have to answer him. Answer 25 my question. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2501 1 THE COURT: Go ahead. 2 THE WITNESS: Whatever they're doing, evidence of 3 conscious if they're conscious. Sometimes people are 4 also just lying still with their eyes closed and 5 they're not showing evidence of consciousness. They're 6 just maybe whatever they're doing, they're lying there 7 still with their eyes. 8 But as soon as the thiopental gets to their brain 9 within a couple of seconds they will stop all movement, 10 all breathing and then of course, they won't be 11 conscious so they won't be looking around the room or 12 do whatever else they were doing. 13 BY MR. DUPREE: 14 Q So, if the reports that seven to 12 minutes 15 afterwards the person was still moving, that his body was 16 moving, that his chest was moving, he was appearing to 17 breathe, that his Adam's apple was bobbing, that his head 18 was moving, that his eyes were blinking, his lips were 19 pursing, would that be something you would expect to see 20 with the injection of pancuronium after an injection of 21 thiopental into the blood stream in the amount that 22 Florida's protocols call for? 23 A I think you misspoken the after pancuronium. I 24 think you meant thiopental. 25 Q Both. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2502 1 A After the thiopental goes in once they're out 2 they're not going to move at all. With the five grams into 3 their circulation they will not, they should not move at 4 all. There's no electrical activity in the brain or 5 nervous. 6 Q Then you got the pancuronium. 7 A Then the pancuronium goes in. You will see if the 8 thiopental went in and shut down everything of the brain, 9 you won't see anything happen at all because they're already 10 completely not moving because the brain is not sending out 11 any signals telling them to move. So they're be no change. 12 They'll be motionless after the thiopental and then they'll 13 be continued to be motionless after the pancuronium. 14 Q Okay. Would you expect to see somebody who had 15 had a dose of thiopental and a dose of pancuronium in the 16 amounts that are called for in the protocols and it was 17 injected into the vein, would you expect to see them moving 18 seven to 12 minutes after injection? 19 A No, it's not possible that you would see that. 20 Q Would you expect to see him attempting to speak? 21 A No. 22 Q Would you expect to see them breathing? 23 A No. 24 Q Would you expect to see them, their Adam's apple 25 moving. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2503 1 A No? 2 Q Their chest moving? 3 A No. 4 Q Their head moving? 5 A No. 6 Q Their eyes blinking? 7 A No. 8 Q Now, let's go back, if we can. Again, I'm going 9 to direct your attention to Composite Exhibit 11. You've 10 already testified that in the Diaz execution that the 11 cannulas perforated, punched through the vein and that the 12 chemicals then would have been deposited in the soft tissue; 13 is that correct? 14 A Yes. I've testified to that, yes. 15 Q Okay. And in your opinion what effect on Mr. Diaz 16 would have when you injected the amount of drugs that are 17 called for in the Florida protocols, the five grams, and 18 pancuronium into soft tissue? What would be the effect on 19 Mr. Diaz? 20 A I'll render that opinion but I want to clarify 21 that well, we know what the effect would be because we know 22 the drugs went into his soft tissue and we saw the effects 23 which is over a period of tens of minutes he went from being 24 awake and conscious to being dead. And during that time he 25 transitioned through a period where he was moving around OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2504 1 where he was awake and then a period of time where it's less 2 clear whether he was awake or not and then period of time 3 where he appears to be completely immobile and then he's 4 pronounced dead. So this is the only, I said the best 5 documented situation where we know with absolute certainty 6 or virtual certainty that the IVs both extravasated, the 7 fluid extravasated and we have seen what happened. 8 Beyond that anybody who would opine about 9 this would be with considerable amount of conjecture. No 10 one's ever to my knowledge done scientific studies about 11 what happens when five grams of thiopental goes into 12 somebody's arms or 100 milligrams of pancuronium or 240 13 milliequivalents of potassium. These things have not been 14 studied -- 15 Q Why not? 16 A -- in a rigorous way. 17 Obviously, until now there's been no occasion 18 to try to understand what would happen if you did those 19 things but now of course, it's of interest to try to 20 understand what Mr. Diaz would have experienced and that 21 requires conjecture. In my opinion had anybody, including 22 me, who would render an opinion with an air of certainty 23 about it, would be overextending themselves. 24 Q Based upon your opinion within a reasonable degree 25 of medical certainty, can you see when Mr. Diaz would have OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2505 1 reached a state of unconsciousness? 2 MR. NUNNELLEY: Your Honor, I'm not sure if he can 3 answer that. I think he's already said he can't answer 4 it to a reasonable degree of medical certainty. 5 MR. DUPREE: That's why I asked him the question, 6 Judge. If he can't, he can't. 7 THE COURT: Overruled go. Ahead. 8 THE WITNESS: No, it's not possible for me. I 9 don't believe it's possible for anybody to say that 10 now. 11 THE COURT: To say what? What was your question? 12 MR. DUPREE: Is it possible to say when he became 13 unconscious, when Mr. Diaz became unconscious? 14 THE COURT: Okay. 15 THE WITNESS: No, I can't. I can say some time 16 after he stops looking like he was conscious and some 17 time before he was pronounced dead. I can give you an 18 interval but the exact time cannot be discerned. 19 BY MR. DUPREE: 20 Q Okay. If there is a delivery of five grams as 21 called for in the Florida protocol of thiopental, why would 22 you need to monitor anesthetic depth at all. If that 23 person's going to be asleep, if that person's going to be 24 unconscious, why would you continue to worry about 25 monitoring anesthetic depth? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2506 1 A Because as we know from Mr. Diaz, it doesn't 2 always get -- five grams doesn't always get delivered into 3 the circulation. And if less than five grams is delivered 4 into the circulation, then you have anesthetic depth becomes 5 the big question, the all encompassing issue to the 6 humaneness of the procedure. 7 Q And based upon your review of the transcripts and 8 the lethal injection commission and transcripts of this 9 hearing, do you have an opinion as to first of all, whether 10 the thiopental caused him to become unconscious? Do you 11 have an opinion as to the thiopental causing him to be 12 unconscious? 13 A Again, only conjecture. I do not know whether he 14 became unconscious because of thiopental or whether he 15 diffusing into his body and getting into his brain or 16 whether it was from pancuronium getting into his body and 17 his brain and then -- or not his brain, sorry, his muscles 18 paralyzing him and then becoming unconscious because of 19 being unable to breathe. Eventually if you can't breathe, 20 the brain blacks out and goes unconscious. 21 Q In terms of your opinion with regard to 22 pancuronium bromide causing the death of Mr. Diaz, what is 23 your opinion based upon? 24 THE COURT: Did he say the pancuronium bromide 25 caused -- OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2507 1 BY MR. DUPREE: 2 Q What is your opinion as to what drug caused Mr. 3 Diaz's death? 4 A Thank you, yes. 5 Q That's fine. 6 A I don't know what caused the death. He got three 7 drugs in doses each of which is capable of causing death and 8 I believe each of them on their own would cause death even 9 if injected into the arms as in Mr. Diaz. Obviously it 10 would take a lot longer if injected directly into a vein. 11 Which one as it were got there first, was it the knife or 12 the gun or the baseball bat that actually caused the death? 13 I don't believe there's enough scientific studies to -- 14 directly applicable to this to make that determination. I 15 would not be surprised if it were any one of the three. 16 MR. NUNNELLEY: Your Honor, I'm going to object to 17 this. The witness has said he doesn't know. That's 18 the answer. Now, we're pontificating, that's 19 inappropriate. 20 THE COURT: Overruled. Go ahead. 21 THE WITNESS: If someone did a rigorous scientific 22 study to address this question, I would not disbelieve 23 whatever answer they came up with whether the potassium 24 that killed him, the pancuronium or the thiopental. I 25 would be open to any of the three. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2508 1 BY MR. DUPREE: 2 Q In preparation for your testimony to form your 3 opinion, did you have an opportunity to read the lethal 4 injection testimony of the primary executioner in this case? 5 A I'm sorry, the testimony? 6 Q The testimony of primary executioner from the 7 lethal injection commission? 8 A In front of the commission, yes. 9 Q Did you read that? 10 A Yes. 11 Q Okay. 12 MR. NUNNELLEY: That doesn't appear to be what you 13 just gave me, Mr. Dupree. You've given me the 14 medically qualified personnel, the testimony of the 15 medically qualified team member that you have 16 previously examined this witness. 17 MR. DUPREE: I did, Judge, my fault. 18 MR. NUNNELLEY: Never mind, I've got my own copy, 19 thank you. That's not the right one there. Do you 20 need my copy to show him. 21 MR. DUPREE: I've got it. 22 MR. NUNNELLEY: Let me compare it; if I could, 23 sir. I want to see the copy he's fixing to give the 24 witness. I don't want to see the copy out of 25 somebody's briefcase. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2509 1 (There was a pause.) 2 MR. NUNNELLEY: Your Honor, for the record, what I 3 have been given is a document dated February 9, 2007. 4 It appears to be pages 63 through 88 of the Governor's 5 Commission on Administration of Lethal Injection, 6 examination of primary executioner. I note again, for 7 the record, this testimony is not under oath. 8 MR. DUPREE: May approach, Your Honor? 9 THE COURT: Sure. 10 BY MR. DUPREE: 11 Q Have you reviewed that testimony, sir? 12 A Yes. 13 Q Okay. I would like to direct your attention to 14 page 67 of that testimony. And on page 67 does the 15 executioner describe what happened as he began injecting 16 drugs into Mr. Diaz on December 13th, 2006? 17 A Yes. He says he's tapped on the shoulder to go 18 ahead and he starts injecting and he encounters, he uses the 19 word difficulty or difficult to inject the drugs. And 20 then -- 21 Q Let me stop you here for just a second. 22 Did he have any of problems -- 23 MR. NUNNELLEY: Your Honor, I'm going to object to 24 that because it mischaracterizes the testimony that was 25 given at the commission hearing. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2510 1 In fact, the testimony is that it became a little 2 bit difficult to introduce the chemicals in syringe 3 four. This witness's testimony leaves the record and 4 this Court with the impression that it was difficult 5 from the very beginning and that's not what the 6 testimony is. 7 MR. DUPREE: We're going to cover that, Judge, 8 believe me. 9 THE COURT: Go ahead. 10 MR. DUPREE: Okay. 11 BY MR. DUPREE: 12 Q As part of your preparations today, did you also 13 review the summary of the findings of the Department of 14 Corrections task force regarding the December 13th, 2006 15 execution of Angel Diaz that was submitted to James 16 McDonough, the Secretary of the Florida Department of 17 Corrections on December 20, 2006? 18 A I did, yes. 19 Q And I'm going to direct your attention to page 20 five of that. Did the primary executioner indicate to the 21 Department of Corrections when he started having problems? 22 A It says he starts, the primary executioner began 23 the delivery of sodium pentothal into the first arm, the 24 Line A, the left arm, and then he says quote, "The primary 25 executioner noted that the pushing of the chemicals was more OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2511 1 difficult and took two to three times longer than normal. 2 Both executioners had been advised to push slowly because of 3 concerns over the inmate's veins." 4 Q Okay. Thank you. 5 Now, do you have concerns in your opinion as 6 to if a person was injecting drugs in the amount of mirrors 7 one giving and they were harder to push, what concerns would 8 that raise with you? 9 A That something was wrong with the delivery of the 10 drugs. One possibility being that the drugs were 11 extravasating, leaking into the tissue in the prisoner's 12 arm. Then a possibility being that the IVs are kinked or 13 some other mechanical problem that's interfering with the 14 delivery. 15 Q Do you know what the person did about that when he 16 had that kind of resistance? 17 A A little unclear but he says a gentleman had 18 advised him to switch over to the other, he uses the word 19 gentleman, advised him to switch to the other arm. 20 Q Do you know whether or not anybody on the 21 execution team after the executioner was trying to push the 22 drugs in and it was more difficult than normal, did anybody 23 go out and try to check the line? 24 A It's my understanding at that point nobody did. 25 Later on after multiple attempts to inject they did but at OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2512 1 this initial time, no, they didn't go out. People went out 2 in the beekeeper suits. That's what I'm thinking of later 3 on. At this point no one's checking the line. The IV site 4 rather, let me clarify. 5 Q Did anybody attempt to check the IV site to your 6 knowledge? 7 A No. 8 Q Do you know whether or not anybody told the warden 9 that there was a problem with injecting those drugs? 10 A I don't believe anybody did at that point in the 11 procedure. 12 Q And then let me go ahead and direct your attention 13 to page 70 and 71 of the lethal injection Commission 14 testimony. Can you read through 70 and 71? Not out loud 15 just to yourself. 16 A Okay. 17 (The witness complied.) 18 A Okay. 19 Q Now, the lethal injection Commission the person 20 testified that he pushed in one, two and three and then he 21 began having problems on line four; is that correct? 22 A I'm not exactly, I think he had problems pushing 23 in one, two and three. 24 Q At the lethal injection commission did he testify 25 he only had problems beginning with line four? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2513 1 A Yes. 2 Q Okay. Is that what he told the Department of 3 Corrections in their report back in December of the previous 4 year? 5 MR. NUNNELLEY: Your Honor, I'm going to -- never 6 mind, I'll take the witness' answer, he doesn't know. 7 THE WITNESS: I don't know exactly what he told 8 them but I know what they concluded. 9 BY MR. DUPREE: 10 Q Let me go ahead and see if I can refresh your 11 recollection with the report from the Department of 12 Corrections. 13 A What they say is that both executioners reported 14 and I assume that reported mean that refers to the whole 15 paragraphs and it says that the primary executioner noted 16 that the pushing of the chemicals was more difficult and 17 took two to three times longer than normal. 18 Q Thank you. 19 Now, in the lethal injection Commission, his 20 testimony before that commission, he testified about line 21 four. Once he met resistance in line four what did he do 22 then? 23 A That's where the gentleman advises him to switch 24 arms. 25 Q Okay. And what happened based on the lethal OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2514 1 injection Commission testimony, what happened then? 2 A This is broke into two areas in the testimony so 3 can you -- 4 Q Go to page 71. 5 A Okay. So, he switches to Rack B and he encounters 6 what he calls "some resistance" while he's injecting the 7 drugs. So, he doesn't switch from Rack B. He going from 8 Rack A but he switches to Line B and he encounters "some 9 resistance" while he's doing that. 10 Q Let me stop you right there. 11 In terms of does that raise concerns in your 12 mind. You've now switched from the one arm in Line A now 13 you're on line B on the other arm and meeting resistance 14 immediately with the pancuronium. What concerns would that 15 raise in your mind? 16 A Well, first of all, it's totally wrong to have 17 injected the pancuronium into the other arm. 18 Q Why? 19 A Because if you've given thiopental into somebody 20 and you don't know if they're awake or asleep, you don't 21 know if the drug got in and you're feeling resistence and 22 you can't injection anymore and you switched over and inject 23 pancuronium into a person who you have no evidence, in whom 24 you can't even have an expectation that they're 25 anesthetized, that's paralyzing an awake person. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2515 1 Q And then what did the person do after that? 2 A It's a little hard for me to tell. It gets kind 3 of complicated. It says that he, I think he's a little 4 having a hard time keeping task of it. Because he said, 5 excuse me, he says he takes -- that's a question, sorry. 6 Syringe five from Rack A and puts it into Line B. So now 7 he's starting to switch between the racks and the lines. To 8 summarize it ends up going back and forth between IV lines 9 and racks injecting different drugs into different arms. 10 Q Okay. Now, do you know based upon the testimony 11 of the primary executioner before the lethal injection 12 Commission what his qualifications are to perform the job 13 that's doing for the Florida Department of Corrections? Do 14 you know anything about his qualifications? 15 THE COURT: Before we get to that. 16 MR. DUPREE: Yes, sir. 17 THE COURT: Can you all clarify something for me? 18 We've got two arms. One is Line A, one is Line B. 19 MR. DUPREE: Yes, sir. 20 THE COURT: And we have racks? 21 MR. DUPREE: Yes, sir. 22 THE COURT: How many racks? 23 MR. DUPREE: Two. 24 THE COURT: We got two racks for each arm. 25 MR. DUPREE: No, you got two racks, period. You OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2516 1 have Rack A and Rack B. 2 THE COURT: Is that the same things as Line A and 3 Line B. 4 MR. NUNNELLEY: Uh-uh, no, no, whoa, whoa, whoa. 5 MR. DUPREE: Yes, yes. 6 MR. NUNNELLEY: No, Rack A and Line A are not the 7 same thing. 8 MR. DUPREE: That's not what he's asking. 9 MR. NUNNELLEY: Well, maybe I misunderstood then. 10 MR. DUPREE: They have two racks of drugs. 11 There's a Rack A and Rack B. There's a Line A, which 12 in this case in the Diaz case was the left arm and 13 there's a Line B, which was the right arm. What they 14 do is they start with Rack A going into Line A. And 15 then what happened is he met -- 16 THE COURT: Rack A goes into Line A and Rack B 17 goes in Line B. 18 MR. DUPREE: If they need to do that. 19 MR. NUNNELLEY: Judge, that's not the protocols. 20 THE COURT: Maybe get him to clarify then. 21 MR. NUNNELLEY: I'm not sure he can, Judge. 22 MR. DUPREE: I think that's one of problems, 23 Judge. That's what we are contending. 24 MR. NUNNELLEY: If he would read the procedures he 25 would be able to. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2517 1 MR. DUPREE: That's where the problems is. I'll 2 go through it again and I have no problems doing that, 3 Judge. I want to make it clear for the Court. 4 THE COURT: Okay. 5 BY MR. DUPREE: 6 Q Okay. Again, let's go through what the primary 7 executioner said -- 8 THE COURT: Let me ask you another thing too. 9 MR. DUPREE: Sure. 10 THE COURT: Is there different line for all three 11 drugs and do we have three drugs in one arm and three 12 lines in the other arm or I don't understand -- 13 MR. DUPREE: I'll clarify Judge. 14 THE COURT: -- how all that fits together. 15 MR. DUPREE: I have no problem with that. 16 MR. NUNNELLEY: Why don't we clarify that now 17 rather than jumping around. 18 THE COURT: Whatever you want to do. 19 MR. DUPREE: Hey, thanks for the suggestion. 20 MR. NUNNELLEY: Just trying to help, Mr. Dupree. 21 BY MR. DUPREE: 22 Q Let's answer the judge's question first, okay. 23 What is your understanding in Florida 24 protocols of how this process works? I want you to explain 25 it to the Judge. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2518 1 A The prisoner is lying there flat on his back on 2 the gurney, his arms are at his side, maybe angling out a 3 little bit on arm boards, got a IV going into each one,a 4 separate IV line with a separate IV bag to two of those 5 systems that we were looking at in court earlier on today 6 that were in the boxes; an IV bag, a drip chamber, a tubing, 7 one complete system for his left arm, one complete system 8 for his right arm. 9 Q When you say complete system, explain that 10 further? What do you mean complete system? 11 A What we were looking at before; the saline bag, 12 the drip chamber, the tubing, the injection area, the flow 13 regulator, the connection if there is one, the -- all the 14 things that we looked at there and the catheter. So from 15 bag to catheter and everything in between. There's two 16 completely sets of those. One that goes into his left arm 17 and one that goes into his right arm. 18 And those sets are generically or 19 colloquially being referred to as Line A and Line B. And 20 that's a decent way to refer to them. That's how we refer 21 to them in an OR. You have the left arm IV and the right 22 IV. It's the whole system we're talking about. 23 So, he has two completely full IV systems, 24 one in each arm, and then there are two racks and those 25 racks have drugs that are going to be injected and there's a OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2519 1 Rack A and Rack B. On those racks are the syringes with the 2 drugs or the saline flushes and they will -- 3 THE COURT: You lost me there. When you go from 4 Rack A to Rack B, two sets, you lost me. 5 THE WITNESS: I'm sorry. 6 THE COURT: Back up. 7 THE WITNESS: Okay. Rack A is a set of drugs. 8 It's got the full set of execution drugs. It's got the 9 thiopental, it's got the pancuronium, it's got the 10 potassium and it's got the flush syringes. It's a full 11 suite of execution drugs. 12 BY MR. DUPREE: 13 Q Let me try to clarify that. 14 THE COURT: It's syringes. 15 BY MR. DUPREE: 16 Q Right. Let's talk about how are each of those 17 drugs put in the racks? 18 A They're in syringes ready to go, as it were, with 19 the plungers all way back because the syringe is full of 20 drugs and it's sitting there on the rack. 21 MR. DUPREE: Let me clarify something else, Your 22 Honor. 23 BY MR. DUPREE: 24 Q Do you know which drugs go into which syringes? 25 A The syringes are numbered and so we know -- OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2520 1 Q What is in syringe number one of Rack A? 2 A Syringes one and two are both thiopental. Syringe 3 one is the first half the thiopental, syringe two is the 4 second half of the thiopental. 5 Q How about number three? 6 A That's the flush solution. 7 Q Number four? 8 A Is the first of the two pancuronium. 9 Q So, there's four and five are pancuronium. 10 A Four and for are pancuronium. 11 Q Six is what? 12 A Six is another flush solution. 13 Q And seven and eight is what? 14 A The potassium solution. 15 Q So that's just in one rack. That would be Rack A. 16 A Correct. 17 Q And that's supposed to go into Line A? 18 A Only into Line A, correct. 19 Q And that's from the Florida protocols; is that 20 correct? 21 A Correct. 22 Q Now, let's talk before Rack B. 23 A It's identical. 24 Q It's identical to Rack A. So one and two is 25 sodium thiopental? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2521 1 A Yeah. 2 Q Three is saline, four and five are pancuronium six 3 is saline, seven and eight are potassium chloride; is that 4 correct? 5 A Right. 6 Q And one Rack A goes into Line A; is that 7 correct? 8 A Yes. 9 Q The complete cycle of the drugs, correct? 10 A Yes. 11 Q And that's the intent and purposes of the 12 protocols? 13 A And the other one is just a back up, which I 14 believe although I have not had the opportunity to hear from 15 individual executioners, in the -- if it's like other 16 states, in the majority of executions the back up is never 17 used. The back up IV line, Line B, and the back up drugs, 18 Rack B, are never used. 19 MR. NUNNELLEY: Judge, if I could ask a question 20 of the witness on voir dire he's misspeaking again. 21 You identify for me in the protocol. Let me show you 22 the current protocol rather than the other protocol. 23 Can you tell me in here where it says that Rack A 24 goes only -- that the Rack A drugs only go in Line A or 25 Line One in and the Rack B can only be injected into OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2522 1 Line B? 2 MR. DUPREE: I don't think that's what he said, 3 Judge. 4 MR. NUNNELLEY: Judge, it's the impression that's 5 getting left and I'm trying to get this clarified. 6 MR. DUPREE: Are you clear on it, Your Honor? 7 THE COURT: Yes. 8 MR. DUPREE: Okay. Thank you. 9 MR. NUNNELLEY: Okay. Let me have this back. 10 BY MR. DUPREE: 11 Q Now, again, going back to the primary 12 executioner's testimony in front of the lethal injection 13 Commission, the procedure that we just talked about with 14 Judge Angel, is that the procedure that was followed in the 15 Angel Diaz execution? 16 A No, it's not. 17 THE COURT: Now what -- 18 MR. DUPREE: I'll go slow, Judge. 19 BY MR. DUPREE: 20 Q Is the procedure that we just discussed with Judge 21 Angel where you have one rack going into the -- you got Rack 22 A going into Line A, is that the procedure that was followed 23 in the Angel Diaz execution? 24 A No. 25 Q How did it deviate? Please explain that to the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2523 1 Judge. 2 A So, the first two syringes were injected. Syringe 3 one and two, which have the thiopental were in injected into 4 Line A. They then injected the flush solution into Line A 5 as syringe number three, the saline flush. They then start 6 injecting the syringe four, the pancuronium into Line A but 7 it one too difficult to complete, to empty the syringe into 8 Line A, it's too difficult. I think they would use the word 9 resistence if they were talking about it here. 10 They couldn't push it in and so then there 11 was a conversation or advice from the gentleman, who is a 12 person standing, I think, in the edge of the hallway, who 13 then advised him to switch over. And so he then injected -- 14 Q When you see switch over, what do you mean? 15 A He switched to Line B. Instead of continuing to 16 inject the full suite of drugs all the three drugs with 17 their flush solutions out of all the syringes all into Line 18 A, he switched over and began to inject into Line B. 19 Q What is Line B? Where does that go? 20 A That goes to the right arm. 21 Q The other arm? 22 A The other arm. 23 Q Okay. Then what happens from there? 24 A The back up arm. They go to the back-up system 25 basically if that helps. They take the drugs from Rack A, OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2524 1 they switched them over to the backup system. 2 MR. DUPREE: Are you clear on it, Your Honor? I 3 want to make sure, Judge. 4 THE COURT: I was until he made that last 5 statement. 6 MR. DUPREE: Okay. Then let's clarify. 7 THE COURT: The last statement was confusing. He 8 said they switched the drugs. Now I thought he was 9 talking about pancuronium bromide and when he said 10 drugs then he included in that whatever is that first 11 one. Thigh -- 12 MR. DUPREE: No, he actually -- 13 THE COURT: Well he said drugs. In my mind -- 14 MR. DUPREE: Let's clarify that. 15 THE COURT: The first drug? 16 MR. DUPREE: It's sodium thiopental. 17 THE COURT: Sodium thiopental? 18 MR. DUPREE: Right. 19 THE COURT: Got it. I don't think that's what he 20 meant to say. That's what he -- what did he mean to 21 say? 22 MR. DUPREE: Again, we'll go through it, Judge. 23 So if you don't mind me leading him through. It might 24 be easier. 25 THE COURT: Go ahead. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2525 1 BY MR. DUPREE: 2 Q In Line A they inject the sodium thiopental 3 syringe one, correct? 4 A Yes. 5 Q Sodium thiopental syringe two, correct? 6 A Yes. 7 Q Then though do the saline flush, correct? 8 A Yes. 9 Q Then they start to inject the pancuronium bromide 10 into the initial Line A arm, correct? 11 A Yes. 12 Q And he meets he resistance, correct? 13 A Yes. 14 Q Then he is advised by a gentleman, I'm quoting his 15 testimony, from the hallway to switch lines? 16 A Yes. 17 MR. DUPREE: Understand, Judge? Now. He's going 18 to from one arm to the other arm. 19 THE COURT: Now I think I understand what he means 20 when he said switched drugs. 21 MR. DUPREE: Right. 22 THE COURT: Started doing what he had been doing 23 into the other arm. 24 MR. DUPREE: Into the other arm. 25 THE COURT: He didn't -- OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2526 1 MR. DUPREE: There you go. 2 THE COURT: -- go back and start all over so. He 3 started picking up from where he was and switched over 4 to the other arm. 5 MR. DUPREE: Yes, sir. That's exactly what 6 happened. 7 BY MR. DUPREE: 8 Q So, it's your understanding, sir, from the lethal 9 injection Commission testimony and, Your Honor, I want to 10 make sure you're clear on this that the first drug that was 11 injected into the other arm, Line B, was the pancuronium 12 bromide? 13 A That's correct. 14 MR. DUPREE: Your Honor, do you have that? 15 THE COURT: The first drug? 16 MR. DUPREE: Yes, sir. 17 THE WITNESS: Into the second IV? 18 MR. DUPREE: Into the second IV. 19 THE COURT: The first drug into the second IV, 20 okay, yes. 21 MR. DUPREE: When I say the first drug -- 22 THE COURT: Into the second -- 23 MR. DUPREE: -- and I want to clarify when say the 24 first drug. The first thing he put in there was the 25 pancuronium bromide. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2527 1 THE COURT: Correct, I understand. 2 MR. DUPREE: Okay. Thank you, Judge. 3 BY MR. DUPREE: 4 Q After he took and again, that particular syringe, 5 number four of pancuronium bromide, came from Rack A, the 6 first rack; is that correct? 7 A What he started injecting that syringe, number 8 four, into Line A. 9 MR. NUNNELLEY: Your Honor, it was a "yes" or "no" 10 question if the witness will answer the question put to 11 him it will be a little clearer. 12 THE COURT: I understand go ahead. 13 THE WITNESS: It was in the, in Line A, he started 14 to in inject it, he then unscrewed it or detached it, 15 whatever, from line A, attached it to line B and 16 injected into Line B. It came from Rack A and then the 17 intervening time was attached to Line A and then he 18 detached it from Line A and attached it to Line B and 19 injection it. That was the first thing that went into 20 Line B. 21 BY MR. DUPREE: 22 Q So, the first drug that went into the other arm 23 was pancuronium bromide, correct? 24 A Yes. 25 Q And what is the next drug that he injected into OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2528 1 Line B? 2 A The next drug was a second syringe of pancuronium. 3 He took it off of Rack A that he injected into Line B where 4 the first syringe of pancuronium had gone into. He then 5 followed in with a second syringe of pancuronium. 6 Q Then what did he put in next? 7 A It says he now delivers syringe number seven. 8 Q Which is what? 9 A Flush syringe. 10 Q What is syringe seven? 11 A I'm sorry, syringe seven would be the first 12 potassium. He starts to deliver syringe seven, the first 13 potassium from Rack A into Line B. 14 Q And then what's the next thing he does? 15 A He then takes syringe number eight, which is the 16 second of the two potassium syringes, there's two syringes 17 of every drug. He takes the second of two potassium 18 syringes from Rack A and injects it into Line B. 19 Q Okay. And directing your attention again to page 20 72. At the time that he was injected, again, Judge, because 21 this can get confusing. 22 At the time that the primary executioner was 23 injecting the potassium chloride line seven and line eight 24 into Line B, what was the secondary executioner doing? 25 A So, -- I'm sorry, ask the question again. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2529 1 Q Sure. As the primary executioner was injecting 2 number seven, the potassium chloride, and then number eight, 3 the second syringe of potassium chloride what was the 4 secondary executioner doing? Was he injecting any drugs 5 into Mr. Diaz? 6 A It says the beginning the syringe eight the 7 secondary executioner began delivering chemicals into Line 8 A. 9 Q Do you know which chemicals the secondary 10 executioner was delivering into Line A? 11 MR. NUNNELLEY: Your Honor, I thought this man was 12 an expert witness. He doesn't know what he's talking 13 about here. 14 THE WITNESS: It's very confusing to follow 15 exactly what happened, to compare what the preliminary 16 report was and -- 17 MR. DUPREE: You don't need to answer him, answer 18 my question. 19 THE WITNESS: Okay. 20 BY MR. DUPREE: 21 Q Answer my question. 22 A It says the witness is saying so he starts with 23 number seven and then through the question he starts with 24 number seven and the witness says I don't think he started 25 with number seven. I think he starred with the flush, OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2530 1 number six. 2 Q And that would be from which rack? Do you know 3 which rack that's from now? 4 A He was administering syringe six from Rack B into 5 Line A. 6 Q Okay. So, while the primary executioner is doing 7 seven and eight into Line B, you have the other executioner, 8 the secondary executioner taking drugs off the other rack 9 and injecting them into Line A; is that correct? 10 A Crossing them over. 11 Q Right. Now, what problems would be associated 12 with using a line that you thought was compromised? 13 A You should never use a line that you think is 14 compromised. 15 Q Okay. Now they've already switched from Line A to 16 Line B; is that correct? 17 A Yes. 18 Q In your opinion is there any medically sound 19 reason or any reason whatsoever why they would go back to 20 Line A? 21 A No, that's totally the wrong thing to do. They 22 should be in the room figuring out what's going on. In the 23 execution chamber figuring out what's gone wrong, not just 24 injecting more drugs. 25 Q And again, I'm going to direct your attention to OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2531 1 the summary of the findings of the DOC task force. This is 2 the December 20th report, Your Honor. 3 Page seven and direct your attention to where 4 it says administration of the lethal chemicals. Could you 5 please read those two paragraphs. 6 A It says -- 7 MR. NUNNELLEY: No, no, is he reading it into the 8 record. 9 MR. DUPREE: I corrected it. Read it to yourself. 10 THE WITNESS: I'm sorry. 11 (The witness complied.) 12 BY MR. DUPREE: 13 Q Did the Department of Corrections make a finding 14 that the protocols, the 16/2006 protocols were followed or 15 were not followed by the sequence of drugs that were 16 administered to Mr. Diaz? 17 MR. NUNNELLEY: Objection. The report's in 18 evidence. It speaks for itself. It doesn't come in 19 through this witness. 20 MR. DUPREE: It goes to his opinion, Judge. 21 THE COURT: Overruled. Go ahead. 22 THE WITNESS: They state that the decision to 23 switch the drugs around and to -- 24 MR. NUNNELLEY: Your Honor, it's a yes or no 25 question. The witness is reading from the report or OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2532 1 entering into a narrative response. It did not call 2 for a narrative I object. 3 THE COURT: What's your question? 4 MR. DUPREE: Judge, I'll start over. That's fine. 5 BY MR. DUPREE: 6 Q Did they make a finding as to whether or not the 7 protocols were followed? 8 A I think you'd call this a finding, yes. 9 Q And did they find that the protocols had been 10 followed or did they find that the proper protocols had not 11 been followed? 12 A It describes an option that is not within the 13 confines of the lethal injection. They did something 14 outside -- 15 MR. NUNNELLEY: Your Honor, he's reading from the 16 report. It is a yes or no question that was put to 17 him. He's answering the question. 18 THE COURT: Overruled. Go ahead. 19 THE WITNESS: I don't know exactly what you mean 20 by a finding. I would call this a finding? Yes, it's 21 a finding that they did not follow the protocol. 22 BY MR. DUPREE: 23 Q Okay. Having reviewed the August 16th protocols, 24 have you been able to determine in your opinion whether or 25 not they followed Florida's protocols? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2533 1 A They did not. 2 Q Okay. Thank you. 3 In reviewing the primary executioner's 4 testimony before the lethal injection Commission, did you 5 make a determination based upon his testimony what his 6 qualifications were to do that job? 7 A No. 8 Q Do you know whether or not he has any medical 9 training? 10 A No. 11 Q Do you know whether or not he uses IVs in a 12 normal -- 13 THE COURT: Go back to your first question and say 14 that again. 15 MR. DUPREE: Does he have any medical training. 16 THE COURT: No, your first question. 17 MR. DUPREE: The qualifications of the primary 18 executioner. Does he know from the reading of the 19 lethal injection Commission testimony, does he know 20 what the qualifications were of the primary executioner 21 to do this job. 22 THE COURT: Okay. 23 BY MR. DUPREE: 24 Q Okay. Do you know what his qualifications were 25 from reading his testimony? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2534 1 A He's over 18. That's his qualification. 2 Q Okay. 3 MR. NUNNELLEY: Your Honor, -- 4 THE WITNESS: Or she is over 18. 5 BY MR. DUPREE: 6 Q Do you know whether or not they have any medical 7 training? 8 A I don't know. 9 Q Do you know whether or not they use an IV for 10 their job in and every-day setting? 11 A No. 12 MR. NUNNELLEY: Your Honor, there's been no 13 testimony that such is required of the executioner. 14 The executioner as the Court knows, does not start the 15 IVs. The executioner only pushes the drugs. 16 THE COURT: Go ahead. 17 BY MR. DUPREE: 18 Q Did you know whether or not that person uses IVs 19 every-day setting? 20 A No. 21 Q Does that cause you concern? 22 A Yes, very much so. 23 Q Why? 24 MR. NUNNELLEY: Objection. Irrelevant. 25 THE COURT: Overruled. Go ahead. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2535 1 THE WITNESS: Knowing whether an IV is 2 infiltrating when you're injecting into it, it's the 3 matter of having a feel of the back pressure when it 4 advances the plunger. And the only way one can get 5 that feel and know what it feels like to be injecting 6 into a bad IV, is to have done it. So, a person who's 7 just injecting drugs, doing the mechanical act of 8 pushing a plunger is, should never been injecting drugs 9 into a person or an animal for any purpose. 10 They don't have the feel for doing that and they 11 don't have the ability to properly recognize the 12 backtalk, as it were, the back pressure from that 13 plunger to know if the drugs are going in properly or 14 not. He could be alerted that there might be a 15 problem. 16 BY MR. DUPREE: 17 Q Okay. Going back, I have just had a couple other 18 questions with regard to anesthetic depth. In terms of a 19 judicial execution in anesthetic depth an important thing? 20 MR. NUNNELLEY: Been asked and answered. 21 THE COURT: Overruled. Go ahead. 22 THE WITNESS: An execution by lethal injection? 23 BY MR. DUPREE: 24 Q Yes, sir. 25 A If you're using potassium which is an extremely OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2536 1 painful drug, then anesthetic depth is extremely important. 2 Q Why is that? 3 A Because potassium is a surgical, concentrated 4 potassium in the doses that are used for killing animals or 5 people, is a surgical level of stimulant of pain. It's 6 extremely painful and any time one does something that's 7 going to be extremely painful to a person or an animal, 8 there is an obligation that they are properly anesthetized. 9 Q And in your opinion should anesthetic depth be 10 monitored by somebody with a background in anesthesiology? 11 A Certainly a background in anesthetic depth. There 12 are some ICU doctors and other healthcare practitioners who 13 have a background in doing that but it would need to be a 14 person who has the experience and proficiency and the 15 background to do it. And it would have to be at the 16 bedside. 17 Q What kind of medical training would that entail to 18 teach somebody to monitoring anesthetic depth? 19 A The main people who do it are anesthesiologist and 20 nurse anesthetists which are called CRNA, which is stands 21 for certified registered nurse anesthetist. 22 And then also I train anesthesiology 23 residents. And so as they acquire proficiency during their 24 training, they're giving more and more opportunity to be the 25 one to do the assessment of anesthetic depth. Initially OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2537 1 they're not allowed to do that and as time goes on in 2 transition that responsibility to them and by the end of 3 their training, they go out into the world fully fledged 4 anesthesiologist. 5 Q Based upon your review of the protocols, both 6 August 16th, 2006, and May 9th, 2007 are you aware of any of 7 the qualifications of the medical team or the execution team 8 as it relates to monitoring anesthetic depth? 9 A No. 10 Q Do you know of anybody-- 11 THE COURT: Medical team, who are you talking 12 about? 13 BY MR. DUPREE: 14 Q I'm going to break it up, Judge, okay? 15 BY MR. DUPREE: 16 Q In terms of the primary and secondary executioner, 17 are you aware of any of their qualifications? 18 A Just that they're over 18 is the only 19 qualification. 20 MR. NUNNELLEY: Your Honor, I'm going to object. 21 Executioners are not part of the medical team. 22 THE COURT: Overruled. Go ahead. 23 BY MR. DUPREE: 24 Q As far as is the medical team is concerned, have 25 you reviewed the protocols regarding the medical team? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2538 1 A The protocols doesn't say anything about their 2 qualifications. It does say that a physician is there to 3 pronounce death at the end but that's it. 4 Q And in terms of qualifications for the medical 5 team members, is there any qualifications in the protocols? 6 A Nothing. 7 THE COURT: Medical team members. 8 MR. DUPREE: Yes, sir. 9 THE COURT: Who are you talking about? 10 MR. DUPREE: There's two teams and you got -- let 11 me go back to it Judge. 12 BY MR. DUPREE: 13 Q Directing your attention to page two of the May 14 9th, 2007 protocols. 15 A I don't have a copy. I need to look. 16 Q I'll read along with you. And it talks about 17 selection of the execution team. Does break it up into two 18 separate groups? 19 A Yes, it does. 20 Q And what are the two groups? 21 A Group A is the paragraph A says security team 22 members. 23 Q And what's paragraph B. 24 A Technical team members. 25 Q Okay. In your review the protocols are there, is OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2539 1 there anything in the protocols that discusses whether or 2 not any of the technical team members are to have medical 3 training? 4 A No. 5 Q Is there anywhere in there that talks about 6 somebody being medically qualified to perform the inducement 7 of the anesthesia or the injection of the drugs? 8 A No. 9 Q Does that concern you? 10 A Yes, it does. 11 Q And could you please explain to Court why the lack 12 of qualifications would concern you? 13 A These drugs should only be used by people who know 14 what they are, who understand how to use them, who 15 understand the things that can go wrong when you use them 16 and can address and fix the problems that arise when they 17 occur. 18 And Mr. Diaz's execution is a perfect example 19 of that. I cannot believe that there would be so cruel as 20 to knowingly inject pancuronium into a person who is not 21 anesthetized. 22 MR. NUNNELLEY: Judge, I object to the narrative 23 by this witness. He has persisted in doing it. I'm 24 going to again ask the Court to instruct the witness to 25 answer the question and not pontificate for us. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2540 1 THE COURT: Overrule the objection. Go ahead. 2 THE WITNESS: There are two possibilities as to 3 why they injected pancuronium. 4 MR. NUNNELLEY: Your Honor, that's not even 5 responsive to the question. 6 THE COURT: Go ahead and finish the answer. Go 7 ahead. 8 THE WITNESS: If you don't understand how these 9 drugs work you make errors, egregious errors like the 10 ones that were made in Mr. Diaz's execution. 11 MR. NUNNELLEY: Your Honor, again, I'm going to 12 object to the categorization of egregious errors. 13 THE COURT: Overruled. Go ahead. 14 THE WITNESS: If one does not know the names of 15 drugs that one is injecting or how they work then one 16 will do something, not intending to be cruel, but will 17 just go and switch to another IV and inject pancuronium 18 into an awake person, which is and extraordinarily 19 cruel thing to do. And then inject potassium into a 20 person who's not been anesthetized, which would be an 21 extraordinarily cruel thing to do. 22 It could only arise out of cruelty or ignorance 23 and it comes from not being properly, being the right 24 people to be involved in the administration of these 25 drugs. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2541 1 BY MR. DUPREE: 2 Q To your knowledge, sir, does anybody on Florida's 3 execution team, whether they are a technical team member, a 4 warden, a medical person, a medically, a so-called medically 5 qualified person, do you know based upon the Florida 6 protocols whether any of those people has any training in 7 anesthesiology? 8 A There's no evidence of that at all. 9 Q And does the fact that the protocols don't speak 10 to training and qualifications raise any concern in your 11 mind? 12 A It does, yes. I believe the purpose of protocol 13 is to protect the prisoner to make sure that as much as 14 humanly possible it's a humane and dignified execution and 15 to protect the State of Florida from carrying out an 16 inhumane or undignified execution. 17 Q And do you believe, is it your opinion that the 18 way that the protocols are set up in Florida and with the 19 induction of these chemicals, that it would require 20 monitoring by somebody who's trained in anesthesiology? 21 A By someone who's trained in assessing anesthetic 22 depth. You need bedside monitoring. 23 Q And is it -- 24 A If you use these drugs. 25 Q And is it possible for the Department of OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2542 1 Corrections in your opinion to recruit such a person? 2 A I believe that would be possible, yes. 3 Q Are you aware of any states around country that 4 use physicians in judicial executions? 5 A The great majority of states around the country 6 are using physicians in their judicial executions. 7 Q Okay. And regard to your testimony in other 8 states, you've already indicated you've testified in a 9 number of states in the east coast to the west coast. When 10 you've testified in those proceedings, have you been allowed 11 or have you been given and provided depositions and sworn 12 statements from the executioners and the medical team 13 members of the execution teams of those other states? 14 A That's how I know. Depositions or testimony of 15 doctors, of executioners, of wardens, of guards, basically 16 there's testimony or deposition from all of those people and 17 that's how I know that doctors are participating. 18 THE COURT: And just wait a minute. 19 Just a minute. 20 MR. DUPREE: Yes, sir. 21 THE COURT: Medical team members. 22 MR. DUPREE: Yes, sir? 23 THE COURT: And we've got people who mix 24 chemicals. 25 MR. DUPREE: Yes, sir. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2543 1 THE COURT: And we've got people who insert IVs. 2 MR. DUPREE: Yes, sir. 3 THE COURT: We've got people who push chemicals 4 into IVs. Somebody else looking at monitors and 5 screens. Who are you talking about when you say 6 medical team members? 7 MR. DUPREE: I think that's the problem, Judge, 8 because that's what the protocols leave out. That's 9 what he's pointed out, that there is -- that's what I'm 10 trying to point out, Judge. 11 THE COURT: Okay. 12 MR. DUPREE: There is no nobody named as a medical 13 team member in this protocol. 14 THE COURT: Okay. 15 MR. DUPREE: That's the problem. 16 THE COURT: Okay. 17 MR. DUPREE: Okay. But the people that are 18 supposed to be the technical team, whatever term that 19 means, there's no way in the protocols that you can 20 determine? 21 MR. NUNNELLEY: Judge, I'm going to object to 22 Mr. Dupree making argument when he's got a witness on 23 the stand. He needs to save this for his closing 24 argument. 25 THE COURT: Okay. Go ahead. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2544 1 BY MR. DUPREE: 2 Q Okay. Do you have the protocols in front of you, 3 Doctor Heath? 4 A Yes. 5 MR. DUPREE: Judge, this might be a good time to 6 break for lunch. The reason I say that is because I'm 7 going to a completely different area. 8 THE COURT: Sounds fine to me. 9 MR. DUPREE: Okay. 10 MR. NUNNELLEY: Judge, the only thing I have or 11 would say is I'm going to finish cross on this witness 12 today. I hope he's planning on staying. 13 MR. DUPREE: I'm up here until Monday, Judge. 14 THE COURT: We'll see where we go. 15 MR. NUNNELLEY: No, Your Honor, we need to finish 16 this today. He's going to drag this out until 5:00. 17 What time's his flight, Judge. Let's get that on the 18 record at least so we know what we're dealing with when 19 we see it's a deliberate attempt to postpone and 20 prolong the proceedings. 21 THE COURT: I don't think it's a deliberate 22 attempt to do anything. 23 We'll be back after lunch. 24 MR. NUNNELLEY: What time's his flight, Judge? 25 Can we get that on the record? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2545 1 THE COURT: Sure, what time is your flight. 2 THE WITNESS: I can fly out any time before Sunday 3 evening. 4 THE COURT: Okay. It's 12:10. When do you want 5 to come back. 6 MR. DUPREE: That's one of problems, Judge. Do we 7 know of anything's that's open around here? 8 MR. NUNNELLEY: Let's make it 1:30, Judge. We can 9 find something and get back. 10 THE COURT: Okay. 11 MR. NUNNELLEY: 1:30? 12 THE COURT: Sure. You got somebody that can help 13 you get around downtown, right? 14 MR. DUPREE: We hope so, Judge. 15 THE COURT: All right. We'll see you at 1:30 16 then. 17 MR. NUNNELLEY: Before we go off the record, I 18 would like Doctor Heath to be instructed that he is not 19 to discuss his testimony with anybody, Mr. Dupree or 20 anybody else. 21 THE COURT: Well, he can discuss his testimony 22 with the lawyers. 23 MR. NUNNELLEY: No, Your Honor, not while he's on 24 the stand. He can't, once he gets on the stand he 25 can't discuss his testimony with the attorney who OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2546 1 called him. If he had a lawyer here representing him, 2 then they could discuss it, but Mr. Dupree and Doctor 3 Heath can't get their heads together over lunch and 4 discuss his testimony. That's just the way it is. 5 THE COURT: They should not be discussing the 6 testimony of any other witness. 7 MR. NUNNELLEY: Shouldn't be discussing his 8 testimony either, Judge. 9 MR. DUPREE: I don't know where that comes from. 10 THE COURT: Any problem with that. 11 MR. DUPREE: Why I can't discuss with my own 12 witness. What's the problem with that? 13 MR. NUNNELLEY: He's on the stand, Your Honor. My 14 understanding of the rule has always been that once a 15 witness goes on the stand, he's insulated from talking 16 to anybody about the substance of his testimony. In 17 fact, we go so far on the State side as to not even 18 going to lunch with a witness whose on the stand to 19 avoid any accusations that we've done something 20 improper. Now they want to take this man to lunch to 21 discuss his testimony with him. I don't think so, Your 22 Honor. That's absolutely inappropriate. 23 MR. DUPREE: If they can show me the rule that 24 says that, Judge, I'll be happy to comply. 25 MR. NUNNELLEY: He's supposed to be prepared for OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2547 1 his testimony before he got here, Judge. There can be 2 no prejudice to them by not discussing his testimony 3 with him over the lunch break. 4 THE COURT: Well, counsel will not be telling him 5 about the testimony of any other witness. 6 MR. DUPREE: No, sir. 7 THE COURT: Don't tell him about the testimony of 8 any other witness. 9 MS. KEFFER: Your Honor, with all due respect, 10 that's not issue either because as our expert he was 11 exempt from the rule. 12 THE COURT: Just -- 13 MS. KEFFER: I'm not saying that we're going to do 14 that. I'm just saying that he was exempt from the rule 15 as an expert. So, in terms of other witnesses, that's 16 not the issue. 17 MR. NUNNELLEY: He was exempt as an expert from 18 the rule of sequestration, Your Honor. 19 THE COURT: And he could have sat through the 20 whole trial and listened to the testimony of every 21 witness. 22 MR. NUNNELLEY: Could have listened to everything 23 everybody said but he doesn't need to be talking about 24 this testimony that's coming in today over the lunch 25 hour. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2548 1 THE COURT: Well, I'll overrule the objection. 2 Go to lunch, see you at 1:30. 3 (Court recessed at 12:10 p.m. to be reconvened at 4 1:30 p.m. of the same day.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2549 1 C E R T I F I C A T E 2 STATE OF FLORIDA 3 COUNTY OF MARION 4 5 I, CONSTANCE MILLER, Stenographic Court 6 Reporter and Notary Public, State of Florida at Large, 7 do hereby certify that I was authorized to and did 8 stenographically report the foregoing proceedings taken 9 in the case of STATE OF FLORIDA vs. IAN DECO LIGHTBOURNE, 10 Case Number 81-170-CF, and that the foregoing pages, 11 numbered 2376 through 2548, Volume XVI, inclusive, 12 constitute a true and correct record of the proceedings to 13 the best of my ability. 14 I FURTHER CERTIFY that I am not a relative or 15 employee or attorney or counsel of any of the parties 16 hereto, nor a relative or employee of such attorney or 17 counsel, nor am I financially interested in the action. 18 WITNESS MY HAND this 25th day of July, 2007 at 19 Ocala, Marion County, Florida. 20 21 ______________________________ CONSTANCE MILLER 22 Stenographic Court Reporter State of Florida at Large 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2550 1 IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT 2 OF FLORIDA, IN AND FOR MARION COUNTY 3 4 STATE OF FLORIDA 5 Plaintiff, 6 vs. CASE NO. 81-170-CF (VOLUME XVII ONLY) 7 IAN DECO LIGHTBOURNE, 8 Defendant. 9 ------------------------------------------------------------ PROCEEDINGS: Continued Evidentiary Hearing 10 Concerning Lethal Injection (Diaz issue) 11 BEFORE: Honorable Carven D. Angel 12 Circuit Judge Fifth Judicial Circuit, In and 13 For Marion County, Florida 14 REPORTED BY: CONSTANCE MILLER, RPR Stenographic Court Reporter 15 Notary Public State of Florida at Large 16 DATE AND TIME: July 21, 2007; 1:30 p.m. 17 PLACE: Courtroom 3A 18 Marion County Judicial Center Ocala, Florida 19 20 21 22 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2551 1 APPEARANCES: 2 KENNETH S. NUNNELLEY, A.A.G. 3 BARBARA C. DAVIS, A.A.G. CAROLYN SNURKOWSKI, A.A.G. 4 Office of the Attorney General 444 Seabreeze Blvd.,5th Floor 5 Daytona Beach, Florida 32118 Attorneys for the State 6 7 ROCK HOOKER, ESQUIRE Assistant State Attorney 8 19 N.W. Pine Avenue Ocala, Florida 34475 9 Attorney for the State of Florida 10 11 SUZANNE KEFFER, ESQUIRE ROSEANNE ECKERT, ESQUIRE 12 ANNA-LIISA NIXON, ESQUIRE NEAL DUPREE, ESQUIRE 13 CAROLINE KRAVATH, ESQUIRE Capital Collateral Regional Counsel 14 101 Northeast Third Avenue Suite 400 15 Fort Lauderdale, Florida 33301 Attorneys for Defendant 16 17 MAXIMILLIAN J. CHANGUS, ESQUIRE Office of General Counsel 18 Florida Department of Corrections 2601 Blair Stone Road 19 Tallahassee, FL 34399-2500 Attorney for Department of Corrections 20 21 22 ALSO PRESENT: Gayle Watson, Judicial Assistant 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2552 1 I N D E X (VOLUME XVII ONLY) 2 3 DEFENSE WITNESS 4 DOCTOR MARK HEATH (Cont'd) 5 Cont'd Direct Examination by Mr. Dupree. . . . . . . . .2553 Cross-Examination by Mr. Nunnelley. . . . . . . . . . . 2641 6 Redirect Examination by Mr. Dupree. . . . . . . . . . . 2764 Recross-Examination by Mr. Nunnelley. . . . . . . . . . 2768 7 8 Certificate. . . . . . . . . . . . . . . . . . . . . . .2775 9 10 E X H I B I T S 11 Defendant's Exhibit Number 17. . . . . . . . . . . . . .2591 12 Defendant's Exhibit Number 18. . . . . . . . . . . . . .2596 13 Defendant's Exhibit Number 20A-H. . . . . . . . . . . . 2385 14 15 16 17 18 19 20 21 22 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2553 1 AFTERNOON SESSION 2 July 21, 2007 1:30 p.m. 3 THE COURT: Thank you. Resuming our hearing. 4 MR. DUPREE: Your Honor, the rest of my team is 5 outside. Got to make sure they come inside. 6 THE COURT: Sure. 7 MR. DUPREE: Your Honor, before we start I just 8 wanted to clarify one thing for the record. The State 9 had been objecting about us having contact with Doctor 10 Heath over lunch. I want to make the record clear that 11 we did not take Doctor Heath to lunch. One of my team 12 members took him to lunch with the specific 13 instructions not to discuss his testimony in this case. 14 The other four of us; Ms. Keffer, Ms. Eckert, Ms. Nixon 15 and I went to a separate restaurant. 16 MR. NUNNELLEY: Very Good. 17 THE COURT: Thank you. 18 CONTINUED DIRECT EXAMINATION 19 BY MR. DUPREE: 20 Q Okay. Doctor Heath, just to go back a little bit. 21 Before we were discussing Mr. Diaz's case and you indicated 22 that the sodium thiopental was delivered into the tissue, 23 correct? 24 A Yes. 25 Q And that the pancuronium bromide was delivered in OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2554 1 the soft tissue of the other arm than the sodium thiopental 2 and syringes one and two; is that correct? 3 A Yes. 4 Q Okay. 5 THE COURT: Counsel, can I get you to help me with 6 something here. 7 MR. DUPREE: I hope so, Judge. 8 THE COURT: To make it easier on me, could we talk 9 about and understand that sodium, just use the word 10 sodium. I'll be able to follow it a little better. 11 And pancuronium and potassium. 12 MR. DUPREE: So you just want to use those three 13 words. 14 THE COURT: If you would; sodium, pancuronium and 15 potassium. That will help me keep up with you a little 16 better. 17 MR. DUPREE: Hope it doesn't confuse me. 18 THE COURT: Okay. Well, whatever you want to do. 19 MR. DUPREE: I'll follow it. 20 THE COURT: If you simply it a little bit that 21 might help. 22 MR. DUPREE: I'll rephrase the question then, 23 Judge. 24 THE COURT: Okay, good. 25 BY MR. DUPREE: OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2555 1 Q So, we were discussing the sequence of the drugs 2 in Mr. Diaz's execution and you indicated that the sodium 3 was put into line one, syringes one and two, correct? And 4 that the pancuronium was put into Line B, which would go 5 into the other arm; is that correct? 6 A That's right. 7 Q All right. Based upon the sequence that you know 8 occurred in this case, do you have an opinion as to whether 9 or not Mr. Diaz suffocated from the pancuronium bromide? 10 A I think it's likely that he did but I cannot -- as 11 I said before, there is no certainty about what happened 12 with Mr. Diaz. 13 Q When you say you think that he did, what is that 14 based upon? 15 A Based upon the witness descriptions of what, of 16 how he behaved after these three drugs or these series of 17 drugs were injected into the tissues of his arms. And also 18 based on knowledge about how these drugs are likely to 19 behave when injected into tissue as opposed to being 20 injected into a vein. 21 Q Let's talk about the first one about what the 22 witness's saw. Could you please explain to the Judge what 23 makes you think the pancuronium caused him to suffocate? 24 A A person it's important to understand first of 25 all, the way these drugs would have their onset when they're OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2556 1 coming out of the tissue in the arm would be slower than if 2 their onset if they're going into the vein. When they go in 3 the vein, the effect is very rapid. When they're sitting in 4 the arm, it takes a lot longer to diffuse into their 5 circulation and get carried around. So, the question then 6 is, is of the three drugs that went in they're all 7 presumably slowly diffusing into his body at whatever rate 8 they're diffusing, which one of the those three drugs is 9 going to start exerting their effects first and which one 10 will first be the one to get there and cause him to die. A 11 person who's getting increasing amounts of thiopental in 12 their blood, sodium. 13 THE COURT: I knew there was a reason I was having 14 trouble following you guys along. Thiopental is the 15 same thing as sodium pentothal; is that right? 16 MR. DUPREE: Yes, sir. 17 THE COURT: All right. Why are you using 18 thiopental. Is that just a brand name or another name? 19 MR. DUPREE: Judge, it was just to confuse you, I 20 think. 21 THE COURT: Is the same thins as sodium pentothal. 22 MR. DUPREE: Yes, Your Honor. 23 THE COURT: Okay. thank you. 24 MR. HOOKER: And pavulon, Judge, is the same thing 25 as pancuronium bromide. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2557 1 THE COURT: Okay. Thank you. 2 I remember somebody, one of the witnesses before 3 mentioned all the these different words that mean 4 similar things. Okay. 5 BY MR. DUPREE: 6 Q Go ahead with your opinion. 7 A So, these drugs are slowly entering his body from 8 his arm. A person who is slowly being administered 9 pentothal, the anesthesia drug, the first drug, that person 10 would gradually more and more sleepy and they would 11 gradually lose their desire to breathe and their brain would 12 stop sending signals making them try to breathe. That's the 13 nature of the drug. It makes the brain fall asleep and it 14 makes the part of the brain that controls breathing 15 eventually go to sleep as it were and the person stops 16 breathing. And that's why pentothal would be a fatal drug. 17 It wold stop the person from breathing and as we all know, 18 after a number of minutes of not breathing a person becomes 19 dead. 20 Pancuronium is very different. It does not 21 take aware the desire to breathe. It's like having your 22 nose and mouth taped shut. You're awake, you're 23 experiencing the increasing air hunger, that extreme desire 24 to breathe, the agony of suffocation. As pancuronium is 25 slowly paralyzing your muscles it becomes harder and harder OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2558 1 to breath. At first you can breathe okay and then you 2 realize that your chest is feeling heavy, you try to lift 3 your head up and your head will feel heavy. Your arms will 4 feel heavy and as it gradually produces its paralysis, it 5 will become more and more difficult to move any muscles and 6 one will be struggling harder and harder to try to draw 7 breath. 8 So, the witness descriptions, and there are a 9 number of descriptions so I'm having to give you a general 10 synthesis of my impression of them, is not of a person who's 11 just becoming progressively more and more sleepy and with no 12 respiratory drive, no attempts to drive. Instead, it's more 13 appearances of trying to breathe. One of the witnesses 14 described look like a fish out of water and that's a classic 15 sign or expression we use to teach our residents about a 16 patient who's partially paralyzed at the end of surgery. 17 That they're gulping for air like a fish is gulping to try 18 to move water through its gills. And that's not a sign of a 19 person who has pentothal, which would just make you sleepy 20 and not want air it's a sign of a person who's not getting 21 enough air. 22 Then at some point Mr. Diaz became virtually 23 still I think his Adams apple was bobbing and things like 24 that and then he became still. And at that point we don't 25 know or I don't know if enough pentothal had gotten into his OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2559 1 circulation to make him unconscious and I don't believe 2 anybody can answer that question with certainty. And then 3 at the same time I believe the potassium would be entering 4 his system in a similar way and eventually potassium would 5 stop the heart as we talked about. 6 Which of those drugs did its thing first? 7 Did the pentothal stop him from breathing first or the 8 pancuronium first. My bias, my best guess is it's the 9 pancuronium but I can't be certain. But he was eventually 10 dead, was it dying because of suffocation or was it dying 11 because of the potassium getting to his. I don't know 12 because I haven't seen the EKG records and even with them it 13 might not be possible for anybody to tell. So, that's my 14 best answer. 15 Q That leads me to another question. Have you been 16 provided with any EKG records from the State of Florida in 17 the execution of Angel Diaz? 18 A Not from Florida, no. 19 Q Do you know whether or not Florida actually keeps 20 a read of the EKG during the time of execution? 21 A It's my understanding that they, the machine they 22 don't have a paper strip kind like what the court reporter's 23 using, there's nothing there to keep a record of it and so 24 once they turn the machine off, it's gone. 25 Q Did you also have an occasion in preparing for OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2560 1 your testimony here today to review the testimony of the 2 February 19, 2007 testimony for the lethal injection 3 Commission from a person that was described there as 4 medically qualified member? 5 MR. NUNNELLEY: Judge, this is a transcript dated 6 February 19th from the Governors Commission on the 7 Administration of Lethal Injection. I've been handed 8 pages 90 through 110. 9 MR. DUPREE: I hate to bug the Court with this. 10 Apparently, I cut myself so now I'm bleeding all over 11 the place. Can I get a Band-Aid or -- I've already, I 12 think, ruined this shirt. 13 MR. NUNNELLEY: We've got two doctors in the 14 courtroom, Mr. Dupree. 15 THE COURT: We'll get the first aid box and come 16 up with something. 17 MR. DUPREE: I hope so, Judge. 18 (Off the record.) 19 MR. DUPREE: Thank you, Judge. Appreciate that. 20 I'm sorry for the interruption. 21 THE COURT: Sure, no problem. 22 BY MR. DUPREE: 23 Q Okay. Have you had a chance to review that, 24 doctor? 25 A Yes. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2561 1 Q And did you review that in preparation for your 2 testimony here today? 3 A Yes. 4 Q And the medical team member that was interviewed, 5 do you have any idea of what his qualifications were? 6 A He said he's a -- just to clarify, I don't even 7 know their gender because they were using, I understand they 8 were using a voice synthesizer or voice disguising. 9 Q I want to direct your attention to page 92. 10 Did the person who claimed to be medically 11 qualified but he would not give an explanation of how? 12 A That's right. 13 Q And would it be a true statement that the medical 14 team member, I'm going to direct your attention to page 94 15 (sic). Once again, the IV was started, that person left 16 Mr. Diaz's side and went into a different room. 17 A Where on page 94 are you referring to, I'm sorry? 18 Q No, 92. 19 A I'm sorry, that explains it. 20 Q Right here? 21 A It says in the middle of page 94 he was in the 22 chemical room before the chemicals were started, ten minutes 23 or more before. 24 Q And directing again your attention to page 94, 25 we've already heard testimony from the first medical person, OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2562 1 the person who actually started the IV, that there was, that 2 he had resistance. Did this medical member also confirm 3 that there was "more resistance than normal"? 4 A There's an answer here where he's saying, "At no 5 time was there any evidence to suggest infiltration nor a 6 compromise of the IV line nor did it create a compromised 7 IV." 8 Q Okay. Did the person also say -- I'm directing 9 your attention to page 98. If I could, Judge, let me just 10 approach the witness with regard to -- 11 MR. DUPREE: Do we have the picture, the autopsy 12 photos? The ones that I was using this morning. 13 BY MR. DUPREE: 14 Q Directing your attention to specifically State's 15 11-GG, you mentioned this morning about the blistering on 16 the arm and what caused that. What is your opinion of what 17 caused that? 18 A It's caused by one or more of the medications that 19 extravasated into the tissue, the soft tissue of the arm and 20 spread up and down from the IV site. 21 Q Is that what caused -- is there another term for 22 that it's called bullae? 23 A Bullae or singular is bulla and plural is bullae. 24 Q Directing your attention to page 100, did the 25 medical team member indicate that there's nothing medical OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2563 1 about a Lethal injection? 2 A Yes. 3 Q Do you agree or disagree with that? 4 A Well, I disagree with that. 5 Q Why? 6 A I believe that the actual execution is achieved by 7 potassium, that's what kills the prisoners. The step before 8 that where the prisoner is given pentothal, the anesthetic 9 drug, that is the administration of anesthesia, the 10 induction of general anesthesia, which is necessary to 11 ensure that they don't have a horrendous death from the 12 potassium. They're giving, anesthetizing the prisoner so 13 the execution is humane. The administration of a general 14 anesthetic is always a medical procedure in any context. It 15 can't be anything else. 16 Q Would you have any concerns about having a person 17 who believed this was not a medical professor on an 18 execution team? 19 MR. NUNNELLEY: Objection. Speculative. 20 THE COURT: Overruled. You may answer. 21 THE WITNESS: Yes. It's very important for all 22 the, I think they're called technical team members, but 23 they're performing this medical act of inducing and 24 trying perform the act of inducing and maintain general 25 anesthesia, that they would have to understand what OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2564 1 this is and how it's done and what the pitfalls are 2 and how to detect and correct the pitfalls. 3 BY MR. DUPREE: 4 Q Now, you testified that you had actually made an 5 appearance before the Florida lethal injection Commission, 6 the Governor's lethal injection Commission earlier this 7 year? 8 A Yes. 9 Q Were you paid for that? 10 A My expenses are supposedly going to be paid when I 11 have the time to submit the receipts for my plane fare and 12 hotel and those things, but I was not being paid for my time 13 and I will not, my understanding be paid for my time. 14 Q And you didn't charge the State for that? 15 A No. 16 Q The only thing you charged the State for is 17 expenses? 18 A I haven't gotten around to doing that yet. 19 Q That's what you would expect for, is your 20 expenses? 21 A Yes, I was told I would be reimbursed for my 22 expenses. 23 Q Have you had an opportunity to review the 24 Governor's Commission on the Administration on lethal 25 injection final report with findings on recommendations? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2565 1 A Yes, I have. 2 Q Let me do it this way? 3 MR. DUPREE: Judge, may I approach the witness, 4 please? 5 THE COURT: Go ahead. 6 BY MR. DUPREE: 7 Q I wanted to show you what's been put in evidence 8 as Joint Exhibit 4 and ask you if you recognize that? 9 A Yes, this is the final report. 10 Q Please turn to page eight of that. Under findings 11 and recommendations, have you reviewed that? 12 A Yes. 13 Q All right. The finding number one was the 14 execution team failed to ensure that a successful IV access 15 was maintained throughout the execution of Angel Diaz. 16 In your opinion do you agree or disagree with 17 that finding? 18 A That finding is correct. 19 Q What is that based upon? 20 A Based on multiple converging lines of evidence 21 that's based on Doctor Hamilton's testimony in front of the 22 Commission that I personally heard. It's based on his 23 written autopsy report, both of those said that the IVs, the 24 catheters were through and through, they were not in the 25 vein. It's based upon the photographs that I've seen from OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2566 1 the autopsy that would corroborate Doctor Hamilton's verbal 2 opinion about it. It's based on the, apparently uncontested 3 fact from the witnesses that it took many, many minutes 4 after the times that these huge doses of drugs were given 5 before Mr. Diaz became still. And it is not possible for a 6 human being to receive a full dose of any one of these three 7 drugs and still be moving many minutes later. 8 Since both drugs were attempting to be 9 administered into both arms. I conclude that both IVs were, 10 either the drugs weren't being injected like they said they 11 were, which I think is unlikely or they were getting into 12 the arms, which I think is what happened. 13 Q Not getting into the vein? 14 A Into the vein of the arm, yes. 15 And then that is corroborated by these large 16 areas, these large lesions, some people refer to them as 17 chemical burns, the bullae all the lesions on Mr. Diaz's 18 arms, which extended in both directions from the IVs and 19 it's virtually certain that those are caused by the 20 infiltration of the drugs into the tissues. There's 21 multiple lines of consistent converging evidence and the 22 only remotely plausible explanation is that all or nearly 23 all of these substances, these syringes were injected into 24 his arms, into the tissue of his arms, not into his veins. 25 Q Number two in the finding says that the failure of OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2567 1 the execution team to follow the existing protocols in the 2 delivery of the chemicals. Do you agree or disagree with 3 that finding? 4 A That's clear cut. As we discussed earlier, they 5 switched drugs from different racks and into different IVs. 6 With the consequence that they found wound up injecting 7 pancuronium into a prisoner who had not been given -- 8 MR. NUNNELLEY: Objection, Your Honor, he's 9 answered the question. Now we're into a narrative. 10 THE COURT: Overruled. Go ahead. 11 THE WITNESS: They failed in this very critical 12 way in other things. They injected pancuronium or they 13 attempted to inject pancuronium into a person who had 14 not been given a systemic dose, a circulating dose of 15 thiopental into a person who's not anesthetized by 16 pentothal or by any drug, a person who is awake. 17 BY MR. DUPREE: 18 Q Finally number three was the protocols as written 19 are insufficient to properly carry out an execution when 20 complications arise. And now Mr. Diaz's execution would 21 have been in December of 2006 and we were working off of the 22 August 006 protocols. Do you agree or disagree with that 23 assessment? 24 A I agree with that assessment. 25 Q What's your opinion based on? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2568 1 A The protocols are deficient in multiple regards. 2 They do not set forth what should be done in the face of a 3 variety of complications that are known to happen during the 4 injection of drugs and happened during lethal injection 5 proceedings in the United States. Including, they do not 6 set forth what exactly should be done if they find pentothal 7 or these other drugs extravasating into both arms of a 8 prisoner just like happened to Mr. Diaz. As you can see 9 what's happening to his arms, that's a situation that 10 requires urgent medical attention and would cause -- 11 MR. NUNNELLEY: Your Honor, this is going into a 12 narrative. There's no showing and no testimony that 13 the effect on Mr. Diaz's arms is an urgent medical 14 condition. This is outside the scope of the question. 15 He's answered the question and now he's giving a 16 speech. 17 THE COURT: Overruled. Go ahead. 18 THE WITNESS: Fair enough. 19 There are many ways. 20 MR. NUNNELLEY: Doctor Heath, I didn't put a 21 question to you. 22 MR. DUPREE: You have no question pending. He's 23 not asking you a question. Answer my question. 24 THE WITNESS: There are many areas in which the 25 protocol is deficient. Number one, in this kind of OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2569 1 endeavor inducing anesthesia in hospital or giving 2 anesthesia for lethal injection, things go wrong. And 3 you have to have a plan for dealing with those things. 4 We have an expression in medicine that failing to plan 5 is planning to fail. And there was a failure to plan 6 here and there is therefore, in my view a planning to 7 fail. So that's the number one problem. 8 The number two problem, they're using remote 9 administration. The induction and maintenance of 10 general anesthesia is a bedside activity. I do not 11 understand why they are going to it from a different 12 room. There are other states that do not do it from a 13 dinner room. They can wear protective garb that would 14 preserve their identity. I do not see why they should 15 be in a different room. The DOC itself emphasized 16 transparency as their number two goal. 17 MR. NUNNELLEY: Your Honor, this is a political 18 statement this man is making. It's outside the scope 19 of his expertise, it's not responsive to the question, 20 it is inappropriate and I object to it. 21 THE COURT: Repeat your question again. 22 MR. DUPREE: Judge, my original question was 23 number three, the protocols are as written are 24 insufficient to properly carry out an execution when 25 complications arise. And he's explaining why he agrees OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2570 1 with it the finding of the lethal injection Commission. 2 THE COURT: Overruled. Go ahead. 3 THE WITNESS: To carry outer an execution when 4 complications arise, there needs to be qualified 5 personnel at the bedside to detect and correct. That's 6 just bedrock medical practice and it's bedrock for any 7 complex human endeavor. The people are there, 8 immediately available to detect and correct problems. 9 BY MR. DUPREE: 10 Q It's not just bedside but it's also for judicial 11 executions also? 12 A Yes, for judicial executions but also for other 13 complex human endeavors being there to detect and correct is 14 what counts. And but I mean, being there, I mean being at 15 the bedside. And when one always have has to bear in minded 16 the context of an activity and sometimes there's a good 17 reason why one can't be at the bedside. For example, during 18 an MRI there is no bedside, they're in a narrow tube. 19 But here I do not see a reason why those 20 people can't be at the bedside and placing them there would 21 markedly address many of the concerns that are inherent in 22 the existing protocols. 23 Q Number four says, the failure of the training of 24 the execution team members. Do you agree or disagree? 25 THE COURT: Says what? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2571 1 MR. DUPREE: I'm sorry, Judge. The failure of the 2 training of the execution team members. 3 Does Your Honor have a copy of this? 4 THE COURT: Yes. 5 MR. DUPREE: Okay. 6 THE WITNESS: I agree with that at the same time. 7 BY MR. DUPREE: 8 Q And what is your opinion based upon it. It's page 9 eight, Your Honor of the -- 10 THE COURT: Commission? 11 MR. DUPREE: Commission. I want to make sure you 12 have the right thing. No, that's not it. That's 13 response, Judge. 14 THE COURT: Oh, that's the response, okay. 15 MR. DUPREE: Yes, sir. That's it. It's page 16 eight. 17 THE COURT: Okay. 18 BY MR. DUPREE: 19 Q I'm sorry. We're going back to number four, 20 failure of the training. 21 A I'm sorry could you ask the question again? 22 Q Sure. The Commission made a finding that there 23 was a failure in the training of the execution team members. 24 You see that? 25 A I see. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2572 1 Q Do you agree with that assessment? 2 A I agree with it. 3 Q And what is your opinion based upon, sir? 4 A Two general lines of evidence. The first is that 5 the procedure was carried out in an incompetent way. So the 6 actions and inactions speak for themselves that they could 7 not have been properly trained. 8 I'm assuming it was their goal to do it 9 properly, that they weren't willfully doing it improperly. 10 Assuming that they wanted to do it properly, they failed to 11 do so and that would be because they were improperly 12 trained, improperly qualified to do it. So, the failure of 13 the execution to comport with the goals of the Department of 14 Corrections is the first evidence for that. 15 And then the other evidence is that things 16 that personnel have said during the subsequent hearings is 17 further evidence for that. It's very clear they do not 18 understand these sophisticated drugs and the problems that 19 can arris and the importance of doing certain things when 20 certain things happen. They are apparently oblivious or 21 misunderstand how these drugs are to be used and what the 22 consequences of problems and misuse would be. 23 Q Number five says there was a failure in the 24 training to provide adequate guidelines when complications 25 occurred. I think you touched upon that but do you agree OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2573 1 with that opinion? 2 A I agree with that opinion. 3 Q What is your opinion based upon, sir? 4 A There were -- I believe there were no instructions 5 in the protocol telling them what you should do if you 6 encounter an increased resistance when you're injecting the 7 thiopental, which is a problem that they encountered or a 8 situation they encountered. They had to then confer amongst 9 themselves and the decision that they came up with that the 10 executioner was given was the worst possible thing that they 11 could have come up with to do. Again, I don't believe it 12 was deliberate. I believe that they didn't understand what 13 the principals underlying the procedure are and how these 14 drugs work. 15 Q Number six, there was a failure of leadership as 16 to how to proceed when a complications arose in the 17 execution process. Do you agree or disagree with that 18 finding? 19 A I agree with that. 20 Q And what is your opinion based upon? 21 A A situation like this where things can go -- 22 MR. NUNNELLEY: Your Honor, I object to this. 23 There's been no -- I don't know what this man is 24 qualified to say about any of these things, most 25 particularly this most recent one, number six. I don't OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2574 1 know what he knows but we certainly haven't heard it in 2 any of his qualifications about the leadership and 3 command structure of the Florida Department of 4 Corrections. He's not qualified to talk about this, 5 Judge. 6 THE COURT: Overruled. Go ahead. 7 THE WITNESS: Okay. 8 Leadership has to be conveyed all the way through 9 the hierarchy, so you're right, I do not know about the 10 senior people in Department of Corrections but what I 11 do know is that a person or group of people that were 12 leading the executioner, they advised him to do 13 something wrong and then he did that wrong thing and 14 went on to do a series of other wrong things. He 15 departed from the protocol in the worst possible way 16 and you their guidance. 17 Now, who was leading, them I'm not exactly sure. 18 There was a failure to convey and to area carry out the 19 goals that are articulated by the Department of 20 Corrections in their common sense good goals on how to 21 do an execution. 22 BY MR. DUPREE: 23 Q And number seven says there was inadequate 24 communication between the execution team members and the 25 warden who was not informed of the problem and the changes OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2575 1 implemented. 2 Do you agree or disagree with that finding? 3 A I agree with that to the extent that -- well, 4 really the warden doesn't have medical qualifications and 5 the problems that were occurring were medical problems and 6 required medical remedies, and so communicating with him to 7 get instructions from him wouldn't make much sense in the 8 first place. It is true that he was not apprized of the 9 ongoing events and therefore did not have the opportunity to 10 exert his leadership to the extent that he is in charge of 11 it. 12 Q Sir, moving on, to the -- 13 MR. DUPREE: I just want to make sure I got the 14 right exhibit, Your Honor. 15 MR. NUNNELLEY: Judge, under the rule of 16 completeness, doesn't he need to finish up with the 17 last two findings and recommendations? 18 MR. DUPREE: I think he can cover that in cross, 19 Judge. 20 THE COURT: I guess you can cover it in your 21 cross. 22 MR. NUNNELLEY: I certainly will, Your Honor. 23 Note for the record that counsel for the 24 Petitioner has not gone into this even though he has 25 been given the opportunity to. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2576 1 BY MR. DUPREE: 2 Q Again, I'm going to show you what's been marked 3 Joint 1, which is the August 16th, 2006 protocols and then 4 Joint 2, which is the May ninth, 2007 protocols and ask you 5 if you've reviewed those? 6 A Yes, I have. 7 Q I would like to take the opportunity to go through 8 those with you. Specifically let's got to the May 9th, 2007 9 protocols. 10 In the definitional section there's a 11 definition of the executioner. Do you see that under 12 definition. 13 MR. DUPREE: It's number two, Your Honor. 14 THE COURT: Yes, uh-huh. 15 THE WITNESS: Yes. 16 MR. DUPREE: And it says, "The executioner where 17 used herein, refers to a person 18 years of age or 18 older who is selected by the warden to initiate the 19 flow of lethal chemicals into the inmate. 20 Is that what it says? 21 A It says that, yes. 22 Q Do you have concerns about that particular 23 definition of a person who's the executioner? 24 A Those are inadequate criteria for reasonably 25 ensuring the person who is injecting the drugs can do so in OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2577 1 an appropriate way or the way that can induce anesthesia in 2 a safe way in preparation for executing by potassium. 3 Q Is there anything else other than the fact that 4 the person is 18 years of age or older, is there anything 5 else the person has to be qualified to do? 6 A If there is, it's not stated in the protocol. 7 Q Do you know if he's -- do you know if the 8 executioner who's picked by the warden has any 9 qualifications whatsoever other than being over the age of 10 18? 11 A I don't know. 12 Q Now, turn to page two, please. Looking at the 13 selection of the execution team. There are two separate 14 teams; is that correct? 15 A Yes. 16 Q One would be under A which is the security team, 17 correct? 18 A Yes. 19 Q "And the security staff should be responsible for 20 moving the condemned inmate to the execution gurney. Once 21 the inmate is restrained on the gurney, only a necessary 22 number of security team members as determined by the warden 23 shall remain in the execution chamber." Correct? 24 A Yes. 25 Q Then you go on to technical team members and it OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2578 1 says, "The warden shall select personnel to perform the 2 technical procedures needed to carry out an execution by 3 lethal injection, including the mixing of the chemicals and 4 placement of the IV or intravenous access lines. Do you see 5 that? 6 A Yes, that's right. I see it. 7 Q Now, with regard to the technical team members, is 8 there anything there that tells you what the qualifications 9 of the technical team members have to be? 10 A There's nothing there at all. 11 Q Does it tell you anything about who the person is 12 that should be mixing the chemicals? 13 A No. 14 Q Does it tell you anything at all about who's 15 qualified to put the IV lines in? 16 A No. 17 Q Does that cause you concern? 18 A Yes. 19 Q Why is that? 20 A Because these are activities that are complex and 21 there are again, many pitfalls that would not be apparent to 22 a person who's just embarking on it without proper 23 background, training and experience and credentials. 24 Q Number four on page four talks about the training 25 of the execution team and the executioners. Can you read OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2579 1 that silently to yourself, sir? 2 A Okay. 3 Q It says, "there shall be sufficient training to 4 ensure that all personnel involved in the execution process 5 are prepared to carry out their roles for an execution. 6 Does that give you any idea of the 7 qualifications that are necessary for those team members? 8 A No, it does not. 9 Q Does it state anywhere in there whether they have 10 to be licensed, whether they have to have any medical 11 training, whether they have to have any qualifications, any 12 bare minimum qualifications at all? 13 A Nothing at all. 14 Q Now, the last one, the last two, I'm sorry the 15 last three sentences say, "If a person cannot attend a 16 simulation -- " they're talking about training; is that 17 correct? 18 A Yes. 19 Q "-- the warden shall provide a for an additional 20 training opportunity or otherwise ensure that that person is 21 adequately trained to complete their assigned task. 22 Do you know what the training is based upon 23 what it says on number four? 24 A No. 25 Q Do you know how they're being trained? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2580 1 A No. 2 Q Do you know what they're doing for training? 3 A No. 4 Q It stays the simulations shall anticipate various 5 contingencies. Do you see that? 6 A Yes. 7 Q In your review of the protocols from May 9th, 8 2007, have you noticed anything in the protocols that would 9 tell what you the various contingencies are? 10 A The only contingencies mentioned is if they 11 believe that the prisoner is not unconscious. It describes 12 some of what they would do there but that's it. 13 Q That's the only contingency. 14 Then it says there should be a written record 15 of any training activities. Do you see that? 16 A Yes. 17 Q Have you been provided with any training logs in 18 this particular case? 19 A No. 20 Q It is also says going to number five, that about 21 the use of checklists. Can you read that to yourself, 22 please? 23 A Okay. 24 Q Have you seen any final checklists in this case, 25 sir? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2581 1 A I've seen what I believe were draft checklists. 2 Q Have you seen anything that was a final checklist? 3 A I have not. 4 Q Going to number six where it says, purchase and 5 maintenance of lethal chemicals. It says "A designated 6 member of the execution team will purchase, and at all times 7 ensure a sufficient supply of the chemicals to be used in a 8 lethal injection process. Then it goes on to say the 9 designated team member will ensure that the lethal chemicals 10 have not reached or surpassed the expiration dates. The 11 lethal chemicals stored securely at all times as required by 12 state and Federal law. Did you read that, sir? 13 A Yes. 14 Q Does it tell who the designated team member is? 15 A No. 16 Q Does it tell you what qualifications they have for 17 handling these drugs? 18 A No. 19 Q Does do it lay out -- you're aware for instance, 20 the thiopental is a protected by Federal law; is that 21 correct. 22 A Scheduled controlled substance. It's a drug of 23 abuse. 24 Q And your hospital setting is that controlled, is 25 there regulations you follow regarding the Federal OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2582 1 regulations? 2 A It's very tightly regulated. 3 Q Okay. Please turn to page three. 4 It says, "Approximately one week priority 5 prior to the execution the warden will designate one or more 6 members of the execution team to review the inmate's medical 7 file. 8 THE COURT: What page? 9 MR. DUPREE: I'm sorry, Your Honor, it's page 10 three. And it says under 8(A). Under eight it says 11 approximately one week prior to execution. 12 THE COURT: Okay, wait a minute. Okay, I'm with 13 you. Go ahead. 14 BY MR. DUPREE: 15 Q It says, "The warden will designate one or more 16 members of the execution team to review the inmate's medical 17 file and to make a limited physical examination of the 18 inmate to determine whether there are any medical issues 19 that could potentially interfere with the proper 20 administration of the lethal injection process. That team 21 member will verbally report his/her findings to the warden 22 as soon as is practicable following the file view and 23 physical exam. The result of the exam will be documented in 24 the inmate's file. After reviewing the results of 25 examination, which will include the determination of the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2583 1 best access site, the warden shall determine, what is the 2 more suitable method of venous access (peripheral or 3 femoral) for the lethal injection process given the 4 individual circumstances of the condemned inmate." 5 I want to break that up a little bit. When 6 it talks about the warden designating one or more members of 7 the execution team does it tell you which member of the team 8 it is? 9 A It does not. 10 Q Does it tell you anything about the qualifications 11 of that person? 12 A It does not. 13 Q Even though this contemplates a physical 14 examination of the inmate, is there any designation here 15 that this person has to have any medical training? 16 A No. 17 Q Do you know the qualifications -- in this 18 protocol, do you know the qualifications of the person who's 19 going to do this physical examination of the inmate? 20 A No. 21 Q Do you see anything here, whether the person is 22 licensed to conduct physical examinations? 23 A No. 24 Q Now, that person's going to report to the warden; 25 is that correct? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2584 1 A Yes. 2 Q Now, do you know if the warden has any medical 3 training? 4 A I don't believe that they do. 5 Q Okay. I'm going to represent to you that Warden 6 Cannon who's going to be the new person doing the executions 7 says he has no medical training. Would this be a concern to 8 you? 9 A It's sort of nonsensical. Why would one person 10 report to a person with no medical background, i.e. the 11 warden and then the warden says would be the one, the warden 12 shall determine the most suitable method of venous access. 13 It's sort of absurd. 14 Furthermore, you really can't -- in many main 15 cases you can't make that determination until you actually 16 try to get venous access. Just looking at somebody and 17 trying to know what the most suitable method is, is not, 18 it's only part of the process. You really only find out 19 what the most suitable method is when you start trying to 20 obtain IV access. 21 Q Now, talking about in terms of access site, you 22 just said you can't just look at it and make that 23 determination. But you don't even know if the person that's 24 making that determination has any medical qualifications at 25 all based on this protocol; do you sir? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2585 1 A That's right. 2 Q And in determining what is a suitable method of 3 venous access, peripheral or femoral, do you have some 4 concerns about that? 5 A That's a medical determination, it would require 6 medical background. And it also, it doesn't really make 7 sense for one person to do the physical examination and 8 leave that decision to another person who's never, who 9 hasn't done the physical examination. It should be one in 10 the same person looking at the veins and arms and in leg or 11 whatever they're going to look at and decide what they're 12 going to try to do. 13 Q And since Warden Cannon does not have any medical 14 training, should he been the person determining what the 15 most suitable method of venous access would be? 16 A No. 17 Q It talks about peripheral access versus femoral, 18 could you please describe for Judge Angel the difference 19 between peripheral and femoral? 20 THE COURT: Thank you. 21 MR. DUPREE: I saw you looking, Judge. 22 THE WITNESS: Sure. We talk about IV access, we 23 break it down into two large types of groups of access. 24 There's the peripheral access, the heart is the center 25 of the body so peripheral access are in places that are OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2586 1 far away from the heart or center of the circulation. 2 We're thinking in terms of circulation here. So, the 3 hands and the elbows, the arms, the feet, the ankles, 4 the legs, those are peripheral intravenous access 5 sites. 6 When you get much closer to the heart then we call 7 them central venous access sites. The catheters that 8 go into the central sites and there are three main 9 sites; the femoral, which is the femoral vein in the, 10 groin, in the crease of the groin, the subclavian vein 11 under the clavicle or the collarbone and goes into the 12 home and then the internal jugular vein is inside the 13 neck and it goes down into the heart. 14 The catheters that go into those veins are usually 15 about six or seven inches long, so the tip of that 16 catheter is very close to the heart or sometimes in the 17 heart and so we call those central catheters. If 18 they're reaching almost to the heart and sometimes in 19 the heart. So, those are central catheters or central 20 lines. 21 So, it doesn't make any sense, with all due 22 respect, it makes no more sense for the warden to 23 determine than for you to determine it which would be 24 the appropriate access site in a given individual. 25 BY MR. DUPREE: OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2587 1 Q Have you ever had to insert a femoral line? 2 A Many times. 3 Q And what kind of training does that take? 4 A First of all, background has to learn the anatomy 5 of the veins in the groin area, the veins and the artery and 6 the nerve, all the important structures; where the bladder 7 and bowel are, how close they are so you understand where 8 you're putting these large needles and catheters so that you 9 know what problems to avoid. And then you have to be taught 10 elbow-to-elbow training by a person who's qualified to teach 11 you how to do it. 12 THE COURT: Is there some place else in these 13 protocols that talks about access. 14 MR. DUPREE: Central lines? We're going to get to 15 that Judge, I promise you. 16 THE COURT: I mean, some of the body location part 17 talks about. Is that the only word, femoral. 18 MR. DUPREE: That's the only place they talk about 19 femoral. The other part talks about central lines with 20 or without venous cutdown. 21 THE COURT: There's something in here that talks 22 about -- 23 MR. NUNNELLEY: Judge, that's over on page six 24 under subparagraph ten where they're talking about 30 25 minutes before the execution when they're actually OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2588 1 setting up the IVs. 2 THE COURT: Here one word, antecubital fossa. 3 BY MR. DUPREE: 4 Q Show the Judge where that is. 5 THE COURT: I got it on page six. 6 MR. DUPREE: No, I want the doctor to show you. 7 THE COURT: Oh, that's another name for elbow, 8 right? 9 THE WITNESS: Yeah, the front soft side of the 10 elbow where the veins run in most people. That's it. 11 THE COURT: There. 12 THE WITNESS: Exactly. 13 THE COURT: Here. 14 THE WITNESS: Yeah, that general region. 15 THE COURT: Okay, elbow. So, we've identified an 16 elbow. That's one body location. 17 MR. DUPREE: To make it clear, Judge, it just says 18 peripheral. 19 THE COURT: Okay. But then now we're talking 20 about another on that is -- 21 MR. DUPREE: Femoral. 22 THE COURT: -- a little more specific that's 23 called -- what page were we on, page three. 24 MR. DUPREE: Page three, Your Honor under 8(A). 25 THE COURT: Oh, femoral that's a specific OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2589 1 location, right? 2 THE WITNESS: Yes, sir. The femoral vein, which 3 is down in what we call the inguinal crease which is 4 that kinda line that people have. 5 THE COURT: Can it be on the other side. 6 THE WITNESS: Yeah, there's one on each side. 7 THE COURT: Okay. So, that's a pretty specific. 8 THE WITNESS: Yes, sir. 9 THE COURT: So, is there any other specific body 10 part mentioned, the location here that's -- 11 MR. NUNNELLEY: Later on when we get into the 12 venous, later on it will get cleared up. 13 THE COURT: Okay. 14 MR. DUPREE: I'll make that clear, Judge. 15 THE COURT: Okay. At some point I thought we were 16 talking about the legs but I don't know. 17 MR. DUPREE: Judge, if you got questions, I want 18 to you clear them up. 19 THE COURT: Is that anywhere in here, legs? 20 MR. DUPREE: I think it might be included in 21 peripheral because -- 22 THE COURT: Nothing more specific than that? 23 MR. DUPREE: No, sir. 24 THE COURT: Okay. 25 BY MR. DUPREE: OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2590 1 Q I'm going to show you what's been marked as 2 Defendant's 17 and ask if you recognize that photograph? 3 A Yes, I do. 4 Q And what is that? 5 A It's a photograph from an execution in Missouri 6 where a femoral central line was put in the prisoner to 7 accomplish the execution. 8 Q And does that truly and accurately depict the 9 insert, the femoral stick? 10 A It was what a generic femoral central line would 11 look like. I did not see the execution. It looks like, 12 it's a photograph. 13 MR. DUPREE: Your Honor, I would move Defendant's 14 17 into evidence. 15 MR. NUNNELLEY: It's irrelevant, Your Honor. 16 What's the relevance of this, of a Missouri execution. 17 MR. DUPREE: Judge, it shows what the femoral line 18 is. 19 THE COURT: Overruled. Admitted. 20 (The last-above-referred-to item was received and 21 filed in evidence as Defendant's Exhibit 17.) 22 THE COURT: You said femoral central? 23 MR. DUPREE: We're going to get to central lines, 24 Judge. 25 THE COURT: Central meant heart. Okay. Go ahead. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2591 1 THE WITNESS: Your Honor, the catheter that goes 2 in is about that long and so it enters here, it winds 3 up residing at about this level and that is in the 4 venous system in the middle of the body. Doctors 5 discuss is it a femoral line, a central line or a 6 peripheral line. It's a semantic distinction. From 7 our point of view we think of them as central lines. 8 It is a little bit further away from the heart than the 9 ones that comes in from the top because the heart is 10 closer to the top of our body cavity than it is to the 11 bottom. 12 BY MR. DUPREE: 13 Q Directing your attention further down turning to 14 page four. 15 MR. DUPREE: We're talking now, Your Honor, under 16 the heading of number nine on the day of the execution 17 and going on with the page at the top of page four 18 which talks about the mixing of the chemicals. 19 THE COURT: In the protocols? 20 MR. DUPREE: In the protocols. Yes, sir. 21 THE COURT: Okay. 22 MR. DUPREE: Okay. It says there is, "A 23 designated member of the execution team and the 24 presence of one or more additional members of the 25 execution team including an independent observer from OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2592 1 the Florida Department of Law Enforcement will prepare 2 the lethal injection chemicals as follows, ensuring 3 that each syringe used in the lethal injection process 4 is appropriately labeled including the name of the 5 chemical contained therein." 6 BY MR. DUPREE: 7 Q Now, first of all, do you know who the designated 8 team member is? 9 A No. 10 Q Do you know what their qualifications are to mix 11 any of the drugs? 12 A No. 13 Q Do you know what their training is? 14 A No. 15 Q Do you know if they're licensed to mix drugs? 16 A No. 17 Q Now, we talked a little bit about the sodium 18 pentothal. Do you know whether or not there are any 19 packaging instruction that come along with the thiopental, 20 sodium pentathal. Are you familiar with those? 21 A Yes, drugs come with a thing called a package 22 insert. It's a set of distilled information that 23 fundamental need-to-know information that you have on hand 24 when you use the drug. 25 Q I'm going to show what's marked as Defendant's OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2593 1 Number 18 for identification and ask you if you know what 2 that is? 3 A Yes, it's a pentothal package insert. 4 Q Who puts that packaging insert in there? 5 A The manufacturer. 6 Q Who does the manufacturer contemplate that will be 7 mixing the sodium pentothal? 8 A I don't know about the veterinary practice but in 9 medical practice thiopental or pentothal is mixed by 10 anesthesiologists and by pharmacists and I suppose 11 anesthesiology residents and nurse anesthetist. 12 Q And why does that have to be done by somebody 13 who's trained? 14 A The consequences of an error in mixing are severe. 15 THE COURT: Doctor, I got to ask you something. 16 This, does it come already mixed? 17 MR. DUPREE: No, sir. 18 THE COURT: We're talking about two bottles of s 19 substances that you have to mix. 20 BY MR. DUPREE: 21 Q Explain it to the Judge. 22 A It's two bottles. One has powder in it and one 23 has water in it and one has to use a syringe to take the 24 water out of the water container and inject it into the one 25 with the powder. And depending on how much water you put in OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2594 1 determines the concentration. Is it a five percent 2 solution, or ten percent solution or a two and-a-half 3 percent solution, depending if it's properly mixed up One d 4 then would have to know how to evaluate the result of the 5 mixing to know if you have a good batch or a good mix of the 6 chemical. 7 Q And you don't know who that team member is? 8 A No. 9 Q Do you know whether or not the people, the 10 independent observers from the Florida Department of Law 11 Enforcement have any training or qualifications or 12 background in the mixing of the drugs? 13 A No, I don't know. 14 Q Do you know if the person -- let's read it. It 15 says, "A designated member of the execution team -- " We've 16 already covered him. "-- in the presence of one or more 17 additional members of the execution team." Do you know who 18 those one or more members would be? 19 A No. 20 Q Do you know anything about their training, their 21 qualifications -- 22 A I know nothing about any of this. 23 Q Now, if in terms of mixing the sodium penithol and 24 the process described in the protocols, does that, you see 25 there about the training of the person who's supposed to be OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2595 1 doing that? 2 A No. 3 Q Do you see what their qualifications are? 4 A No. 5 Q And what their training is? 6 A Same as the other ones, I don't know anything 7 about them. 8 Q Would that be a problem with regard to fixing up 9 the syringes of the sodium pentothal? 10 A Yes. 11 Q Why would that be a problem? 12 A For the same reason. These are, these drugs are 13 more sophisticated and complex than almost all other drugs. 14 They're -- thiopental is, it's behavior inside the body is 15 complicated and confusing and nobody should be handling it 16 or administering it without understanding those issues. 17 Q If terms of pancuronium bromide, which is again 18 number two on page four, do you know anything about the 19 qualifications of the person who's dealing with the 20 pancuronium bromide? 21 A No. 22 Q Let me go back to the thiopental for just a 23 second? 24 MR. DUPREE: Your Honor, I have previously shown 25 Doctor Heath Defendant's Exhibit 18. I'm moving OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2596 1 Defendant's 18 into evidence, which is the packaging. 2 THE COURT: Admitted. 3 (The last-above-referred-to item was received and 4 filed in evidence as Defendant's Exhibit 18.) 5 BY MR. DUPREE: 6 Q In terms of potassium chloride, do we have the 7 same situation that we had with the sodium pentothal and 8 pancuronium? 9 A Yes. 10 Q Now, you before had -- 11 A With the clarification, it doesn't have to be 12 mixed. 13 Q I understand. 14 Now, you had told us before, this morning 15 about potassium chloride being a particularly noxious 16 stimuli because of its effect on the heart; is that correct? 17 A And on the nerves in the arm and the veins in the 18 arm. 19 Q And that's why you have to use the sodium 20 pentothal and you have to use the pancuronium or sodium 21 pentothal and pancuronium; is that correct? 22 A I don't believe that -- the pancuronium doesn't 23 help with the anesthesia. The pancuronium just paralyzes 24 the person but it does not reduce pain and can confer agony. 25 Yes, the pentothal is the all important drug that needs to OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2597 1 be there been and you need no know it's working before you 2 give somebody potassium. 3 Q That's because potassium is noxious? 4 A It's extremely painful. It's more than noxious. 5 THE COURT: What is extremely painful? 6 MR. DUPREE: Potassium chloride, Your Honor. And 7 I believe Doctor Dershwitz testified to that. 8 THE COURT: He said it said it before too. 9 MR. DUPREE: Yes, sir. 10 BY MR. DUPREE: 11 Q Again, going down, let's go over to page five that 12 letter G. It says, "The designated member of the execution 13 team who has prepared the lethal chemicals -- " And we've 14 already discussed the problems with all of that. "-- will 15 transport them personally in the presence of one or more 16 additional member of the execution team to the executioner's 17 room; is that correct? 18 A Yes. 19 Q And then I want to be clear on this. "Stand A 20 will be placed on the worktop for the use by the primary 21 executioner. Stand B will be placed on the shelf underneath 22 the worktop; is that correct? 23 A Yes. 24 THE COURT: Underneath what? 25 MR. DUPREE: Stand B will be placed on a shelf OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2598 1 underneath. 2 THE COURT: What? 3 MR. DUPREE: Underneath Rack A, stand A. 4 THE COURT: Okay. 5 MR. DUPREE: Okay. 6 BY MR. DUPREE: 7 Q And they'll remain secure in a locked room until 8 the executioners arrive." Is that correct? 9 A Yes, they're talking about a thing called a 10 worktop, which I've never heard that colloquialism but I 11 think they're meaning a work surface like a bench-like 12 surface. So in line four paragraph G you said stand will be 13 placed on the worktop and the Stand B goes underneath the 14 worktop. I think it means like a work surface or a bench is 15 what I'm inferring or work bench. 16 Q Okay. Let's go down to H. It says, "A designated 17 member the execution team will prepare using aseptic 18 technique. Two standard IV intravenous IV infusion sets 19 each consisting of a prefilled sterile plastic bag of normal 20 saline for IV use with an attached drip chamber, a long 21 sterile tube fitted with a back check valve, a clamp to 22 regulate the flow, a connector to attach to attach to the 23 access device, an extension set fitted with a Luer Lok tip 24 for a blood cannula to allow for the infusion for the lethal 25 chemicals into the line." OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2599 1 Do you know anything based on the protocols 2 do you know anything about the training and qualifications 3 of the designated members of the team who's scheduled to 4 perform this activity? 5 A No, it's same as the other things. 6 Q We already talked about the extention this 7 morning; is that correct? 8 A Yes. 9 Q Going down to approximately 30 minutes prior to 10 the execution. 11 Your Honor, that's on page six, number ten, 12 approximately 30 minutes prior to the execution. 13 When it talks about one or more designated 14 members of the execution team, I'm sorry, go to down to G, 15 please. "One or more designated members of the execution 16 team will attach the leads to two heart monitors to the 17 inmate's chest ensuring that the monitors are operational 18 both before and after the chest restraints are secured." 19 Do you see that? 20 A Yes. 21 Q Do you know anything about the qualifications of 22 the person that are supposed to be doing that? 23 A No. 24 Q Do you know anything about the qualifications of 25 the persons that are supposed to be reading EKG to determine OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2600 1 that it was done correctly? 2 A No. 3 Q We're going to get to H. I want to go through 4 this slowly. "A designated member of the execution team 5 will insert one IV line into each arm at the medial aspect 6 of the antecubital fossa of the inmate and ensure the saline 7 drip is flowing freely." 8 Is that what it says? 9 A Yes. 10 Q Do you know anything about the qualifications of 11 the designated member of that team? 12 A No. 13 Q Do you know who that designated member is? 14 A No. 15 Q And in fact, going back to page two, Your Honor, 16 under three where it says selection of the execution team, 17 we talked about the break up between a security team members 18 and the technical team members. All this says is a member 19 of the execution team will do this; is that correct? 20 A Right, I don't know if it's the security side or 21 the technical side. 22 Q You don't know? 23 A No. 24 Q Then it says the team member will designate one IV 25 line as a primary line and clearly identify it with a OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2601 1 "Number One". Now, is that a change from the August 16, 2 2006 protocol where they used to call it Line A? 3 A Yes. 4 Q And then if says the team member will designate 5 the other line as a secondary line and clearly identify it 6 with "number two." Is that also a change from the August 7 16, 2006 protocols where they used to call it Line B? 8 A Yes. 9 Q And it says if venous access cannot be achieved in 10 either or both of the arms, access will be secured at other 11 appropriate sites until peripheral venous access is achieved 12 at two separate locations one identified as a primary 13 injection site and the other identified as a secondary 14 injection site; is that correct? 15 A Yes. 16 Q Now, do you know first of all, let's go back to 17 the team member. You don't know anything about their 18 training, nothing about their qualifications; is that 19 correct? 20 A That's correct. 21 Q You don't know whether they have any kind of a 22 medical background? 23 A Right. 24 Q You don't know whether these people insert IVs 25 on -- for a living? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2602 1 A Not as defined by the protocol. 2 Q And the Department of Corrections already had 3 difficulty in the Diaz execution inserting two IV lines to 4 properly administer the drugs; is that correct? 5 MR. NUNNELLEY: Objection. Leading. This is his 6 witness. He could ask the proper questions, Your 7 Honor. 8 THE COURT: Overruled. You can answer it. 9 THE WITNESS: The personnel who placed the IVs 10 failed to establish adequate or effective or safe IV 11 access. 12 BY MR. DUPREE: 13 Q Now, since than venous access. If it can't be 14 achieved in either or both of the arms, it will be secured 15 in other appropriate sites until peripheral venous access is 16 achieved at two separate locations. 17 Does it tell you what sites they are going to 18 look at. 19 A No, it doesn't. 20 Q Then it says under I, and again, I want to go 21 slowly with this because I think Your Honor had a question 22 about this? 23 THE COURT: Well, you're getting close to these 24 other body parts. 25 MR. DUPREE: That's what we're talking about. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2603 1 THE COURT: We're getting there. 2 MR. DUPREE: Okay. 3 THE COURT: Come up later. 4 MR. DUPREE: Right. 5 BY MR. DUPREE: 6 "If peripheral venous access cannot be achieved, a 7 designated member of the execution team will perform a 8 central venous line placement with or without a venous 9 cutdown (wherein a vein is exposed surgically and a 10 cannula is inserted) at one or more sites deemed 11 appropriate by that team member. If two sites are 12 accessed, the extension sets attached to each line will 13 be identified with a one or two, depending on the 14 identification as a primary and secondary sites." 15 Do you see that? 16 A I do. 17 Q Let's talk first of all, about if peripheral 18 venous access cannot be achieved that a person is going to 19 do -- first of all, it says a designated member of the 20 execution team will perform a central venous line placement. 21 Do you know first of all who the designated 22 member of the execution team is? 23 A No. 24 Q It could be the security personnel based upon the 25 definitions in the protocols? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2604 1 MR. NUNNELLEY: Your Honor, that is an outright 2 falsehood based upon these protocols and Mr. Dupree 3 knows it. 4 MR. DUPREE: Judge, I'm reading the protocols. 5 That's what it says. 6 THE COURT: Overruled. You may answer. 7 BY MR. DUPREE: 8 Q So, you don't know who the designated member of 9 execution team is; is that correct? 10 A It does not say. It just says a member of the 11 execution team and then on page two it defined execution 12 team as having security team members and technical team 13 members. It doesn't say from which population this 14 individual would be drawn from. 15 MR. NUNNELLEY: Your Honor, again, I object to 16 this mischaracterization of the record. I'll deal with 17 it on cross but I'm trying to keep the confusion down 18 because it clearly says in paragraph three the 19 technical team members are the ones that do the IVs and 20 mix the drugs and this witness with the assistance of 21 this lawyer is misleading the Court and jumbling the 22 record about what the truth set out in these protocols 23 is. 24 THE COURT: You can cover it on cross. 25 Go ahead. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2605 1 MR. DUPREE: Thank you, Judge. 2 BY MR. DUPREE: 3 Q Now, his Honor was asking you about earlier we 4 were talking about femoral placement is that correct? And 5 you said there's some debate as to whether femoral was a 6 central line access. 7 A I wouldn't exactly call it debate because nobody 8 really cares. It's a semantic issue. We all know what a 9 femoral line is, we all know why we put them in, we all know 10 what we use them for. The tip of it is not in the actual 11 chest compartment of the body. It tends to be in the 12 abdominal part, so from some technical points of view it 13 would not qualify as a central line. I don't think anybody 14 would call it a peripheral line. It would either be a 15 hybrid or a central line. Most of us colloquially through 16 the different states and hospitals where I've worked 17 everybody thinks a femoral line is a central line. 18 Q I would like for you to describe to the Judge, if 19 you could, in terms of actually doing a central line where a 20 vein is exposed surgically and a cannula is inserted. If 21 you'd talk to the Judge about that. How is it done? Do you 22 do that in your practice? 23 A All the time, yes. 24 Q Okay. What kind of training does that take? 25 A I had to pass an online, take an online course OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2606 1 last week and get certified and answer a bunch of questions 2 to be able to continue doing it in my hospital. But that's 3 on top of learning in school at the anatomy of each of these 4 areas is and of getting elbow-to-elbow hands-on training 5 many, many times being shown by good teachers how to do this 6 properly and then also being taught what the complications 7 are and how to detect and correct those complications and to 8 become a Board certified anesthesiologist you get asked lot 9 of questions about what can go wrong during of the placement 10 of central lines and how would you recognize those things 11 and how one would treat those things. Very bad 12 complications can and do occur during placement of the 13 central lines. 14 Q How is the central line accessed? Talk to the 15 Judge about the various central lines and how they're 16 accessed. 17 A One can do a, for example, in the femoral area one 18 can do a cutdown or -- 19 Q What is a cutdown? 20 A A cutdown is where you stretch the person out so 21 you have good access to the their groin. You prep the area, 22 you make it sterile and then you, if they are awake one 23 ought to give local anesthesia because otherwise it would be 24 very painful. Take the scalpel and retractors and you make 25 a surgical incision and you cut down through the layers of OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2607 1 skin and fat until you get to the area where the blood 2 vessels are, the artery and the vein and you identify the 3 vein and when you can see it there right in front of your 4 eyes the bottom of this incision that you've made and opened 5 up, then you direct under direct vision you insert the 6 catheter right through that vein. 7 Q Do you know based upon the protocols, whether or 8 not the Department of Corrections or their execution team -- 9 let me just rephrase that. 10 Do you know whether there's any member of the 11 execution team that is qualified to do that procedure? 12 A I have no idea. 13 Q Do you see in page six, number ten, Line I that 14 anything that tells you what the qualifications would be for 15 somebody to actually cut open a person to expose a vein? 16 A No, there's nothing there at all. 17 Q So, where it says here with or without a venous 18 cutdown, they make a sound like a simple procedures. It's 19 not a simple procedure I take it? 20 A I don't do venous cutdowns myself. I do lots of 21 IV access, intravenous access is the cornerstone of my job. 22 And I put in central lines routinely, many times a week. 23 THE COURT: What is a cutdown? 24 THE WITNESS: That's the one I was describing 25 where you make an incision, you cut down. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2608 1 THE COURT: That's the cutdown. 2 THE WITNESS: You cut through the skin and open up 3 the successive layers of tissue and you stop the 4 bleeding on the way in until you get to where the vein 5 is exposed and then you put your catheter in directly 6 into the vein. This is not a cutdown. This is where 7 it's inserted directly. You see there's no big 8 incision here. In a cutdown there would be an incision 9 like that and you would be able to see the vein at the 10 bottom of it and the catheter would be going into that 11 vein. It's opening up the body. This is just going 12 through the skin and it's a very different technique 13 and that's the one that I and the vast majority of my 14 colleagues use to get IV access when we have to get a 15 central line in place. 16 THE COURT: That is the femoral. Femoral central 17 access? 18 THE WITNESS: Femoral central line but this is not 19 a cutdown. It could be done with a cutdown. This is 20 one is without a cutdown what do you call that if it's 21 not a cutdown? 22 THE WITNESS: It's called percutaneous. It means 23 it goes through the skin instead of opening up the skin 24 to make like a valley and going down the middle of that 25 opening, you go right just through the skin. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2609 1 BY MR. DUPREE: 2 Q Moving over to page seven, it says, "One or more 3 designated members of the execution team will remove one at 4 a time from the pole attached to the gurney the two saline 5 bags and pass the bags along with the extension sets labeled 6 one and two through a small opening in the executioner's 7 room where the primary or secondary executioner will hang 8 the bags, plural, on the separate looks inside the room. 9 The designated team members will ensure that the tubing from 10 the IV insertion points to the bags has not been compromised 11 and that the saline drip is flowing freely." 12 Again, do you know who those team members 13 are? 14 A No, it just says designated team members of the 15 execution team. 16 Q Does it tell you anything about their 17 qualifications -- 18 A No. 19 Q -- to view the apparatus that we examined earlier 20 to make sure it was okay -- 21 A No. 22 Q -- and working properly? 23 A Just to clarify, it says the designated team 24 member hand it through to the executioners, the primary and 25 secondary executioners. So, we know that the executioners OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2610 1 are over 18 but we don't know anything more about them. The 2 designated team members, execution team members we also 3 don't know anything about them. 4 Q We talk about them passing it through? 5 MR. DUPREE: Judge, I just want to do this so I'm 6 clear that you -- if you could just show His Honor, 7 Judge Angel, what they're talking about when they talk 8 about taking the saline bags from the gurney and then 9 placing them up on the racks. Again, what I'm showing 10 the witness, Judge, is 8-Y and State's 8. 11 THE WITNESS: Just to clarify, I've never seen 12 them do this. 13 BY MR. DUPREE: 14 Q I understand. 15 A It's been shown to me in other states in the 16 chambers and I'm inferring from common sense and how they 17 describe it, that the IV bags would be -- one end of the 18 tubing is attached to the prisoner's arm right here. 19 THE COURT: I see. 20 THE WITNESS: And then the IV bag gets handed 21 through this hole here through the wall into the drug 22 room. 23 BY MR. DUPREE: 24 Q And showing 8-Z. 25 A And then I'm just pretty sure judging from where OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2611 1 this hole is compared to where this is on this wall if this 2 is the hole behind a cover here on this wall, though I'm not 3 certain about that, the tubing would then loop back up to 4 the IV bags which would be hanging from this hook above the 5 window. That's my understanding of it. I'm not certain if 6 that's accurate. 7 Q All right. Let's get down to the bottom of page 8 seven, number 12, administration of execution. Let's go 9 down to D and it says, "In the presence of the secondary 10 executioner and within sight of one or more members of the 11 execution team and one of the FDLE monitors, the primary 12 executioner will administer the lethal chemicals in the 13 following manner. The executioner's going to remove from 14 the stand on the worktop the syringe labeled number one 15 which contains two and-a-half grams (2.5g) of sodium 16 pentothal in solution, place the blunt cannula into the open 17 port of the IV extension set labeled A and push the entire 18 contents of that syringe into the IV port at a rate that 19 meets the injection resistance of the cannula. When the 20 syringe is depleted, he/she will hand the empty syringe to 21 the secondary executioner for safe disposal." 22 Did you read that? 23 A Yes. 24 Q Do you know anything about the qualifications of 25 the executioner and his ability to properly administer the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2612 1 drugs that are contemplated in Florida's Lethal Injection 2 Procedure? 3 A Just that he or she would be 18 or over. 4 Q It says in number two that they're going to remove 5 from the stand on the worktop the syringe labeled number two 6 which contains two and-a-half grams (2.5g) of sodium 7 pentothal solution, place the blunt cannula into the open 8 port of the IV extension set labeled A and push the entire 9 contents of that syringe into the IV port at a rate that 10 meets the injection resistance of the cannula. When the 11 syringe is depleted he/she will hand the empty syringe to 12 the secondary executioner for safe disposal?" 13 Again same thing as number one, you still 14 don't know who the executioner is; is that correct? 15 A That's right. 16 MR. NUNNELLEY: Objection. Cumulative, it's been 17 asked and answered at least ten times. 18 THE COURT: Overruled. Go ahead. 19 BY MR. DUPREE: 20 Q Then it says, "At this point a member of the 21 execution team will assess whether the inmate is 22 unconscious. The warden must determine after consultation, 23 that the inmate is in deed unconscious. Until the inmate is 24 unconscious and warden has ordered the executioners to 25 continue, the executioners shall not proceed to step five." OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2613 1 Can you tell from this protocol as it's 2 written under number tree the qualifications of the member 3 of the execution theme that's going to assess whether the 4 inmate is unconscious? 5 A No, I can't tell. 6 Q Do you know anything about their training or 7 anything about their qualifications? 8 A No. 9 Q Now, it's been represented by Warden Cannon that 10 he's going to be the person who's going to determine 11 consciousness after syringe one and syringe two is injected 12 into the inmate. Do you know anything about Warden Cannon's 13 qualifications or training? 14 A The protocol doesn't say anything. 15 Q Do you know whether or not he has any 16 qualifications? 17 A I don't know him at all, no. 18 Q Warden Cannon testified that he has CPR training 19 but he has no other medical background. Would you be 20 concerned and what concerns would you have, if somebody with 21 only CPR training was assessing consciousness after the 22 delivery of five grams of sodium pentothal? 23 A Okay. It doesn't make sense. You need to assess 24 more than consciousness first of all. You have to assess 25 and establish that they're in the surgical plane of OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2614 1 anesthesia. 2 Q Let's go back and let's break this up. 3 A Okay. 4 Q First of all, do you know how they're going to 5 determine if the person is unconscious? 6 A No. 7 Q Does it say anything in the protocols about what 8 they're going to do? 9 A No. 10 Q I'm going to represent to you that Warden Cannon 11 testified that he's going to go to the inmate, grasp him by 12 the shoulders and shake him and call his name. Do you have 13 any concerns about that? 14 A That's not an acceptable method of determining 15 whether a person is adequately anesthetized to be 16 administered concentrated potassium. 17 Q And why is that? 18 A Because a person who's going to be administered or 19 an animal, any thing or person who's going to be 20 administered concentrated potassium has to be in a surgical 21 plane of anesthesia and shaking somebody by the shoulders or 22 came their name is not the appropriate or adequate test for 23 determining surgical plane of anesthesia. 24 Q Judge, as an aside just to cover something. Are 25 you aware of the term CP50? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2615 1 A Yes. 2 Q Do you know what that means? 3 A Yes. 4 Q What is that? 5 A In this context it's a concentration. In this 6 context it's a concentration of the anesthetic drug which is 7 the thiopental that would make 50 percent of people 8 unconscious. If you take 100 people and you got thiopental 9 into their blood at that concentration, half of them would 10 be awake and half of them would be asleep by a certain 11 whatever that definition is of awake versus asleep. 12 Q And back in May, Doctor Derschowitz testified that 13 a level of 7.3 is the CP50 for thiopental. Aware of that? 14 A Yes, I saw his testimony. 15 Q What is your opinion of his testimony? 16 A Well, for using the test of whether a person 17 appropriately follows verbal command, that's that would 18 be -- there's a publication that shows that number of 7.3. 19 So, if you take 100 people and they all have, you got a 20 concentration of 7.3 of thiopental in their blood and then 21 you tell them to raise their right hand half of them will 22 raise their right hand and the other half will either do 23 nothing or raise something else or do something else but 24 they won't raise their right hand. 25 Q Now in terms of the CP50 would the CP50 level have OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2616 1 to go up as a stimulus to a person increased? 2 A Yes, if you wanted to find out what concentration 3 thiopental would stop half the people from responding to a 4 painful stimulation then you have to have a higher 5 concentration of thiopental in the blood. 6 Q So the more noxious the stimuli the higher the 7 concentration of thiopental would have to be? 8 A Right, exactly. 9 Q With regard to a thiopental level of 4.4, what 10 would your opinion be of that effect on the person? 11 A 4.4 micrograms per milliliter, if those are the 12 units you're talking about then that would be, I believe, 13 you're referring to Mr. Diaz's autopsy. Then that would be 14 a concentration that would not produce anesthesia in most 15 people. 16 Q I want to show you -- 17 A -- or unconscious in most people. 18 Q I'm going to show what's been marked as 19 Defendant's Exhibit 3 and Defendant's Exhibit 4 and ask if 20 you recognize those? 21 THE CLERK: Three is not in. 22 THE WITNESS: This, I don't think I've ever seen. 23 BY MR. DUPREE: 24 Q Showing Defendant's Exhibit 3, do you recognize 25 that? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2617 1 MR. NUNNELLEY: Let me see it before we talking 2 about that. 3 THE CLERK: Defendant's 3 is not in evidence. 4 MR. DUPREE: I would move it in, Judge. It's the 5 ME's report. 6 MR. NUNNELLEY: Wait a minute. No, wait a minute. 7 Judge, we're getting confused here. Defense 4, which 8 is the medical examiner report of investigation. No, 9 it's Mr. Dupree's case. Here you can straighten it 10 out. 11 THE COURT: Defense 3, are you moving Defense 3 12 into evidence. 13 MR. DUPREE: Yes, sir. 14 MR. NUNNELLEY: May I see Defense 3 before it's 15 offered? 16 Defense 3 is the report of investigation of Robert 17 Dewey Glock. I object to it because it's absolutely 18 irrelevant. You don't have to snatch it from me. I'll 19 give it to you. 20 (There was a pause.) 21 MS. KEFFER: Your Honor, may we have a minute to 22 straighten this out. They're not quite labeled, I 23 think, the same so we're having to sort through to 24 determine exactly which Defense exhibit it is. 25 THE COURT: All right. Why don't we all take a OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2618 1 break right now. Let me know when you're ready. 2 THE BAILIFF: All rise. 3 (Break was taken.) 4 THE COURT: Okay. Thank you. 5 All right. Proceed with the last witness. 6 MR. DUPREE: Thank you Your Honor. 7 BY MR. DUPREE: 8 Q Doctor Heath, I'm going to show you what's been 9 entered into evidence as Defendant's Exhibit Number 5 and 10 Defendant's Exhibit Number 7 and ask you if you recognize 11 those exhibits. 12 A Yes, I do. 13 Q And what are those exhibits? 14 A Number 5 is a toxicology report. It's a report of 15 the concentrations of different chemicals that were found in 16 the body of Mr. Diaz after the execution. 17 Q And let me specifically go into 5 on page two. 18 A Yes, on page two this exhibit lists the 19 concentration of thiopental that was found in the blood that 20 was drawn from him after -- at the time of the autopsy. 21 Q And do you know when it was drawn? 22 MR. HOOKER: For the Judge that means sodium, 23 right? 24 THE COURT: Thank you. Penalty. 25 THE WITNESS: Sorry, sodium, thanks. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2619 1 BY MR. DUPREE: 2 Q It's 4.4? 3 A Yes. 4 Q Now, you had indicated the CP50 of sodium 5 pentothal is 7.3. 6 A That's the lowest value that I know people use. I 7 know that people have given higher values for it. That is 8 one of the numbers, 7.3, yes. 9 Q And we've talked about as more stimuli that's 10 given to a person that thiopental CP50 level would actually 11 rise; is that correct? 12 A Yes. 13 THE COURT: I'm sorry, did you have a level in 14 there? 15 THE WITNESS: Yes, it's the level of thiopental is 16 listed on page two of four of the report. 17 THE COURT: What was the level? 18 THE WITNESS: 4.4. 19 BY MR. DUPREE: 20 Q And you had discussed the fact if somebody's given 21 a noxious stimuli and is potassium chloride a noxious 22 stimuli? 23 A Concentrated potassium like they're using here is 24 very painful, yes. 25 Q So the CP50 level in terms of thiopental would OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2620 1 have to be much higher; is that correct? 2 A They would have to be in a surgical plane of 3 anesthesia and that would mean a higher concentration of 4 thiopental would be needed. 5 Q Do you know what the percentage would be? 6 A The percentage of what? 7 Q Thiopental, what it would have to be -- 8 A There are different numbers up above ten, as high 9 as 15, I believe. 10 THE COURT: Did you say to be unconscious. 11 MR. DUPREE: No. If you're having, for surgery. 12 THE COURT: Oh, for surgery. 13 MR. DUPREE: For surgery, yes, sir. 14 THE COURT: Ten or more? 15 MR. DUPREE: Ten or more. 16 BY MR. DUPREE: 17 Q Would that be correct? 18 A There are a number of times people have tried to 19 assess this. I think if we think about numbers of ten or 20 more as being good numbers, that would be what people are 21 coming up with. Different studies have found different 22 numbers ranging I think from around seven to around 15, 23 depending on what question exactly you're asking. What 24 exactly you're defining your stimulation testing. 25 BY MR. DUPREE: OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2621 1 Q And I'm showing you a book, Goodson and Gillman's: 2 The Pharmacological Basis of Therapeutics. You see this? 3 A Yes. 4 Q And I'm going to show you on page 348 of that 5 book? 6 MR. NUNNELLEY: Can we have a copy of that at some 7 point? 8 MR. DUPREE: Sure, we can get a copy. 9 MR. NUNNELLEY: For the record, we have not seen 10 that document that's being used with this witness and 11 we, Your Honor, asked that documentary exhibits that 12 were going to be used with Doctor Heath were requested 13 on Wednesday. 14 We're getting one thrown at us at 3:15 on 15 Saturday afternoon. Your Honor, I object to the use of 16 this document or this book with this witness. They 17 have obviously known they were going to use it and 18 they floundered this Court's order and did not give it 19 to me. 20 MR. DUPREE: Your Honor, -- 21 THE COURT: Overrule the objection. You can 22 respond to it however you need to. 23 MR. DUPREE: Just for the record, Judge, I showed 24 the same thing to Doctor Derschowitz two months ago. 25 MR. NUNNELLEY: Your Honor, that doesn't matter. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2622 1 I asked him what exhibits he was going to use with this 2 witness and he hid that one from me until just now. 3 That's all there is to it. It's improper the State's 4 being disadvantaged. 5 THE COURT: Okay. Go ahead. 6 BY MR. DUPREE: 7 Q Is this book authoritative? 8 A Yes. 9 Q What is the thiopental level it says on table 13.2 10 on page 348 of the book. What is the thiopental level, the 11 minimal hypnotic level for thiopental? 12 A Here a lists as a minimal hypnotic level 13 concentration of 15.6. 14 Q Thank you. 15 THE COURT: Minimum for what again? 16 MR. DUPREE: Minimum of the thiopental level. 17 THE COURT: For what? 18 MR. DUPREE: For the CP50. 19 MR. NUNNELLEY: Wait a minute. 20 THE COURT: Minimum for what? For surgery, for 21 consciousness, for what? 22 MR. DUPREE: For the -- 23 MR. NUNNELLEY: Mr. Dupree is not the -- 24 THE COURT: No -- 25 THE COURT REPORTER: One at a time, gentlemen. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2623 1 THE COURT: No, no, I'm not questioning 2 Mr. Dupree. I'm trying to get a clarification of his 3 question. What was the question? 4 MR. DUPREE: The question is according to Goodman 5 and Gillman's, the Pharmacological Basis of 6 Therapeutics, what is the CP50 level of thiopental? 7 THE COURT: Okay. Yes, all right. Thank you, I 8 understand now. 9 MR. DUPREE: Thank you. 10 MR. NUNNELLEY: Is that being introduced into 11 evidence? 12 MR. DUPREE: No, I'm not introducing it. 13 MS. SNURKOWSKI: Can we see it? 14 MR. NUNNELLEY: Can we see it and have a copy of 15 it some time before this hearing concludes? 16 MR. DUPREE: (Handing.) 17 THE COURT: And that CP level was 15-point 18 something? 19 THE WITNESS: 15.6, I think it was. 20 THE COURT: Does that mean that 50 percent of the 21 people would be conscious and 50 unconscious? 22 THE WITNESS: It's saying in that table that 23 that's the minimal hypnotic level. Hypnotic in this 24 term means basically it's medical for sleeping. 25 They're saying that's the minimal level you need for OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2624 1 sleeping. I'd have to read the details of this to know 2 exactly how they define that, but general medical term 3 hypnotic level. 4 THE COURT: I thought you said a minute ago the 5 number was 7.3 or something. 6 MR. DUPREE: That was the testimony of Doctor 7 Derschowitz of 7.3. That's why I was bringing up the 8 15.6, Your Honor. I asked Doctor Derschowitz the same 9 questions. 10 MR. NUNNELLEY: Your Honor, I believe this is the 11 one Doctor Dershwitz further testified that there was a 12 typo in one of the books. I seem to recall some 13 testimony about that. 14 MR. DUPREE: That's certainly what he said. 15 THE COURT: Okay. 16 MR. NUNNELLEY: With that concession, I'll accept 17 that from the Defense, Your Honor. 18 THE COURT: Go ahead. 19 MR. DUPREE: Going back to the protocols 20 specifically on page eight. We were talking about on 21 page eight, number three where we're talking about 22 determining consciousness and we already talked about 23 the warden and I told you that Warden Cannon testified 24 that he was going to after the sodium thiopental is 25 administered to the inmate, he's going to approach the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2625 1 inmate, he's going to grasp his shoulder he's going to 2 shake him. Is that an appropriate way to determine 3 consciousness when you're about to have somebody 4 receive a dose of potassium chloride? 5 A No. 6 Q Why not? 7 A Because this potassium chloride in this 8 concentration, the concentration used for euthanasia in 9 animals or people in executions is extremely painful and it 10 requires a surgical plane of anesthesia a level of 11 anesthesia as which you can do surgery on somebody because 12 it hurts as much as surgery hurts. 13 Q How do you term if somebody's unconscious if you 14 want to make sure on a surgical plain of anesthesia, what do 15 you do to assess whether or not they're conscious? 16 A It depends if they're paralyzed or not. That 17 makes a big difference but -- 18 Q Let's just talk about first -- 19 A We talk about it a medical setting. 20 Q Yes. 21 A In a medical setting a patient has general 22 anesthesia induced and there's usually a period of five or 23 ten minutes where they're being, the area of the incision is 24 made sterile, we call it prepping. They're putting up 25 drapes, the surgeons are scrubbing some activity goes on OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2626 1 after the induction of anesthesia. And then the surgeons 2 come in and start operating and during that time between the 3 induction and when they start operating, we have to be 4 maintaining anesthesia and make sure the anesthesia is at a 5 deep enough depth for the surgery that they're about to 6 start doing. And we do that by all the things that we do to 7 monitor for anesthetic depth. We observe our monitors, the 8 heart rate, the blood pressure, the moisture content of the 9 skin, the size of the pupils. A variety of things like that 10 to help us know what level of anesthesia the patient is 11 under. 12 And then before the surgeon starts operating 13 they will do a test, what we call a test stimulus. They 14 will do something that's really quite, would be quite 15 painful. For example taking a hemostat, it's like a pair of 16 needle-nosed pliers and pinch the skin of their stomach or 17 the operation area very hard and that would make someone 18 jump out of their chair and yelp and they do something like 19 that with gradually increasing force and we watch our 20 monitors to ascertain whether the patient is properly 21 anesthetized for that kind of stimulation. 22 If they can do a real hard pinch with the 23 hemostats and there's no evidence of a response, then we 24 tell the surgeons they can go ahead. If we start getting a 25 response, then we say can you give us a minute and we'll OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2627 1 deepen the anesthesia and then we'll say let's try again and 2 we go ahead again. 3 Q I believe you just compared the injection of the 4 potassium chloride to a surgical plane, to surgery; is that 5 correct? 6 A In the amount of pain it would cause, yes. 7 Q So, the shaking of somebody's shoulders, do you 8 think that's sufficient to determine consciousness in a 9 judicial execution setting in Florida? 10 A Not if you're going to inject potassium. 11 Q Please explain to the Judge why or why not. 12 A If you're going to inject concentrated potassium 13 into somebody, that hurts as much as surgery hurts and it 14 requires a person to be in a surgical plane of anesthesia. 15 When you use potassium to euthanize animals, they have to be 16 a surgical plane of anesthesia. And so you have to do tests 17 to know that the person's in a surgical plane of anesthesia 18 and giving them a shake on their shoulder or saying their 19 name does not tell you that they're in a surgical plane of 20 anesthesia. You can do those tests and they might not 21 respond and then you start hurting them and they'll jump off 22 the operating room table. That's why we have to -- that's 23 if they're not paralyzed. That's why we have to do the 24 proper tests. 25 Q Okay. So, in other words, in number three on page OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2628 1 eight you think that it would -- there's no way that is a 2 sufficient manner in determining conscious in this setting 3 in Florida? 4 A Not if you're going to give potassium to somebody, 5 no. You have to do a proper assessment of anesthetic depth 6 and it's an assessment that would determine whether or not 7 they were in a surgical plane of anesthesia. 8 Q Okay. Now, let's move on to number four. It 9 says, "In the event that the inmate is not unconscious, the 10 warden shall signal that the execution process is suspended 11 and note the time and order the drapes to be closed. The 12 execution team shall assess the viability of the secondary 13 access site. If the secondary access site is or at any time 14 becomes compromised, a designated member of execution team 15 will secure peripheral venous access at another appropriate 16 site or will perform a central venous line placement with or 17 without and venous cutdown at one or more cites deemed 18 appropriate by that team member." 19 You see that? 20 A Yes. 21 Q Now, you've already said that you doesn't think 22 it's sufficient about the warden determining consciousness, 23 correct? 24 A Yes, not in this context. 25 Q All right. Then it says, "The execution team OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2629 1 shall assess the viability of the secondary site." 2 Again, you don't know what the training is, 3 what the qualifications are, you don't know who that member 4 of the team is. Would you agree with that? 5 A Sorry, can you repeat the question? 6 Q Sure. It says, "The execution team shall assess 7 the viability of the secondary access site." 8 Do you know which member of the execution 9 team that's going to be? 10 A No. 11 Q Then it says, "If the secondary access site is or 12 at any time becomes compromised." 13 Does it tell you what compromised means? 14 A That's I think a medical term of art. I know what 15 that means in the context of an IV. It means it's not a 16 good IV for whatever reason. 17 Q Does it say that here in the protocol? 18 A No. 19 Q "A designated member of the execution team will 20 secure peripheral venous access at another appropriate 21 site." 22 Again, do you know who that designated member 23 of the execution team is? 24 A No, but it's inferred that they could also perform 25 a central venous line placement. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2630 1 Q We're going to get that. 2 A No, I don't know who it is. 3 Q Okay. And you don't know what they're training 4 is? Don't know the qualifications. 5 MR. NUNNELLEY: Objection. Leading. Move to 6 strike both questions. 7 THE COURT: Overruled. You may answer. 8 BY MR. DUPREE: 9 Q Then it says the person -- "Or they will perform a 10 central venous line placement with or without venous cutdown 11 at one or more sites deemed appropriate by that team 12 member." 13 Again, you don't know who that team member 14 is? 15 A No. 16 Q Now, do you know what the percentage of doctors 17 are who are qualified to actually perform central lines? 18 A A tried to ascertain that by casually informally 19 polling my colleagues when we talked about this issue of 20 lethal injection. Asked them, you know, what percent of 21 doctors do you think know how to or are qualified to put in 22 a central line and the answer I get is usually between -- 23 MR. NUNNELLEY: Judge, this is absurd. 24 THE COURT: Just rephrase your answer, please. 25 Restate your question. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2631 1 MR. DUPREE: Okay. 2 BY MR. DUPREE: 3 Q Can all doctors perform cutdowns? 4 A No. Between ten and 20 percent would be a 5 reasonable number of the people who could do cutdowns and 6 place central lines. 7 Q And in order to do that type of procedure, what 8 kind of equipment would be needed? 9 A Generally, we have a central line kit which has 10 multiple components in it. It has catheters in it and wires 11 and scalpels and syringes and needles and suture material, 12 suture thread and suture needle and all that, drapes 13 sterilizing solution; all of those things. 14 And then when you're doing that you have to 15 be prepared to address the recognized complications that can 16 occur when you put a central line in. That's another array 17 of equipment because people can die from your putting in a 18 central line before you even get to treat the problem you're 19 trying to treat. 20 Q The equipment that you mentioned, did you see any 21 of that mentioned in the protocols? 22 A No. 23 Q Have you seen any kind of a checklist that was 24 attached to the protocols? 25 A I didn't see any kind of equipment list for OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2632 1 Florida. 2 Q Now, going down to the last couple sentences of 3 number four, it says, "Once the warden is assured that the 4 team has secured a viable access site, the warden shall 5 ordered the drapes be open and signal the execution process 6 will resume. The executioner will then be directed to 7 initiate the administration of the lethal chemicals from 8 Stand B starting with the syringes of sodium pentothal 9 labeled one and two." 10 See that? 11 A Yes. 12 Q And it goes on to say the next one, number five, 13 it says, "The executioner will remove from the stand on the 14 worktop the syringe labeled number three which contains the 15 saline solution." 16 So, going back to number four where it says 17 they're going to do one and two, there's no assessment of 18 consciousness after redoing one and two, is there? 19 MR. NUNNELLEY: Objection. Leading. 20 THE COURT: Restate your question. 21 MR. DUPREE: Sure. 22 BY MR. DUPREE: 23 Q In terms of the last sentence, "The executioners 24 will then be directed to initiate the administration of 25 lethal chemicals from Stand B starting with the syringes of OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2633 1 sodium pentothal labeled one and two." 2 Do you see any assessment of consciousness 3 after that's done? 4 A No, they're going through this as it says, they've 5 injected the pentothal and the guy's still awake. They do 6 these various checks, they put in another IV or central 7 line, whatever they do. And then there's nothing about 8 subsequent check of consciousness. 9 Q Going on to number five it says, "The executioner 10 will remove from the stand on the worktop the syringe 11 labeled number three, which contains 20 millimeters of 12 saline solution, place the blunt cannula in to the open port 13 of the IV extension labeled A." 14 If you look at back at number four, I'm 15 sorry, at number two, don't they start with label A? 16 A Yeah, number five is ridiculous. 17 Q Why is that? 18 A They've been injected, they've been trying to 19 inject thiopental into Line A and they do that and they 20 decide that the prisoner's still awake which is means the 21 pentothal -- 22 THE COURT: Wait a minute, wait a minute. I 23 thought the lines were going to be marked one and two. 24 Now you're talking about Line A. Go ahead. 25 THE WITNESS: If you would permit me to just OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2634 1 transfer the A to one and the B to two. 2 MR. NUNNELLEY: No. 3 MR. DUPREE: I'm just going by what the protocol 4 says period. 5 THE COURT: Okay. Go ahead. 6 THE WITNESS: Well, without referring to what 7 identities of lines are, they've injected, they've 8 tried to inject the pentothal, their anesthesia drub in 9 and the prisoner's still awake, they decide that he's 10 still awake. In step four they talk about how they're 11 going to put in another IV, maybe they'll do a central 12 line or whatever and once they've done that, they go 13 back and they start injecting drugs into that first IV 14 that didn't work. So it makes no sense at all. 15 BY MR. DUPREE: 16 Q And then six, seven and eight, they continue to go 17 into Line A; is that correct? 18 A Yes. 19 (There was a pause.) 20 THE COURT: We changed the Line A and B in the 21 August protocols to Lines One and Two. And now all of 22 a sudden, we're talking about extention sets labeled A 23 and B. Okay. 24 Earlier this talks about Stand A and Stand B, now 25 we're talking about extension set A and B. I thought OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2635 1 we were talking about Lines one and two, syringes one, 2 two, three and four and I understand one, two, three 3 four and five through eight in Stand A and one through 4 five in Stand B. But now we're talking about 5 extensions A and B and I think we've gotten ourselves 6 confused. If not you at least me. Go ahead. 7 MR. DUPREE: I think we're all confused, Judge. 8 THE COURT: Okay. We'll straighten it out. 9 BY MR. DUPREE: 10 Q Turning over to page nine -- 11 THE COURT: Am I correct that an extention is the 12 same thing as a line, a line being -- 13 MR. DUPREE: Judge, I wish I could help you there. 14 THE COURT: A line being that plastic material 15 from a syringe to the arm? 16 MR. DUPREE: Your Honor, I don't know what was in 17 the Department of Corrections' mind when they did this. 18 THE COURT: Okay. 19 MR. DUPREE: I simply have no idea. 20 MR. NUNNELLEY: Your Honor, I don't -- 21 THE COURT: Extention set maybe you all can clear 22 it up, maybe it doesn't need to me, maybe it's already 23 been. I'm assuming that an IV extention set is part of 24 the apparatus that's in evidence. 25 MR. NUNNELLEY: Judge, I believe earlier Doctor OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2636 1 Heath testified that -- 2 THE COURT: I'm assuming that's what, one part 3 called a line and these protocols and another part 4 called an extension set. 5 MR. NUNNELLEY: This part, as I understand it 6 Doctor Heath's testimony and the record will bear this 7 out, and I'm not testifying, Mr. Dupree. Doctor Heath 8 testified that this part of it right here, this part is 9 the extention set. I'll clean that up or clarify that 10 on cross. 11 THE COURT: Okay. That's fine. All that, I would 12 all that to be part of line one, okay. In it's 13 multitudinous parts. Okay, go ahead. 14 MR. DUPREE: That's the problem, Judge. Is it one 15 or A. 16 THE COURT: Okay. 17 MR. DUPREE: Okay. All right. 18 BY MR. DUPREE: 19 Q Now, directing your attention to page nine line E? 20 THE COURT: Page I'm sorry. 21 MR. DUPREE: Page nine and it's paragraph E, Your 22 Honor. 23 THE COURT: E, okay. 24 MR. DUPREE: Okay. 25 BY MR. DUPREE: OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2637 1 Q It says, "If at any time prior to or during the 2 administration of lethal chemicals, the primary venous 3 access site becomes compromised, the warden will stop the 4 execution process." Okay, I didn't notice that. "The 5 warden will stop the execution process stopped and order to 6 draped to be closed." 7 Okay. "The execution team shall assess the 8 primary access site assess the viability of the secondary 9 access site and take appropriate remedial action at the 10 access site." 11 Did you read that? 12 A Yes. 13 Q Do you have any concerns about first of all the 14 language of that? 15 A You're talking about that typo that you were 16 reading there? 17 Q "Stop the execution process stopped." 18 A I assume that's a typographical or editorial or 19 clerical error. 20 Q And it say "The execution team shall assess the 21 primary access site." 22 And again, you don't know who that person is, 23 you don't know what their training or qualifications are, 24 correct? 25 A That's all correct, yes. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2638 1 Q Don't know if they have a medical background? 2 A That's right. 3 Q And they're going to assess the viability of the 4 secondary access site and they're going to take appropriate 5 remedial action if necessary. 6 What does that mean to you? 7 A It's also a circular definitions. They'll do what 8 is appropriate but this is not contingencies training or 9 contingency instructions. Contingency instructions have to 10 give you details. If you're seeing this problem you do the 11 following five or ten or three things in the following 12 order. This just says do the appropriate thing, do the 13 right thing. 14 Q But it doesn't tell you what it is? 15 A It's a circular self-referential description. 16 Q And it doesn't tell you who's going to perform it 17 or if they're even qualified to perform it? 18 A That's right. 19 Q Okay. Then it says, "If neither access site is 20 viable, a designated member of the execution team will 21 secure peripheral venous access at another appropriate site 22 or will perform a central venous line placement with or 23 without a venous cutdown at one or more sites deemed 24 appropriate by that team member." 25 And not to belabor the point, this is OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2639 1 basically the same thing as before. You still don't know 2 who the team member is, if they've got the medical training 3 to do this and especially in terms of the venous cutdown, 4 you don't know if they've got the equipment to do it, if 5 they have the training to do it, if they've ever done it 6 before, if they're even qualified to do it. Would you 7 degree with that. 8 MR. NUNNELLEY: Objection, leading. 9 THE COURT: Overruled. You may answer. 10 THE WITNESS: We don't know any of those things. 11 We don't know about the qualifications or the 12 backgrounds of who are going, who will do these things 13 in and who will figure out how to respond to these 14 contingencies. 15 BY MR. DUPREE: 16 Q Now, in the protocols it appears the warden has a 17 lot of say in what happens; is that correct? He determines 18 which team member's going to do things. What are some the 19 concerns that you would have with a warden determining the 20 qualifications of the people performing the medical 21 procedures? 22 A Well, the prior warden didn't do that job 23 properly. The people who did Mr. Diaz's execution were not 24 qualified to carry out that task. And I'm not aware of any 25 instructions or training that the replacement warden has OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2640 1 received in terms of how to select the correct kind of 2 qualified professionals to do it in the healthcare field and 3 these people would have to be drawn from the healthcare 4 industry. Professionals are hired by people who that's 5 their job to interview and hire and check the backgrounds. 6 So, if I apply for a job as an anesthesiologist in the 7 hospital here in Florida, I'll go through a process of 8 interviews and I'll be evaluated by the hospital 9 credentialing committee to decide whether I'm a person who 10 should be providing anesthesia or doing medical procedures 11 in that hospital. 12 Q How could the warden, who had no medical 13 background determine if you'd be medically qualified to do 14 any of these jobs he's picking people for? 15 A The warden can't and didn't for the Diaz 16 execution. He's the wrong person to make those 17 determinations. 18 Q Okay. And then finally, doctor, is Florida's 19 lethal injection protocols sufficient to avoid the 20 unreasonable risk of infliction of great pain to an inmate 21 in your opinion? 22 A No, it's not. 23 MR. DUPREE: Your Honor, I have no further 24 questions. 25 CROSS-EXAMINATION OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2641 1 MR. NUNNELLEY: Let me get the exhibits back from 2 you, Doctor Heath, before we get them all jumbled up. 3 And we're already doing that. These exhibits are not 4 together. 5 THE WITNESS: Sorry, one's longer than the other. 6 MR. NUNNELLEY: Do you still have Exhibit 9 up 7 here with you, don't you? 8 THE WITNESS: I don't know what number that is. 9 MR. NUNNELLEY: Okay. Madam clerk, can I have 10 Exhibit 9, please, ma'am? 11 THE CLERK: Joint, State or Defense? 12 MR. NUNNELLEY: The protocols, I'm sorry. The May 13 nine protocols. I believe it's Joint 2? The one he's 14 got doesn't have a number. 15 Okay. We've got exhibits scattered all over the 16 courtroom, madam clerk. 17 THE CLERK: Okay. Here is Joint 2. 18 BY MR. NUNNELLEY: 19 Q Doctor Heath, I'm showing you what's in evidence 20 as Joint Exhibit Number 2. Why don't you use the one that's 21 the official copy and not use this one here; if you would, 22 sir. 23 MR. NUNNELLEY: And madam clerk, I'm returning the 24 other documents that were used during direct 25 examination to you. And I wish you good luck with OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2642 1 them. 2 BY MR. NUNNELLEY: 3 Q Now, Doctor Heath, you've testified in 12 times I 4 believe you said. 5 A Approximately, that would probably not be the 6 exact number. 7 Q Always about lethal injection? 8 A Yes. 9 Q Always on behalf of the death-sentenced inmate? 10 A Yes. 11 Q You've never seen a protocol that you liked 12 anywhere at all, have you? 13 A Well, what Judge Fogel was pointing to or 14 suggesting in California was the foundation for what would 15 be an acceptable protocol. 16 Q Okay. That's good. I appreciate that. Now 17 answer my question. You have never found a protocol about 18 which you testified to be acceptable, have you? 19 A No. 20 Q Thank you. 21 Turn to Joint Exhibit Number 2. I'll direct 22 your attention to page one paragraph one which defines the 23 execution team. Why don't you read that paragraph to 24 yourself, sir. 25 A (The witness complied.) OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2643 1 Q What does the State of Florida need to do to fix 2 that paragraph to make it to your liking? 3 THE COURT: Page two paragraph. 4 MR. NUNNELLEY: I'm sorry page one paragraph one. 5 THE COURT: Very good. 6 MR. NUNNELLEY: Starting at the very top right 7 below the letterhead, Judge. 8 THE COURT: Okay. 9 THE WITNESS: Are you talking in the context of 10 them using these drugs or of changing drugs because it 11 would make a big difference. 12 BY MR. NUNNELLEY: 13 Q In the context of using these drugs to start with 14 and then we'll go back and change drugs. In the context of 15 the drugs that are currently in use, what needs to be done 16 with paragraph one on page one to make it suit you, Doctor 17 Heath? 18 A It would have to delineate in clear terms the 19 minimum qualifications that could be held by individuals who 20 are participating in the execution. 21 Q Give me the sort of clear terms that you would 22 find acceptable? 23 A If one were going to use these three drugs then it 24 would and again, I'm not in the business of writing 25 protocols so I'm going to be paraphrasing. It would be OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2644 1 talking, defining individuals who are qualified and 2 experienced in the assessment of anesthetic depth, in the 3 administration of intravenous anesthetic drugs and who are 4 therefore be to ensure that the prisoner is properly 5 anesthetized when they're given the potassium, before 6 they're given the potassium and during the time they're 7 given the potassium. 8 Q Does that person who sounds strangely like an 9 anesthesiologists to me have to do all of the functions 10 associated with the IV process or can someone else establish 11 the IV line, doctor? 12 A Oh, somebody else could establish the IV line. 13 Very often I anesthetized a patient using an IV line that 14 somebody else established. 15 Q Would a registered nurse be a person whom you 16 would find acceptable to establish the IV lines? 17 A Some registered nurses would be acceptable and 18 some are not. The letters after the person's name are not 19 all that one needs to know to know if the person is 20 qualified or appropriate to do the task. 21 Q Give me an example of a registered nurse whom you 22 would find acceptable to establish the IV lines for an 23 execution, Doctor Heath? 24 A If there were a registered nurse who had been 25 credentialed by a healthcare institution in Florida, say a OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2645 1 hospital in Florida, and part of his or her privileges, 2 hospital privileges including establishing and maintaining 3 IV lines, it would be used for induction of anesthesia, that 4 would be fine. If it didn't have background check problems 5 like felonies or other character flaws that would make them 6 unsuitable for participating. 7 Q Okay. So, now it has to be somebody who 8 establishes IV lines for use in anesthesia. Is that what 9 you're telling me? 10 A Some IV lines would not be appropriate for 11 anesthesia and so it shouldn't be a person who is only 12 experienced in those things. Generally, what you do when 13 you're interviewing somebody for a healthcare position is 14 you know what procedures you need them to do and you talk to 15 them about their experience, what they've done in the past. 16 And in your last job what kind of IVs did you put in 17 etcetera, etcetera. You get a sense of whether they're the 18 appropriate person for it or not. 19 Q So, are you telling me that a peripheral IV line 20 established in the antecubital fossa that's used for 21 anesthesia is something different from the IV line 22 established in the antecubital fossa that a paramedic puts 23 in on the street? Are you telling me there's two different 24 things? 25 A I thought you were talking about registered OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2646 1 nurses. I didn't mention the word paramedic at all today I 2 don't believe, so I'm not -- 3 Q If you can't answer my question just say so, 4 doctor and I'll rephrase it. Is that what you're telling 5 me? 6 How about this one. Let's try -- 7 A I'm not sure what even your question is now. 8 Q I understand that, doctor. Let me ask them if you 9 would, sir. Let me try that change that around. 10 A Okay. 11 Q It an IV line that's put in by a registered nurse 12 in the emergency room different from the IV line that's put 13 in by a registered nurse in preparation for surgery when 14 both of those IV lines are established in the antecubital 15 fossa? 16 A It depends. It depends on the individual patient 17 and the context. Generally, I get patients coming from the 18 emergency room or coming from the holding area and the 19 holding area in both of those contexts the IV line could 20 well be placed by a registered nurse. I will assess the IV 21 to make my determination as to whether it's appropriate for 22 inducing and maintaining anesthesia. 23 It depends on what kind of IV they put in. 24 Sometimes the IVs that come from the ER are not appropriate 25 for inducing general anesthesia and then we'll have to OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2647 1 achieve some other form of venous access. 2 Q All right. Then why don't you tell us this so 3 we'll understand so we can fix out protocol so it will suit 4 you, sir. 5 What would be an example of an IV line that's 6 not suitable for a inducing anesthesia? 7 A If it's not properly placed. Sometimes IVs are 8 only partially threaded into the vein and when we're 9 inducing anesthesia we're injecting large volumes relatively 10 quickly compared to what's happening in most IV contexts 11 where things are dripping in slowly. So, it has to be able 12 to handle a much more rapid injection of larger volumes of 13 drugs. And so we get people coming from other parts of the 14 hospital who have had an IV put in but it's very common that 15 we don't use that IV for anesthesia. That happens multiple 16 times a day in just the part of the OR where I work. The 17 people come in with IVs and we don't use them for our 18 anesthesia. 19 Q Would a paramedic be able to establish an 20 appropriate intravenous line for use in lethal injection? 21 A A qualified, experienced, active, licensed, 22 non-felonious paramedic probably would be able to. 23 Q Well, doctor, let's lose the felonious part 24 because I don't think you can be a paramedic if you've got a 25 felony conviction. I don't think you can keep your State OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2648 1 license in Florida so you can quit taking that shot; if you 2 would, sir. It's inappropriate. 3 MR. DUPREE: Objection, Your Honor. 4 MR. NUNNELLEY: Withdrawn. 5 BY MR. NUNNELLEY: 6 Q Now, you've also talked about -- 7 A You didn't say saying about licensing so that's 8 why I don't know if they're currently licensed or not. And 9 we've had people, felons in other states being involved in 10 executions in the medical part of the executions -- 11 Q Just so we're clear on this, Doctor Heath, you 12 have no information whatsoever to suggest that any felons 13 other than the condemned have been involved in Florida 14 executions? 15 A Not in Florida executions but in other states, 16 yes. 17 Q Thank you, sir. 18 Now, you've also talked about in the 19 protocols contemplate the use of either a central line 20 placement or abdomen or perhaps is the way to put it, a 21 cutdown procedure to establish venous access. 22 What sort of person needs to be specified in 23 the protocol to meet your definition of an appropriate 24 person to place a central line? 25 MR. DUPREE: Your Honor, I'm going to object to OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2649 1 this entire line of questioning. What I'm wondering 2 is, if the State is asking us to rewrite their 3 protocols for them. I don't know if that's an 4 appropriate question for this particular witness. 5 THE COURT: Overrule the objection. Go ahead. 6 MR. DUPREE: If I could expand on this, I would 7 just like to apprize the Court that I do a have a very 8 strong level of discomfort in discussing things in this 9 context in terms of providing, as Mr. Dupree says, 10 being the person who's writing the protocols, which is 11 something I'm not doing but I'm trying to be responsive 12 to your questions. I'm trying to balance that tension. 13 If you could repeat the question, please. 14 BY MR. NUNNELLEY: 15 Q What level of qualifications supported by the 16 appropriate documents and the appropriate current licensure 17 is necessary for someone to be satisfactory to you to place 18 a central line in an execution? 19 A It would be exactly the same qualifications, 20 credentials, licensure, etcetera that would be required to 21 place a central line in any person in the State of Florida. 22 Q Which is? 23 A I don't know in detail but I'm going to make the 24 assumption that Florida, the practice of medicine in Florida 25 comports with what I know about other states. That would be OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2650 1 a subset of physicians, probably between ten and 20 percent 2 of physicians, if they're appropriately supervised in 3 accordance with the State law, it could be a physicians 4 assistant, it could be a nurse anesthetist, it could be -- 5 this again, is not in exigent circumstances. Under roadside 6 conditions when you have exigent circumstances, then you 7 have a lower level of people that are allowed to do 8 procedures. So, it may be that in some states emergency 9 medical technician are allowed to perform central lines 10 again, under exigent circumstances. 11 Q But you don't know exactly what the criteria are 12 in Florida? 13 A I don't know, no. 14 Q Okay. What about performing a cutdown procedure? 15 A Just about -- 16 Q Who would be required what sort of credentialing 17 would be required -- 18 A Just to back up, it's not just the letters after 19 your name. You have to get credentials which is a process 20 whereby in a healthcare institution you apply for privileges 21 to do a certain procedure and you get letters from 22 colleagues saying that yes, you know how to do these things, 23 they've observed you in your clinical practice and they 24 though know that you're competent to do these things. 25 So, for a cutdown it would the exact same OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2651 1 thing. You would have to know how to do it and you have to 2 have that, endure a credentialing process that your 3 institution gives you privileges to do that procedure. So, 4 for example, I'm not credentialed to do a cutdown procedure. 5 I don't know how to do them. I have not applied for 6 privileges at the hospital where I work to do cutdown 7 procedures because I don't know how to do it. 8 Q So, you would have to be first of all a doctor? 9 A No. 10 Q You wouldn't have to be a doctor to do a cutdown? 11 A I don't know the exact law in Florida. It is 12 possible that physicians assistants, if they're 13 appropriately supervised, to whatever the legal standard is, 14 would be doing a cutdown also. Again, that would be under 15 the supervision of not just any physician but a physician 16 who themselves is qualified to perform a cutdown. 17 Q So, would it have to be either a doctor or a 18 physician's assistant that was otherwise properly qualified 19 and trained and certified to conduct the cutdown procedure? 20 A I don't know the full universe of people in 21 Florida who do cutdowns in a healthcare setting in a 22 clinical setting, but it should only the people who are 23 drawn from that set of people who would do it in an 24 execution setting because exactly the same issues apply. 25 There's no difference whatsoever to the issues that apply. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2652 1 And furthermore, if a person has to do it 2 under supervision in the hospital, they would need that same 3 level of supervision if they were doing it in execution. 4 Q So what you're saying is it needs to be somebody 5 that does it in their day job, right? 6 A Yes, someone who's proficient. Not literally day 7 job, but somebody who does it multiple times a year. We 8 talk about the notion of currency, people who are current in 9 a procedure. You practice it routinely and you're up to 10 date in doing that procedure. It hasn't been five years 11 since you last did one. 12 Q You can't tell us exactly what labels need to be 13 applied in Florida because you just don't know, right? 14 A And further, when somebody goes through -- 15 Q Doctor, doctor? 16 MR. DUPREE: Objection, Your Honor. Let the 17 witness answer the question, please. 18 MR. NUNNELLEY: He needs to answer the question I 19 asked before he starts talking, Judge. 20 THE COURT: Go ahead and answer the question. 21 BY MR. NUNNELLEY: 22 Q You can't tell us exactly what criteria someone 23 would be required to meet in Florida to be authorized to 24 perform a cutdown procedure, can you? 25 A I cannot because they would have to go through a OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2653 1 credentialing process and that would vary from hospital to 2 hospital and credentialing board to credentialing board. 3 They would assess the person and make their professional 4 determination done by physicians and nurses as to whether 5 that person is competent or not. If you look at the 6 individual record of that person and look at letters from 7 their colleagues to make a determination as to whether 8 they're appropriate to do it. 9 Q What threshold level of medical education does one 10 have to have to be -- to even be considered to be 11 credentialed to perform a cutdown, Doctor Heath? 12 A In the State of Florida I do not know. 13 Q Thank you, sir. 14 Moving on to paragraph two on page one, which 15 defines the executioner. What do we need in your opinion to 16 add to that paragraph to make this execution procedure 17 suitable to you? 18 MR. DUPREE: Your Honor, I'm going to object. I 19 don't think it's relevant to it's suitable to him. 20 It's totally irrelevant as to what the State of Florida 21 should do. 22 THE COURT: Overrule the objection. If you think 23 you can answer the question, go ahead. 24 THE WITNESS: I'll try to answer the question by 25 saying that nobody who does not have experience in OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2654 1 injecting intravenous anesthetics for the purpose of 2 inducing anesthesia should be pushing on those 3 plungers. 4 BY MR. NUNNELLEY: 5 Q So, let me see if I can put that a little bit more 6 succinctly. The executioner needs to be an 7 anesthesiologists or certified nurse anesthetist is what 8 you're saying, isn't it? 9 A I didn't use either of those terms. 10 Q I know you didn't use either one of those terms 11 and I'm asking you to clarify by using those terms so answer 12 my question. 13 Does the person in your opinion to meet the 14 criteria that you think are necessary for a proper execution 15 by legal injection protocol, and you're qualified as an 16 expert in such matters, need to be a certified nurse 17 anesthetist or and anesthesiologist? 18 A The package insert for thiopental says this drug 19 should only be used by persons who are -- I forget the exact 20 wording but experienced in the administration of intravenous 21 anesthetics. That's what the FDA approved package insert 22 says. So the repertoire of people who are experienced in 23 the administration on intravenous anesthetics. Most of 24 those people are anesthesiologists or certified registered 25 nurse anesthetist but there are other people who are not OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2655 1 those things who administer intravenous anesthetics. 2 Q Who are they? 3 A For example, an anesthesiology resident. I was 4 training anesthesiology residents and they are not 5 anesthesiologist. They are anesthesiology residents. They 6 are learning how to administer intravenous anesthetics and 7 as part of that learning they do it. 8 They're doctors in intensive care units who 9 sometimes need to induce anesthesia because they have to put 10 a patient on a ventilator and they have to put a breathing 11 tube in. They will administer intravenous anesthetics. 12 There are psychiatrists who perform 13 electroconvulsive therapy. Patients need to be, that's when 14 they shock someone's brain to treat depression. You put 15 theme in a seizure using electrical shock. People need to 16 be under a general anesthesia for that and sometimes that is 17 administered by psychiatrists. 18 So, there is no strict, firm correlation 19 between the title of a person and whenever they can give 20 these drugs but there is a loose.one and you're right, the 21 majority of this people in this country who experience in 22 the administration of anesthetics would be anesthesiologists 23 and nurse anesthetist that would compromise I'm guessing 24 90 percent of those people. 25 Q Okay. Doctor, I'm showing you what's marked as OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2656 1 Defendant's Exhibit 18, is the package insert of what's been 2 represented to me as a eight and-a-half by eleven copy of 3 the package insert. Find in there for if you would where it 4 says that only persons experienced in the administration of 5 IV anesthetics should use the pentothal? 6 A It's right here on page two. It's written in bold 7 letters which is how the FDA have drug companies underscore 8 and important point in the text. And it says quote, "This 9 drug should be administered only by persons qualified in the 10 use of intravenous anesthetics." And that's the pentothal 11 package insert. 12 Q Of course, the pentothal presupposes the use of 13 pentothal. Sodium, Judge, sodium. 14 THE COURT: Thank you. 15 BY MR. NUNNELLEY: 16 Q -- in the context of surgery, doesn't it? 17 A It does not define the context there. It just 18 says only by persons experienced in the use of intravenous 19 anesthetics. It does not give any exceptions. 20 Q Well, Doctor, that presupposes that you want the 21 patient to wake up, doesn't it? 22 A It doesn't presuppose anything. It states clearly 23 what it states. These drugs should only be used by people 24 who are experienced in its use. 25 Q So, in other words, as far as you're concerned, it OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2657 1 doesn't matter whether in surgery where the object of the 2 use of sodium pentothal is anesthesia from which the patient 3 recovers and the different context of an execution where the 4 object is that the inmate die. You have see no difference 5 between the person who should be giving the drugs? 6 A There is a difference but in terms of whether they 7 need to be properly anesthetized, both the patient having 8 surgery and the prisoner who you're going to give potassium 9 to, this kind of concentrated potassium to needs to be 10 properly anesthetized. And pentothal is a very, the way 11 pentothal behaves in the body is very counter-intuitive and 12 complicated and it requires an understanding of that if one 13 is to be administering it for any purpose of anesthesia in 14 any context. 15 Q But Doctor Heath, the understanding of 16 counter-intuitive behavior that you allude to the pentothal, 17 also presupposes that you want the person to live, doesn't 18 it? 19 A It presupposes that you want the patient to be 20 anesthetized and alive. 21 Q Let me ask you this doctor and I know you've said 22 this before. I just want to hear you say it again. 23 Five grams of Sodium thiopental properly administered 24 through a working IV is lethal 100 percent of the time; 25 isn't it, Doctor Heath? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2658 1 A It gets into the circulation and is carried around 2 their body, it will be lethal in a human being 100 percent 3 of the time. 4 Q So, we're not really talking about the use of 5 five grams of sodium pentothal as being the problem in, that 6 you have perceived in Florida's procedures, are we? 7 A That's exactly right. 8 Q Your problem lies with the other parts of the 9 procedure, doesn't it? 10 A Ensuring that the thiopental has actually gotten 11 into the circulation and produced anesthesia and maintains 12 anesthesia throughout the time that the prisoner is being 13 exposed to pancuronium and potassium. That's my concern. 14 And Florida has failed to do that, failed to do that in the 15 Diaz execution. It was my concern before the Diaz execution 16 and my concern now. 17 MR. NUNNELLEY: Your Honor, I'm going to object 18 and move to strike the editorial comment. I've asked 19 this man no questions about Diaz. I'm talking about 20 the May 9 protocols. I haven't said thing at all about 21 Diaz and he is just volunteering information trying to 22 get in into the record. It's inappropriate and I would 23 ask the Court to direct him to answer my question and 24 not volunteer information on his own. 25 THE COURT: Okay. Go ahead. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2659 1 BY MR. NUNNELLEY: 2 Q Now, Doctor Heath, the fact of the matter is the 3 package insert states and you agree, don't you, the lethal 4 blood level may be as low as one milligram per 5 100 milliliters for sodium pentothal, doesn't it? 6 A I don't have that in front of me so I don't know. 7 Q Have you ever used -- 8 A That sounds plausible, yes. 9 Q You don't use pentothal in your practice, do you? 10 A I used it two weeks back. 11 Q You did? 12 A Yes. 13 Q Is it commonly used now? I thought it was falling 14 out of use. 15 A It definitely is falling out of use but I think 16 it's very important that anesthesiology residence understand 17 how to use all of the available induction agents and there 18 are a number of different drugs that are like thiopental 19 that are used, thiopental being one of them. So, I think 20 it's important that they have experience with all of them. 21 Q The most commonly used on now is propathal, isn't 22 it? 23 A That's correct. 24 Q And that could be extremely painful on initial 25 administration, can't it? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2660 1 A It can be, yes. 2 Q And you use propathal anyway despite its painful 3 characteristics? 4 A Yes. 5 Q Okay. You use IVs anyway despite their propensity 6 to fail, don't you? 7 A It's a possibly of failure. They have a 8 propensity to work but they sometimes do fail. That's why 9 we have to be very careful in how we use them. 10 Q But you use them anyway, don't you, sir? 11 A Yes, sir. 12 Q Let me get you to turn over to page two of Joint 13 Exhibit 2 up at the top paragraph three, selection of the 14 execution team. The first sentence reads, "The warden will 15 designate the members of the execution team and verify that 16 each member has the training and qualifications and 17 possesses the necessary licensure or certification required 18 to perform the responsibilities or duties specified." 19 What does the State of Florida need to change 20 about that sentence to make it in your expert opinion 21 acceptable? 22 A Right now it's a circular definition. It just 23 says to summarize or paraphrase, the people have to be 24 adequately qualified to do this. It doesn't define what 25 that is. That's no more acceptable in this context than it OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2661 1 is in any healthcare context. If you're health insurance 2 company said to you we'll pay for your insurance and when 3 you need surgery we'll just find an adequately qualified 4 person and you say is it going to be a surgeon and they'll 5 say we're not going to tell you that. You wouldn't enroll 6 in that health insurance company. And similarly, this does 7 not define what the licensure, credentialing etcetera is and 8 in fact, it appears to leave it up to the warden's 9 discretion what would be appropriate and we already know 10 that the warden who supervised the Diaz execution was 11 incapable of doing that properly. 12 Q Okay. That's good. Now, tell me what the 13 sentence needs to say so that in your expert opinion it will 14 be acceptable. 15 A Again, to answer that question I have to highlight 16 the tension here. It's my preference that healthcare 17 individuals not participate in executions. 18 If these drugs are to be used and if the 19 procedure's going to be humane then by necessity one would 20 have to have healthcare individuals, and if that were the 21 case for this sentence to work or to be acceptable, it would 22 have to define that the individuals are qualified and 23 licensed and credentialed currently to perform those 24 procedures in the State of Florida in a healthcare setting. 25 Q Okay. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2662 1 A For example, you would have to know that somebody 2 was qualified, credentialed and licensed to perform cutdowns 3 in a, currently in a healthcare setting in the State of 4 Florida. 5 Q All right. Let's break it down. We've got a 6 couple of IV issues going on here. We've got peripheral 7 access, actually three; peripheral access, central line 8 access or cutdown access, right? 9 A And there's overlap between those groups, just to 10 be clear. 11 Q I understand that there's an overlap between 12 whether a central line's whether the femoral vein is a 13 central line or not. I know there's some debate about that? 14 A And there's also other kinds of overlap just to be 15 clear. A peripheral IV can be put in by a cutdown or it can 16 be put in percutaneously. 17 Q That would be an example of that would be a 18 cutdown performed in the ankle? 19 A Correct, that would be, exactly, you got it. That 20 would a peripheral cutdown. 21 Q Those are very uncommonly done anymore in any 22 circumstances, aren't they? 23 A They're done in executions in the United States. 24 Q They are? 25 A For lethal injection, yes. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2663 1 Q They're not used in the hospital settings? 2 A Sometimes they are, yes. 3 Q Really? 4 A Yes. 5 Q They have a propensity for complications that are 6 not pertinent in a execution setting, right? 7 A You talking about ankle cutdowns? 8 Q Yeah. Or do you not know? 9 A I'm not sure what you're talking about. 10 Q Okay. That's fine. But let's go back to the 11 peripheral access. If Florida's going to go with the 12 peripheral line being started inside the elbow of the 13 antecubital fossa, do we need to say for example, in the 14 protocols to make them acceptable to you in your expert 15 opinion that the peripheral IVs in the antecubital fossa of 16 the prisoner's elbows will be started by someone possessing 17 paramedical or higher certification who is currently working 18 in the healthcare field. Would be that be an acceptable way 19 to say it? 20 MR. DUPREE: Your Honor, again, I have to object 21 because what his opinion as to what he says is totally 22 irrelevant. It's not what we're here for. 23 MR. NUNNELLEY: Judge, he's offered as an expert. 24 In lethal injection. 25 MR. DUPREE: But not to rewrite their protocols. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2664 1 THE COURT: Overrule the objection. You may 2 answer. 3 BY MR. NUNNELLEY: 4 Q Would that be an acceptable way to say it, Doctor 5 Heath? 6 A You're going to have problems with that so 7 therefore it's not acceptable. Sometimes the paramedic 8 won't be able to establish the IV access and that's -- I'm 9 going by what I know at other executions not in Florida, but 10 in other states, that the paramedic can't establish 11 peripheral IV access and then usually the doctor is called 12 in to try to establish peripheral IV access. 13 Q I'm taking it one step at a time. 14 A Okay. 15 Q For the peripheral IV access component of this, 16 would it be acceptable to you if we denominated that as 17 someone possessing paramedic or higher certification and 18 credentials who is currently practicing and all that good 19 stuff? 20 A Yeah, I think that's the general gist of what 21 would work, yes. 22 Q Okay. Now, we move to the femoral vein, the 23 central line, not central line sort of issue there. 24 What sort of person -- if we said that the 25 central line or femoral vein access shall be accomplished by OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2665 1 a person, either a physician or a physician's assistant, who 2 is current and practicing and is credentialed to establish 3 such femoral vein access. Would that be acceptable to you? 4 A In a healthcare institution in Florida to work 5 without supervision with a physician with themselves knows 6 how to do this and is credentialed to do it, then and they 7 don't have other background problems or other character 8 problems or other evidence of incompetent performance, then 9 that in general sounds sufficient, yes. 10 Q And for an actual cutdown I'm assuming we would 11 have to have a medical doctor who is credentialed in the 12 appropriate healthcare institutions to perform such a 13 procedure or perhaps a physician's assistant? 14 A Again, I don't know in Florida are physicians 15 assistants allowed to do this without the supervision of a 16 doctor who themselves know how to do it? I have just don't 17 know the answer to that. I'm sure everybody can find that 18 out and probably will go and do so. 19 But you're getting the general idea of what 20 is needed. Instead of some circular definition adequately 21 qualify, you're now talking specific levels of qualification 22 accompanied by documentation of credentialing, proficiency 23 currency, exactly the things that are done for anybody else 24 who puts in a central line in any other context I'm sure in 25 Florida. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2666 1 Q Okay. The next sentence, "The warden will ensure 2 that all members of the execution team and involved staff 3 had been adequately trained to perform their requisite 4 functions of the execution process." 5 Do you have any problems with that sentence? 6 A I'm sorry, could you just point to which paragraph 7 it is. 8 Q Page two, paragraph three, second sentence. 9 A Yes, as we discussed the warden does not 10 themselves have the qualifications or experience to make the 11 determination of who should be doing this. The warden who 12 supervised the Diaz execution evidently did not have the 13 qualifications to do that. He was given a job beyond his 14 level of experience. And I have seen no evidence that the 15 new warden who will be supervising, I'm sorry, I forget his 16 name, has any experience in evaluating, hiring, recruiting, 17 credentialing personnel for healthcare recitation to do 18 procedures. 19 Q So, how do we need to change that sentence to make 20 it acceptable to you as an expert in this field, sir? 21 A That's a good question. I don't know exactly how 22 healthcare works in the prison system in Florida. I would 23 imagine that there is somebody in the Department of 24 Corrections who has hired maybe you can tell me, a head of 25 their medical department, a medical branch and that probably OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2667 1 have a director. I would imagine that director then hires 2 or supervisors the hiring of physicians and other healthcare 3 personnel. So, that would be the process one would need to 4 go through to ensure that the person doing this would be a 5 appropriate. The warden's the wrong person to do that. I 6 assume the warden is not the person who decides, you know, 7 healthcare issues in the prison. 8 Q The third sentence same paragraph, "The identities 9 of the members of the execution team are strictly 10 confidential." 11 Is there any change that needs to be made to 12 that sentence? 13 A Well it's important to clarify that zone of 14 confidentiality. Obviously some people will have to know 15 the identities of those people. They're colleagues who are 16 with them in the chamber, the warden who selected them and 17 other people, person who cuts their payroll check etcetera, 18 etcetera. I see no reason why the public at large, if 19 that's what you're asking about, should know the identities 20 of, the naming and addresses of people who participate in 21 executions I see no gain in that. 22 Q You see no gain from the identities of the members 23 of execution team being made public. Is that what you're 24 saying? 25 A That's correct. There are obviously problems that OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2668 1 they could attend to that. 2 Q Okay. Subparagraph 3A on page two, security team 3 members. You don't comport to be an expert in prison 4 security issues; do you, sir? 5 A Definitely not. 6 Q Three B, technical team members. "The warden 7 shall select personnel to perform the technical procedures 8 necessary needed to carry out an execution by lethal 9 injection including the mixing of the chemicals and 10 placement of the intravenous access lines." 11 We've talked about what you think or what 12 your expert opinion is that with regard to the 13 qualifications of the people doing the IV lines. What 14 qualifications or what changes need to be made to this with 15 respect to the mixing of the drugs that are used in carrying 16 out an execution by lethal injection? 17 MR. DUPREE: Your Honor, again, I'm going to 18 object to this. We have asked many questions about who 19 the State has consulted with in order to make a 20 determination of whether or not the protocols were 21 good. Now, if they want to hire Doctor Heath and pay 22 him for his opinion, but otherwise his opinion is 23 totally irrelevant as to what changes need to be made 24 to Florida's protocol. I think it's inappropriate to 25 ask those questions to this particular witness its. We OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2669 1 have asked who they were consulting with, who they made 2 a determination of the protocols with. We have not 3 been able to find that out. 4 Now, we're in a situation where they're going to 5 sit here with this witness and ask him to rewrite their 6 protocols for them and I don't think that's -- I don't 7 think it's an appropriate question, Judge. 8 MR. NUNNELLEY: It's cross-examination, Your 9 Honor. He was -- 10 THE COURT: Overruled. You may answer the 11 question. 12 BY MR. NUNNELLEY: 13 Q What qualifications does the person mixing the 14 lethal drugs need to meet, Doctor Heath? 15 A They have to have been trained in the mixing of 16 thiopental, the type of people who are typically been 17 trained in the mixing of thiopental are the subset of people 18 who would be using thiopental in a clinical setting and 19 we've talked about who those people generally are. The 20 caveat being that thiopental is not very commonly used in a 21 clinical setting now. It's been supplanted by other 22 induction drugs like propathal. 23 Q So, again, maybe I'm doing the lawyer thing and 24 hanging up on labels but what are you saying, it need to be 25 a pharmacist or an anesthesiologist, right? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2670 1 A No, there are other people who would be qualified 2 to do it. 3 Q Such as? 4 A Just to clarify pharmacist and anesthesiologists 5 are certainly among the set of people who are competent to 6 do it. 7 Q Would a pharmacist be competent to mix the drugs 8 that are employed in Florida lethal injection protocol? 9 A I would have said so except that I heard a 10 pharmacist in California testify about the mixing of 11 thiopental. He had some critical errors in his testimony so 12 I'm just not sure how to answer that. Pharmacists, I don't 13 believe ever do mix thiopental or rarely, sorry, it's rare 14 that they mix thiopental and I do know of instances where 15 they have but it's rare. It's usually mixed up in the 16 operating room area. The pharmacy's usually in the 17 different area of the hospital. So, if it was a pharmacist 18 it would be one that knows how to do it. 19 Q Doctor Heath, I'm not sure I understand your 20 answer about who is able to mix thiopental or sodium? 21 MR. DUPREE: Judge? 22 MR. NUNNELLEY: I'm sorry, I'll try -- I'm trying. 23 BY MR. NUNNELLEY: 24 Q Is a pharmacist capable of reading the package 25 insert and mixing the drug, the sodium thiopental drugs, up OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2671 1 to the criteria set out in the execution protocol, "yes" or 2 "no"? 3 A I would say most pharmacists probably are but I 4 have to underscore that the way people learn, the majority 5 of people learn how to mix thiopental is being taught in the 6 operating room by a anesthesiologist or by a nurse 7 anesthetist. So, a pharmacist never having seen thiopental 8 before, most pharmacists probably haven't at this point and 9 mix it, would not be a right person de novo to do that. 10 They should be shown because when one mixes thiopental some 11 odd things can happen and the package talks a little bit 12 about that. About it not mixing properly, about there being 13 particulate material or how to recognize that and what to 14 do. One has to know when it normally looks like if it's 15 been mixed. If you've never mixed something before, you 16 don't know what it normally looks like. Therefore, you 17 couldn't identify if it was abnormal. 18 Q These corners are ones that would be known to a 19 pharmacist who has gone to five years of college or more to 20 learn how to be a pharmacist, wouldn't they? 21 A Again, I would have thought that but I heard a 22 pharmacist testify in California and said things that were 23 not true about the mixing of thiopental and that brought 24 home to me or made me realize well, of course, is 25 pharmacists hardly ever would have an occasion to mix OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2672 1 thiopental and so there are nuances to it that they would 2 not have been exposed to including the recognition of batch 3 of thiopental that should not be used. 4 Q So what you're saying really is, that an 5 anesthesiologist or a nurse anesthetist would be the person 6 to mix thiopental. Is that what you're saying? 7 A Those are the people who would most likely to be 8 best experienced. I would have to guess at 99 percent of 9 the thiopental that's been ever mixed up in this country was 10 mixed up by anesthesiologist or nurse anesthetist. That 11 would be my guess. 12 Q But you don't know that? 13 A No. 14 Q When potassium at the concentration and dosage 15 used in a Florida execution is injected intravenously into 16 the condemned, when the potassium chloride reaches the 17 inmate's heart, the heart stops, doesn't it? It goes in 18 asystole? 19 A You know, that's a really interesting question 20 because there are two parts of the heart. There's the left 21 side of the heart and the right side of the heart. And I do 22 not know so when the blood flows up the veins it goes to the 23 right side of the heart. That's the side of the heart that 24 pumps blood to the lungs where the blood picks up oxygen, 25 dark blue blood because it has no oxygen in it. I do not OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2673 1 know whether the potassium stops the heart when that gets 2 into that side of the heart or whether it travels through 3 the lungs into the left side of the heart and from there 4 it's pumped into the coronary arteries. The arteries that 5 actually supply the muscle of the heart and stops the heart 6 at that point. I have asked a number of cardiac 7 electrophysiologists and cardiac surgeons and I've talked 8 about this with people and we don't know the answer to this 9 question. So for me to say it stops it when it reaches the 10 heart, could potentially be misleading or wrong. It's more 11 complicated than a simple answer one would afford. 12 Q It doesn't cause the heart to go into one of the 13 cardiac, or rather heart attack-type rhythms, does it? 14 A Well, it causes a number of different rhythms 15 ventricular fibrillation which is a rhythm problem that 16 occurs in heart attacks. It can cause severe bradycardia, a 17 very severe slowing of the heart, asystole which is stoppage 18 of the heart. Those rhythms which occur in heart attacks. 19 I think actually your answer, I would have to 20 negate your proposition. The rhythm that are seen with 21 potassium are seen with heart attacks. 22 Q And you have reviewed EKG tapes from executions? 23 A Yes, many. 24 Q Do you have those with you? 25 A I do not. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2674 1 Q Can you provide them to us, Doctor Heath? 2 A In some cases -- well, there are evidence very 3 often under seal in other proceedings and so I do not know 4 what the legal mechanics would be of having information 5 that's under seal in one jurisdiction or state be brought 6 here. I don't know. I don't know, the answer is I don't 7 know if I could do that. I think that will be a lawyer to 8 lawyer and judge to judge kind of thing, so. 9 MR. NUNNELLEY: Judge, I would ask that the 10 witness be directed to provide those documents to us 11 that he just testified that he has relied upon in 12 answering my questions here today. 13 MR. DUPREE: Your Honor, I don't know how they 14 would be relevant to Florida's execution process which 15 there is no paper readout, number one. Number two, 16 he's already indicated this is something that's 17 happened in other jurisdictions, so we don't even know 18 if it would be legal for him to do so. If he wants to 19 do that I think what Mr. Nunnelley needs to do is 20 contact those individual State Attorney, US Attorneys, 21 whoever and see if it's legal. 22 MR. NUNNELLEY: No, Judge. 23 THE COURT: Do you have the material and could you 24 provide it? 25 THE WITNESS: I have all the EKGs that I've been OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2675 1 begin. The EKG tracing in my possession, it represents 2 boxes of material because some of these tracings are 3 many tens of feet long and what I have actually is 4 copies Xerox copies of the tracings. 5 THE COURT: Well, I assume these are not the 6 patients you're treating and public records that you 7 obtained from somewhere. 8 MR. NUNNELLEY: I don't know, Your Honor. This is 9 the first I've heard about this. 10 I asked him what rhythm does the heart go into 11 when potassium chloride at lethal injection quantities 12 is injected. He gave me an answer that is directly 13 based upon EKG tracings or tapes from other 14 jurisdictions that he has looked at and upon which he 15 has relied in giving his testimony today. For the 16 record, Doctor Heath's not in agreement with me. If 17 he's going to rely on that information, I'm entitled to 18 see it. 19 THE COURT: If he's got it. It doesn't sound to 20 me like doctor -- if he doesn't make the objection I 21 guess I'll -- 22 MR. DUPREE: Well, Your Honor, here's the problem. 23 Like I said, we already objected on two grounds. 24 There's also a burdensome. He's already indicated 25 these are several boxes of material. I mean, who's OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2676 1 going to pay the cost of it, is the State going to pay 2 for that, so it takes his time to do this of Xeroxing 3 of it. 4 MR. NUNNELLEY: Well, Judge, we asked repeatedly 5 for -- I'll withdraw that. I'm not going to pay for 6 it. He relied on it, I'm entitled to see it. 7 THE COURT: I guess this would be like other types 8 of discovery. You get it you got to pay for it. 9 MR. DUPREE: I'm sorry, Judge, I didn't hear you. 10 THE COURT: I guess like with other types of 11 discovery that I'm familiar with, if you get it you 12 have to pay for it. So, I guess I'll overrule the 13 objection to the extent that it's obtainable and 14 burdensome. We could deal with it later, I guess. I 15 mean not right now, maybe you could get it later. 16 MR. NUNNELLEY: You could make arrangements with 17 us after you're off the stand this evening to, about 18 how we're going to deal with this. 19 THE COURT: To the extent that it's, you know, not 20 overly burdensome. I guess, you could talk to his 21 lawyers later about these type of problems but I would 22 say overrule the objection. You can have the material. 23 MR. NUNNELLEY: Very wood, Your Honor. 24 THE WITNESS: Sir, there's something I do need to 25 clarify I mentioned it once but in many instances the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2677 1 material is under seal and I signed a court document, 2 I'm not sure what it would be called, where I affirm 3 that I will not reveal any information that I've been 4 provided that it's under seal to anybody else. 5 MR. NUNNELLEY: But you've already -- Your Honor, 6 that's the problem. He just revealed it. If he signed 7 a confidentiality agreement, he just breached it with 8 his testimony. 9 THE COURT: You could discuss it with your 10 attorney later. If it's any problems that present, you 11 can discuss with him and raise it later. Generally you 12 can obtain the information. 13 MR. NUNNELLEY: Judge -- Doctor Heath, Your Honor, 14 I would ask the Court to enter an order directing him 15 to produce to me those documents that he has relied 16 upon in, the EKG strips that he has relied upon. I 17 will deal with him later about which of those documents 18 I really want and how I can narrow down what he 19 produces to avoid it being unnecessarily burdensome. I 20 don't want 20 feet worth of EKG tape on every inmate 21 that he's ever looked at but he's talked about it in 22 open court and Judge he just breached any 23 confidentiality agreements he signed are breached right 24 now when he relied upon it in testifying here. 25 MR. DUPREE: That's ridiculous. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2678 1 THE COURT: I'll grant the motion and you can 2 diesel with any problems later that it may present. 3 MR. NUNNELLEY: Thank you, Your Honor. 4 THE COURT: Okay. 5 BY MR. NUNNELLEY: 6 Q Now, Doctor Heath, bradycardia is slowing of the 7 heart, isn't it? 8 A Yes. 9 Q Slowing of the heart rate. And that eliminates 10 profusion to the brain, doesn't it? 11 A No, it does not. 12 Q It doesn't? 13 A No. 14 Q When the heart slows its beating and stop beating, 15 it does not stop profusing blood? 16 A It's a complex question when you asked when it 17 slows and when it stops. When it slows it continues to pump 18 blood. When it stops then it stops pumping blood. 19 Bradycardia is not the same thing as the stopping of the 20 heart. 21 Q Does? 22 A Excuse me, if I could finish. Bradycardia is a 23 slowing of the heartbeat asystole is a absence of a 24 heartbeat. 25 Q And asystole is what potassium chloride causes, OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2679 1 isn't it, Doctor Heath? 2 A It is ultimately what I see from the EKG that I've 3 reviewed, some of which are under seal, some of which are 4 not under seal all of which inform my opinion, is that a 5 series of different rhythms can be seen prior to the 6 achievement of asystole. 7 Q You signed an affidavit in Georgia in which you 8 opined that two grams of thiopental properly administered 9 into the venous system through a working IV is lethal, 10 didn't you, doctor? 11 A If you could show me the affidavit then I could 12 tell you yes or no. 13 Q Do you agree or disagree with the proposition that 14 two grams of sodium thiopental properly administered in the 15 circulatory system through a working IV is lethal? 16 A No resuscitation attempts are made, yes, that 17 would be lethal. 18 Q The fact of matter is, sodium thiopental, sodium 19 is as goes good as any other drug for lethal injection, 20 isn't it, Doctor Heath? 21 MR. DUPREE: I'm going to object to speculation, 22 Judge. Ask him to rephrase the question, please. 23 MR. NUNNELLEY: It's cross-examination, Judge. 24 THE COURT: Restate it again. 25 BY MR. NUNNELLEY: OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2680 1 Q I'll put it this way. Doctor, you've testified, 2 haven't you, that sodium thiopental is as good a drug as any 3 to be used in lethal injection execution, haven't you? 4 A I don't recall saying that. 5 Q Do you recall testifying in Morales? 6 A I do recall testifying in Morales, yes. 7 Q The respiratory collapse is the cause of death in 8 a barbiturate overdose, isn't it? 9 MR. NUNNELLEY: Objection, Your Honor. I didn't 10 hear the question it was so fast. 11 BY MR. NUNNELLEY: 12 Q Respiratory collapse is the cause of death in a 13 barbituratal overdose case, isn't it? 14 A I think it would depend on the dose of thiopental 15 that were given. Because if it were -- 16 MR. NUNNELLEY: May approach the witness, Your 17 Honor? 18 THE COURT: Sure. 19 BY MR. NUNNELLEY: 20 Q I'm showing you page 545 in -- 21 MR. DUPREE: Can I see it, please. 22 MR. NUNNELLEY: Oh, I'm sorry, I thought you 23 already had this. Here at the bottom. 24 BY MR. NUNNELLEY: 25 Q You testified, I believe, in front of Judge Jeremy OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2681 1 Fogel who is a United States District Judge in the San Jose' 2 Division of the District of California in the case of 3 Michael Morales versus Tilton, et al, which is a Federal 4 proceeding, didn't you? 5 A Yes, I did. 6 Q I'm showing you page 545 of your testimony where 7 you're under questioning by the court. Read that page and 8 it over to the next if you would, sir? 9 A Would you mind if I read the prior page so I can 10 know what the context is. 11 Q You can read whatever of the transcript you want 12 to be satisfied and comfortable in answering my questions 13 about it, sir? 14 A Okay, thank you. (The witness complied.) 15 Q Doctor Heath, you testified in the Morales case, 16 did you not, I guess I may be paraphrasing what you said. 17 You essentially said that sodium thiopental is as good a 18 drug as any? 19 A Can you show me where those words were stated 20 because I'm not seeing them. 21 Q Question by the court, "Are there other 22 barbiturates that would cause death faster than thiopental?" 23 And what was your answer, sir? 24 A I said I don't believe so. I don't say I think 25 it's as good a drug as any. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2682 1 Q I'm asking you what your answer was, Doctor Heath? 2 MR. DUPREE: Objection, Your Honor. That's not 3 the question he asked him. 4 THE COURT: Ask him a new question. 5 BY MR. NUNNELLEY: 6 Q Read your answer to the court's question, Doctor 7 Heath? 8 MR. DUPREE: Objection. Your Honor, this is 9 improper impeachment. That's not the question that 10 Mr. Nunnelley asked him. 11 THE COURT: Overruled. You can go ahead and read 12 the answer. 13 THE WITNESS: I'm looking for where it says 14 thiopental as good as any drugs and I see your words on 15 here but I don't see me saying that. I see myself 16 being -- saying the question is again from Judge Fogel, 17 "Are there any other barbiturates that would cause 18 death faster than thiopental?" And my answer according 19 to this was, "I don't believe so. I believe the 20 mechanism of death when you give an animal thiopental, 21 the mechanism of death is from the lack of breathing 22 and in at great majority of cases. Again, looking at 23 the EKG records, I see some where I think there's a 24 collapse from the pentothal. That's the unusual 25 result." OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2683 1 THE COURT: Collapse of what? 2 THE WITNESS: Collapse -- where there's collapse 3 from the pentothal. I would be referring to collapse 4 of the circulation, that it would stop the circulation 5 from the pentothal but as I said, that's the unusual 6 result. I don't see anything where I say -- 7 MR. NUNNELLEY: Thank you, doctor. You answered 8 my question. 9 THE WITNESS: -- pentothal would be. 10 THE COURT: That's all. That's good enough. 11 MR. NUNNELLEY: Thank you. 12 THE WITNESS: Can I get some more water, please? 13 THE COURT: Sure. 14 BY MR. NUNNELLEY: 15 Q Doctor Heath, let me ask you this. Going back to 16 your EKG strips that you've talked about, several of which 17 are sealed, some of which are not, in how many of these EKG 18 strips have you actually seen bradycardia? 19 A I can't give you have the number off the top of my 20 head, but many of them one sees bradycardia at some point 21 during the progression towards cessation of electrical 22 activity. 23 Q More than half of them? 24 A I wouldn't try to give you a number now, but I 25 would say more than a third and maybe two thirds. I just OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2684 1 don't know. I'm giving a very broad estimate. It's a 2 common thing to see, let's put it that way. 3 Q And do you believe that the bradycardia that 4 you've observed in these EKG strips is caused by the 5 injection of potassium chloride; is that correct? 6 A Yes. 7 Q How long did the bradycardia last before it turned 8 into ventricular fibrillation or asystole? 9 A It varies from procedure to procedure but 10 generally, it's a very rapid progression from whatever 11 rhythm, from what the heart was doing before the potassium 12 went in to progression into a rhythm like asystole and 13 ventricular fibrillation to where there's no pumping of the 14 heart, no pumping of blood. 15 Q Let me get you to quantify the time for us, if you 16 could. Are we talking about a matter of seconds, 15 17 seconds, 30 seconds, what are we talking about? 18 A It's in the timeframe of a minute. You go from 19 seeing the heart doing what it's been doing from before the 20 penithol went in. When the pancuronium goes in the rhythm 21 doesn't look very different and then you start to see after 22 the potassium goes in dramatic changes in the EKG and those 23 changes rapidly progress and within a minute into a very 24 what we would call in the healthcare end a very bad rhythm 25 where there's cardiac collapse or circulatory collapse. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2685 1 Q So, you can't give me a hard time or how long the 2 bradycardia lasts before turning into ventricular 3 fibrillation or how long? 4 A It varies from person to person like how long a 5 person takes to eat lunch. 6 Q Can you give my a range of times, Doctor Heath? 7 A Let me clarify something else. We don't know 8 exactly when the potassium hits the heart. We know in many 9 executions when it was injected but again, there's that 10 travel time up the vein and into the heart. So, I can't 11 tell you exactly how long it takes from when it hits the 12 heart to when it starts -- to when it completes the 13 circulatory collapse. It's an approximation here. 14 Q I understand. 15 A What I can tell is when the rhythm starts to 16 change and when it starts to change it generally progresses 17 very rapidly and within a minute at most in a great majority 18 of cases it gets degraded and degenerated where you have no 19 pumping of blood. 20 Q Which would be asystole? 21 A Or ventricular fibrillation or other some severity 22 abnormal rhythm. 23 Q And doctor, let me ask you this. You have no way 24 of knowing whether bradycardia is caused by the potassium 25 chloride or if it's caused because the Defendant is going to OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2686 1 hypoxic because his breathing has stopped, do you? 2 A That would be incorrect. 3 Q It would? Why don't you explain that for us, sir. 4 A Yes. The kind of rhythm problems that one sees 5 when one stops breathing are different from what sees with 6 the heart being stopped by potassium. When somebody's 7 breathing stops, the level of oxygen in their blood 8 gradually declines, it ramps down over a period of minutes. 9 The level of acid in their blood gradually increases over 10 time and as those gradual changes ensue, the heart starts to 11 be irritated or bothered by them and one starts to see 12 increasing frequency in abnormal rhythms or heartbeats or 13 cardiac electrical circles. 14 So, that's very different from what's being 15 see with potassium where things are essentially normal and 16 then very suddenly, like I say within a minute, degrade into 17 a completely bad rhythm where there's no blood being pumped. 18 That's different from what one sees when a patient is not 19 oxygenated or ventilated. 20 Q Doctor Heath, I'm showing you what's in evidence 21 as Joint Exhibit 4? 22 MR. DUPREE: Can I see what it is, please. 23 MR. NUNNELLEY: Oh, I'm sorry. It's the findings 24 and recommendations of Governor's Commission on the 25 Administration of Lethal Injection. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2687 1 You sure you got a copy of it? 2 MR. DUPREE: I believe I do. 3 MR. NUNNELLEY: Judge, you got a copy of it? 4 THE COURT: Yes, sir. 5 BY MR. NUNNELLEY: 6 Q Directing your attention, Doctor Heath, to page -- 7 A I don't have a copy of it. 8 Q Now you do. 9 A Okay. Thank you. 10 Q Directing your attention to page eight, findings 11 and recommendations. You went through, I believe, seven of 12 the findings and recommendations made by the Governor's 13 Commission. Do you recall that testimony? 14 A Yes, I do. 15 Q There are two other findings and recommendations 16 or rather findings that you didn't talk about, aren't there? 17 A I wasn't asked questions about those but I would 18 have been happy to do so. 19 Q The Commission pointed out that there were two 20 unresolved conflicts that they couldn't answer, didn't they? 21 A Actually, it said that there were unresolved 22 conflicts and there are examples of them are that as 23 follows. 24 Q And they pointed out two of them, didn't they? 25 A That's correct. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2688 1 Q Why don't you read those unresolved conflicts that 2 they identified, sir. 3 A Yes. They're on page eight right in the middle of 4 the page. The first one it says quote, "Observations of the 5 inmate during the execution process including movement of 6 the body, facial movements and verbal comments." 7 And then it says for number two, "Conflicting 8 testimony of the expert medical witnesses regarding the 9 impact of the drugs absorption of drugs, etcetera." 10 Q Thank you, sir. 11 Now, all of the testimony, much of the 12 testimony in the lethal injection Commission, I'll take this 13 back, sir, has been and was that Inmate Diaz was moving, 14 mouthing words, attempting to breathe, chest observed rising 15 and falling. So, I guess that really is breathing rather 16 than attempting to breathe, for some period of time into the 17 execution. That's correct, isn't it? 18 A Well, I heard the person, many people testified 19 exactly that. I heard a person when I was present at the 20 hearing where I attended somebody who was an employee of the 21 Department of Corrections saying that they didn't see 22 anything abnormal, just that it took longer. And so I would 23 think that talking and all those other things that you 24 described would be abnormal in an execution, so that would 25 be a conflict there in terms of what people saw. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2689 1 Q Well, if the witnesses in the witness room 2 observed Mr. Diaz, observed his chest rising and falling as 3 our bodies do when we breathe, that would be inconsistent 4 with Mr. Diaz being paralyzed from the pancuronium, wouldn't 5 it? 6 A It would be inconsistent with being completely 7 paralyzed but it would not be inconsistent with being 8 partially paralyzed. A partially paralyzed person will 9 still be able to move their chest and be able to breathe, 10 just not adequately. 11 Q Turning his head and mouthing words would be 12 inconsistent with being effectively paralyzed by pancuronium 13 bromide, wouldn't it, Doctor Heath? 14 A I'm going to use the term fully paralyzed or 15 partially paralyzed. And a fully paralyzed person would not 16 be able to turn their head or mouth words even though they 17 might be wanting to and trying to, but a partially paralyzed 18 person depending on the degree of partial paralysis would be 19 able to. 20 Q Are you aware of whether Mr. Diaz voiced any 21 expression of discomfort during the execution? 22 A I did not. I have not seen testimony that he said 23 anything like I'm in pain or anything like that. 24 Q Nothing to indicate that Mr. Diaz said something 25 to the effect of I can't breathe, is there? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2690 1 A No, but in order to be able to say something like 2 that when one really can't breathe is a little bit of a 3 problem because you need to be able to breath to say it. 4 Q If his chest is rising and falling he is at least 5 having some effective air exchange, isn't he, Doctor Heath? 6 A No, that's false. 7 Q Why don't you straighten me out. 8 A I'll try. A person who's making chest movements 9 that look like breathing if their airway is obstructed, they 10 may well not be moving any air in and out at all. 11 Q That would be in the context of an obstructed 12 trachea from a foreign object most likely, wouldn't it, 13 Doctor Heath? 14 A No, that's completely wrong. Probably the most 15 common cause of that is what we call sleep apnea. It's a 16 condition where an otherwise normal people fall asleep their 17 tongues fall into the back of the mouth and when they try to 18 breathe it, when their body tries to breath in while they're 19 sleeping, no air gets pulled in. So, the chest moves but 20 there's absolutely no breathing occurring. That's why sleep 21 apnea's a problem that requires medical attention. 22 Q Of course, if Mr. Diaz was snoring then he is, in 23 fact, having effective air exchanged, isn't he, Doctor 24 Heath? 25 A If he's snoring then there definitely has to be OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2691 1 some air exchanged. I don't know what you mean by 2 effective, but if you mean adequate then that would be 3 wrong. Snoring does not mean that you're having adequate 4 air exchange. We know from sleep apnea studies, we know 5 that people who are snoring very often are not getting 6 adequate air exchange when they're snoring like that and 7 that's why it has to be corrected. 8 Q But to be snoring you've got to be breathing, 9 don't you, doctor? 10 A There has to be some breathing but it may not be 11 adequate breathing. It may be only a tenth of the breathing 12 that is needed to remain comfortable and to not be running 13 out of breath. 14 Q You agree with Doctor Derschowitz's testimony that 15 five grams of thiopental delivered through a properly 16 functioning IV is fatal, don't you, sir? 17 A If it enters the circulation and distributed to 18 the circulation it's guaranteed to be fatal. Yes, I 19 completely agree with him. 20 Q Doctor, no protocol's ever foolproof, is it? 21 A I don't believe any complex human endeavor is 22 foolproof. 23 Q There's also the possibility of and error, isn't 24 there? 25 A Yes, that's why we have to take all steps that we OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2692 1 can to try to prevent, foresee and prevent errors. 2 Q And I'm sure that you as a doctor do that, don't 3 you, sir? 4 A I try to. But I don't always succeed at it. 5 Q It's not uncommon for doctors to make mistakes 6 such as not giving drugs in the proper order, is it? 7 A That's correct. I've made that mistake myself. 8 Q Hospitals, in the hospital setting it's not at all 9 uncommon to have problems with IV lines, is it? 10 A That's quite correct. 11 Q Now, doctor let me ask you this. How would you 12 suggest that Florida Department of Corrections determine 13 whether or not the inmate is fully unconscious after he has 14 received five grams of sodium pentothal before we proceed 15 with the next steps in the execution process. 16 MR. DUPREE: Again, Your Honor, same objection. 17 THE COURT: You may answer, overrule. Go ahead. 18 MR. NUNNELLEY: Expert. 19 BY MR. NUNNELLEY: 20 Q If shaking him and calling his name is not good 21 enough, doctor, what should they do? 22 A I'm going to draw the line here. I was willing to 23 discuss issues of how, what personnel would be qualified to 24 do various procedures whether in an execution context or 25 not. But now you're asking me to define how anesthetic OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2693 1 depth should be assessed in an execution. The assessment of 2 anesthetic depth is a medical procedure and so that would be 3 straining too far into an area of medical ethics that I 4 wouldn't be comfortable with. 5 MR. NUNNELLEY: Judge, I'm going to ask the Court 6 to direct the witness to answer the question. 7 THE COURT: Strike lethal execution. How are you 8 going to assess consciousness if you don't shake him? 9 Why can't you ask him that? 10 BY MR. NUNNELLEY: 11 Q In other than shaking the Defendant, the inmate 12 and calling his name, how else can his consciousness be 13 assessed? 14 A Well, again, you're still clearly asking this in a 15 execution context. You're asking me to say, to dictate how 16 the medical procedure should be performed, the procedure of 17 assessing anesthetic depth, how that should be performed in 18 an execution. That would be a violation of my professional 19 medical ethics. It would be a violation of American Society 20 Anesthesiologist Ethics about physician participation in, 21 anesthesiologist participation in executions. 22 MR. NUNNELLEY: Judge, I'm going to ask again this 23 witness be directed to answer the question. He was 24 offered as an expert in lethal injection procedures. 25 If he is going to testify and his testimony is OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2694 1 going to be considered in that regard, and if he is 2 going to go through line by line and pick apart the 3 Department of Corrections lethal injection procedures, 4 I am entitled to ask him in his expert opinion what 5 needs to be done to correct the deficiencies he has 6 identified. And I would suggest that he can either 7 tell us on the record how to identify those 8 deficiencies, or all of his testimony regarding his 9 perceived deficiencies with the lethal injection 10 procedures should be stricken and not considered. 11 He can either answer the question or the testimony 12 about the procedures should be stricken. He can't have 13 it both ways. He can't come in here wearing the 14 manille of an expert and go through all of these things 15 and then when we ask him, okay, you're the expert 16 what's wrong with it, how do we fix it, use medical 17 ethics as a sword to hide behind. Judge, that's 18 improper. Either he can be directed to answer the 19 question or strike his testimony. 20 MR. HOOKER: Judge, what -- 21 THE COURT: I think we do have a problem here. We 22 don't have to ask him how to fix the protocols, but we 23 can ask him how do you assess consciousness. Why can't 24 he answer that? 25 MR. HOOKER: Judge, can I say one thing? It seems OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2695 1 like to me he is admitting bias to the point that his 2 testimony might not be -- to the point that you might 3 not should consider his testimony. I mean, listen to 4 the essence of what he's saying. 5 BY MR. NUNNELLEY: 6 Q Doctor Heath, let me ask it this way. 7 How do you assess the level of consciousness? 8 A In what setting? 9 Q In an execution? 10 A I don't participate in executions and I don't 11 assess levels of consciousness in executions. 12 Q How would one go about doing that or how could one 13 go about doing that, I'll put it that way. 14 A Again, you're now asking, you're substituting 15 assessing the level of consciousness for assessing 16 anesthetic depth because as I've testified, they need to be 17 in a surgical plane of anesthesia if ones going to 18 administer concentrated levels of potassium and I can't -- 19 it would be in violation of the principals of the American 20 Society of Anesthesiologists, of which I'm a member and the 21 American Medical Association, which I'm member, for me to do 22 that. 23 I can point out problems to you but in terms 24 of pointing out what the fix is for medical procedures, 25 that's something that would be unethical for a physician to OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2696 1 do according to those guidelines. 2 MR. NUNNELLEY: Judge I'm going to ask the Court 3 to strike his testimony concerning the procedures and 4 not consider it as evidence. The bias is absolutely 5 overwhelming. If he won't answer the question, then 6 I'm being preclude by this witness's own actions from 7 effectively cross-examining him. The State is being 8 prejudiced and the remedy is to strike the testimony 9 about the procedures. If I can't go through and ask 10 him how to fix these things that he has identified as 11 being problems and if he is going to say oh, well, this 12 is the problem but it would be unethical to tell you 13 what's wrong with it, I can't cross-examine him. 14 MR. DUPREE: Well, Your Honor, because somebody 15 has an ethical problem with telling him now to do a 16 judicial execution does not mean he cannot be 17 effectively cross-examined. 18 His ethics preclude him from doing that because 19 there might be repercussions in regard to his license 20 if that happens. That's a different situation than him 21 refusing to answer a question. If he asked the 22 question a different way, but he doesn't have to ask it 23 the context of judicial executions -- 24 MR. HOOKER: He was qualified as an expert in 25 judicial executions. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2697 1 MR. DUPREE: Excuse me, excuse me, can I please 2 finish? 3 MR. HOOKER: Yeah. 4 MR. NUNNELLEY: Judge, he's qualified as an expert 5 and if you're in for a penny, you're in for a pound. 6 He can't answer -- he can't answer the questions he 7 wants to answer and not answer the questions he 8 doesn't. And that's what's going on here. 9 MR. DUPREE: Your Honor, that's not what's going 10 on here. 11 MR. NUNNELLEY: That's exactly what's happening, 12 Your Honor. The minute I asked ask him about the point 13 where the rubber meets the road this man says oh, my 14 ethics preclude me from answering that, but he's more 15 than willing to go through and identify all the 16 problems with it, but he's absolutely unwilling to 17 identify any solutions and I would suggest it's because 18 he doesn't have any. 19 MR. DUPREE: Your Honor, I would -- 20 THE COURT: The witness hasn't answered. 21 MR. DUPREE: Can I -- I just need to object. Your 22 Honor, first of all this is beyond ed scope of direct 23 examination. When I asked him it was in the context of 24 his clinical setting what he would do in terms of the 25 depth of anesthesia, not what he would do in a judicial OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2698 1 execution, so it's beyond the scope, number one. 2 Number two, the fact that he won't answer a question 3 with regard to how to better write protocols, which is 4 exactly what the State is asking him to do, which 5 violates his code of medical ethics is irrelevant, and 6 I've been saying that, Judge, it's irrelevant to what 7 his opinion is as to how the State can effectively 8 write protocols. 9 That's not why we called him. We called him 10 because he points out the problems with the protocols 11 and what they're doing wrong in terms of monitoring the 12 depth of the anesthesia and all of the myriad problems 13 that we're claiming that the State has in regard to 14 judicial executions. But it's beyond the scope of 15 direct, Judge. I didn't ask him in terms of judicial 16 executions. 17 MR. HOOKER: Judge, he was qualified as a lethal 18 injection expert and testified at length about the 19 protocols. How in the world can they say it is beyond 20 the scope of direct? That is simply not accurate. 21 THE COURT: Want it give the witness a chance to 22 answer again? 23 BY MR. NUNNELLEY: 24 Q Changed your mind, are you going to answer my 25 question, doctor? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2699 1 THE COURT: Clarify -- 2 THE WITNESS: If I could, maybe it would be 3 helpful to everybody in the courtroom to explain what 4 I've said in other cases when this kind of issue comes 5 up, which is that for veterinary euthanasia the tests 6 for assessing a surgical plane of anesthesia are 7 defined by American Veterinary Association. They list 8 what those things would be. And I have no problem at 9 all with how veterinarian euthanasia is accomplished 10 with cats and dogs and other animals in this United 11 States. So, these tests, there are tests that can be 12 done and veterinarian euthanasia which is using lethal 13 injection and if the Florida Department of Corrections 14 were to do tests or to do their executions in a way 15 that complied with veterinary euthanasia then that 16 would address the issues. 17 MR. HOOKER: Judge, he's been talking about humans 18 for three hours on direct -- 19 MR. NUNNELLEY: Hold on, hold on. 20 MR. HOOKER: -- now he wants to talk about dogs. 21 MR. NUNNELLEY: State's 6, AVMA report. 22 BY MR. NUNNELLEY: 23 Q Doctor Heath, I'm showing you what's in evidence 24 as State's Exhibit 6. Do you recognize that document? 25 A Yes, I do. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2700 1 Q What is it? 2 A It's a two-part document what you're giving me. 3 The main part of it is 2000, it says 2000 report of the AVMA 4 panel on euthanasia. The AVMA, the American Veterinary 5 Medical Association and every seven or ten years they 6 convene a panel of their experts to review how euthanasia 7 should and should not be done in the United States. 8 The other part of it what you're giving me is 9 a piece of paper that has no heading, no attributions, no 10 date, no anything on it with some words on it. 11 Q It's all in evidence, Doctor Heath, and you're 12 therefore to presume the authenticity of it. The AVMA panel 13 on euthanasia from the 2000 report has issued a cover 14 document that you have in front you, haven't they? 15 A This is not the exact document but it has probably 16 the proper text but I don't know that's for sure. That's 17 why I'm saying that. 18 Q Have you ever seen the cautionary statements that 19 are the first page of State's Exhibit 6, yes or no? 20 A I've not seen this piece of paper. What I've seen 21 is what they have online or I seen a thing with, you know, 22 header and date and that kind of information. So, I don't 23 know that this is the same words as what I've seen. That's 24 all I'm trying to say. 25 Q The AVMA has issued a statement that says, "The OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2701 1 guidelines in this report are in no way intended to be used 2 for human lethal injection." Haven't they, Doctor Heath? 3 A They absolutely have. 4 Q Thank you, sir? 5 A They're veterinarians. Of course, they're not for 6 human lethal injection. 7 Q They have also in those guidelines or in that 8 cautionary statement stated that, "The application of a 9 barbiturate, paralyzing agent and potassium chloride 10 delivered in separate syringes or stages (the common method 11 used for human lethal injection) is not sited in this 12 report." Haven't they, Doctor Heath? 13 A That's correct. This set of drugs is never used 14 or animal euthanasia and there's a good reason for it. 15 Q Thank you, Doctor Heath. You can save the 16 editorials for later. The third comment -- 17 MR. DUPREE: Your Honor, -- 18 THE COURT: Strike the remark. You didn't need to 19 make that remark. 20 BY MR. NUNNELLEY: 21 Q The third statement made by the AVMA panel on 22 euthanasia is that the report never mentions pancuronium 23 bromide or pavulon, the paralyzing agented used in human 24 lethal injection, doesn't it, Doctor Heath? 25 A It says that, but it's important to understand OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2702 1 that the report discusses at length the use of virtually 2 identical drugs. The drugs from that class of drugs that 3 pancuronium is in, neuromuscular blockers, and it discusses 4 the hazards and the risks that they posed to humane 5 euthanasia. You're right, it does not mention pancuronium 6 because like -- excuse me. 7 Q Oh, you need that still, I'm sorry? 8 A Yes, I do. 9 Like thiopental, pancuronium has largely 10 supplanted by other drugs so pentothal has been largely 11 supplanted by other drugs like propathal and pancuronium has 12 been supplanted by other paralyzing drugs. But it talks at 13 length about the use of paralyzing drugs in euthanasia and 14 especially underscores the hazards of their use. 15 Q And it talks about using paralyzing drugs that are 16 delivered in the same syringe as a barbiturate, doesn't it, 17 Doctor Heath? 18 A You're talking about the cover page or the inside? 19 Q The report, the report that you're familiar with. 20 A I would have to see it to see the exact wording of 21 what they're talking about. I don't think it uses the word 22 syringe or same syringe even. 23 Q (Handing.) 24 A I think I know what part you would be referring 25 to. You would be, I believe, referring to the bottom of OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2703 1 page 680. There's a single sentence that says, "A 2 combination of pentobarbital with a neuromuscular blocking 3 agent is not an acceptable euthanasia agent." 4 Q That refers to a combination that has both drugs 5 together, doesn't it, Doctor Heath? 6 A In this addendum, I'm not sure what that refers 7 to. It does not say in the same syringe. It just says a 8 combination of pentobarbital it doesn't say whether it means 9 combined in the same protocol or procedure or actually mixed 10 together in the same syringe. You can't really mix them 11 together in the same syringe, the thiopental will 12 precipitate. 13 Q But you're not a veterinarian? 14 A I'm not a veterinarian but I practice veterinary 15 euthanasia to animals and I have to be certified in that 16 kind of veterinary practice. I have to be familiar with 17 these kinds of guidelines in order to do that in doing 18 animal research. 19 Q So, let me see if I can sum this up. You disagree 20 with the disclaimers set out in the AVMA report, don't you? 21 A No, I agree with them. I agree that this report 22 was the not intended for use for human lethal injection. It 23 was intended for euthanasia of animals. 24 Q Okay. 25 A It's self evident being prepared by veterinarians OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2704 1 and all they talk about are animals. They don't talk about 2 humans. Obviously, vast amount of our medical knowledge is 3 founded upon our understanding of physiology gained from 4 animals and the main pertinent ways, the pharmacology and 5 behavior of these drugs in animals like dogs and cats will 6 be very similar to that in humans. 7 Q If the veterinarians say their report shouldn't be 8 used -- 9 A May I see this? 10 Q (Handing.) 11 A Just to clarify, they said they did not intended 12 to be used. They're talking about their intent, not what 13 should be done with it. And their intent clearly, I think 14 everybody would believe, was not to provide guidelines for 15 how to execute human beings. Their intent was to discuss 16 and opine about evolving standards for euthanizing animals 17 in a humane way and for discarding methods that they 18 realized were inhumane and for promoting methods that they 19 believe to be humane. That was their intent of this. It 20 was not to help out with human lethal injection. 21 However, there's a large amount of 22 information in here about how about the physiology and 23 pharmacology of euthanasia that any physician or 24 veterinarian would recognize to be applicable to humans. We 25 are animals, after all, as to any other kind of animal or OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2705 1 any other mammal. 2 Q Let me ask you this, Doctor Heath. If shaking a 3 person and calling their name is the wrong way to assess 4 consciousness in a lethal injection procedure, what is the 5 correct way? 6 THE COURT: You mind striking in a lethal 7 injection procedure? Could you just strike those words 8 and ask him the same question? Is there anything wrong 9 with that? 10 MR. NUNNELLEY: Doesn't really get to where I want 11 to go, Judge. 12 THE COURT: Try that one and see where we get. 13 BY MR. NUNNELLEY: 14 Q If shaking and yelling, shaking and calling an 15 individual's name is the wrong way to assess consciousness 16 or lack of response, let's replace that with lack of 17 responsiveness, what is the correct way to do it, Doctor 18 Heath? 19 A Depends if you're trying to provide anesthesia or 20 level of unconsciousness for some kind of painful 21 stimulation that's coming up. You need to tell me what that 22 stimulation is. Before we do surgery if I don't understand 23 what the surgeon's going to do, I ask him or her what are 24 you going to do and I get a sense from that of how much 25 that's going to hurt and I titrate my anesthetics to that. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2706 1 You got to tell me what they're going to do with the level 2 of pain. 3 MR. HOOKER: Deliver potassium chloride is what 4 they're going to do. 5 MR. DUPREE: Your Honor, I got an objection 6 yesterday because two of us objected. I object to 7 Mr. Hooker walking from the back of the courtroom 8 asking questions. 9 THE COURT: Okay. 10 MR. NUNNELLEY: We're done with that. Let me get 11 that back to the clerk. I've got another document for 12 you, sir. 13 THE WITNESS: If I try to help out here by 14 clarifying something which is that -- 15 MR. NUNNELLEY: Doctor Heath, there's not a 16 question on the floor. 17 THE COURT: You asked him a question and are you 18 withdrawing it or? 19 MR. NUNNELLEY: I didn't ask him a question about 20 the Veterinarian Medical Association report. He's been 21 flipping through that and fixing to start reading out 22 of it. I haven't asked him a question about the report 23 for a couple of minutes. I've got a another question 24 for him. 25 MR. DUPREE: I was asked about the potassium, what OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2707 1 would be necessary for potassium. 2 THE COURT: Wait a minute. Let's limit this to 3 one lawyer. We're getting confused here. 4 MR. NUNNELLEY: Confused myself. Now, we're done 5 with this exhibit, Doctor Heath. 6 Back to Joint 2 which is the May nine protocols. 7 BY MR. NUNNELLEY: 8 Q Turn over to page two heading four. That is 9 entitled training of the execution team and executioners. 10 What issues, if any, can you identify in 11 connection with the training that is set out in paragraph 12 four on page two? 13 A It's not described. It's a self referential or 14 circular definition. It says it will be sufficient. It 15 doesn't say what it is or how it should done, how often it 16 should be done. And I would just compare with other state's 17 protocols which delineates that in detail. 18 Q Give me an example of the detail that should be 19 used in your expert opinion, Doctor Heath? 20 A I am not a person who's ever trained the 21 Department of Corrections employees or execution teams so I 22 recommend conferring with your colleagues about what other 23 states have done. There are some states that have done, set 24 in place rather, detailed and extensive training regimens. 25 Q So, you're not qualified to opine on paragraph OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2708 1 four on page two; is that what you're saying? 2 A I'm not saying that. I can point out a deficiency 3 without knowing what the remedy of it is. A person can be 4 qualified to say that's not acceptable and yet not know what 5 the answer would be to make it acceptable. There's 6 penalogical considerations and I don't know what they are. 7 Q What kind of contingencies need to be specifically 8 addressed in training, Doctor Heath? 9 A If I could just add one more thing about that. It 10 wouldn't be at all possibly to tell you what kind of 11 training would be needed without knowing the backgrounds of 12 the people. So, there are some people who might be already 13 highly train and would need less training to some 14 individuals with virtually no training all and they would 15 need a lot. So, until you tell me who all's doing this, not 16 their identities, but what their backgrounds and experience 17 and licensure and credentialing are, I couldn't begin to 18 tell what you kind of training they would need. 19 Q What kind of contingencies need to be specifically 20 addressed, doctor? 21 A There are a myriad of things that can go wrong 22 when inducing anesthesia. 23 Q Give me a list. 24 A And there are many things that can go wrong during 25 lethal injection. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2709 1 Q Give me a list of problems of contingencies that 2 in your opinion need to be specifically addressed, Doctor 3 Heath. 4 A Off the top of my head, it won't be exhausted but 5 I can give you a number of things that would need to be 6 addressed. 7 Q For example. 8 A For example, you can't get peripheral access and 9 now the designated team member is putting in a central line. 10 The prisoner gets a pneumothorax which is where the lung 11 collapses and they start to suffocate from that. What would 12 be done then? 13 Q Is that the only example you can give me? 14 A No, I can keep going. 15 Q Keep going, please do. 16 A Okay, yes. They're putting in a central line and 17 the prisoner starts having extreme pain and is screaming as 18 they're doing this saying this hurts really, really badly, 19 can you give me something to take away the pain and they do 20 not find anything to do that and the prisoner keeps on 21 screaming saying this is really hurting. What should be 22 done then? 23 Q Keep going. 24 A Okay. They start injecting thiopental into Line 25 One or Line A or whatever you want to call it. And they're OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2710 1 injecting it and the prisoner starts to say that's really 2 hurting really badly and they start to scream about it, 3 that's hurting me really, really badly, help, save me from 4 this. What should they do then? 5 Q Keep going. 6 A They are injecting the medications and the syringe 7 pops out and a big squirt of thiopental goes on to the 8 floor. What should they do then? 9 Q Do you have more? 10 A Yes, I could keep going on. I would say that in 11 California there was testimony that the executioners 12 discussed this exact question and they said that they 13 decided there were too many what-ifs to list them all. They 14 would refer to the doctor when something went wrong to give 15 them guidance as to what to do. So, we could just go on and 16 on with things that could go wrong. 17 What if the prisoner started to complain of 18 chest pain after they began to inject the thiopental. What 19 would they do then? 20 What if they started trying to inject the 21 thiopental and there was -- they couldn't advance the 22 plunger at all. What would they do then? 23 What if they were injecting the thiopental 24 and saw swelling at the IV site on their video camera. What 25 would they do then? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2711 1 Q Are you familiar with the video cameras? 2 A Am I familiar with video camera or with these 3 video cameras? 4 Q The video cameras used in Florida? 5 A I've never seen them. I've seen descriptions of 6 hem. 7 Q You've seen descriptions? 8 A I've hard descriptions. I'm not sure which. 9 Q Have you seen documentation related to the video 10 cameras? 11 A I can't remember. I can't remember if I've seen 12 documentation or I've been told things. I have an idea in 13 my head of what is going on and I'm little bit, it's tough 14 to remember because I've seen video camera in other 15 jurisdictions and right now I'm not -- I don't have firmly 16 in my head exactly what is being done in Florida but I have 17 a strong sense I've seen the things in the picture of the 18 chamber, the bubble things that are, which I believe are 19 video cameras would be housed. And so I know something 20 about at that, but I don't know everything about it. 21 Q Have you ever seen the instruction manual for the 22 cameras? 23 A No, I have not. 24 Q Okay. Moving on down to paragraph six on page two 25 where it talks purchasing, maintenance of lethal chemicals. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2712 1 Have you found that? 2 A Yes. 3 Q Who should retain and store the drugs, Doctor 4 Heath? 5 A I'm not -- I know something about the handling of 6 controlled substances but I'm not an expert in all aspects 7 of that. I handle them in the operating room but I'm not 8 the person who orders them to the hospital or keeps them in 9 the general hospital stocking area. 10 In my hospital they're, the controlled 11 substance are kept in one of two places, either in a locked 12 up pharmacy area, which has a little window like a bank has 13 where you can push things under a thick glass window or kept 14 in a machine where someone has to enter a user name and 15 password to get the drugs out. 16 So, I believe that's along the lines of a 17 standard that's required by the DEA now. But I don't know 18 exactly what they are but certainly a designated member of 19 the execution team, which I think means they would be over 20 18 years old, would not make them necessarily qualified to 21 be in possession of and to handle and secure controlled 22 substances like that. 23 Q Now, you're talking about, when you say over 18 24 years old, I think you're talking about the executioner as 25 defined by statute? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2713 1 A I'm sorry, yes, you're right. Not execution team, 2 you're right. 3 Q If the Department of Corrections complies with 4 State and Federal law in handling, all aspects of handling 5 the drugs that are at issue, would that be sufficient for 6 you? 7 A For that aspect of the issue of handling and 8 storing of the drugs, yes, that would -- that would me 9 sufficient. I should note that that includes tracking and 10 what we call accounting for the drugs. This many grams came 11 in, this many grams were injected into a person, this many 12 grams from wasted into a garbage can, so it all adds up to 13 the original amount that was shipped in. That's, I think, 14 what the DEA is particularly concerned about, that every 15 grams of thiopental that's ever manufactured, one can 16 account for its ultimate disposition. 17 Q Flip on over to page three, if you would, sir, 18 paragraph eight. It's headed approximately one week prior 19 to execution. This is the paragraph that talks about the 20 preliminary evaluation or examination of the Defendant to 21 determine whether there are any problematic, medical issues. 22 I know I paraphrased that paragraph but why don't you read 23 it to yourself if you're not already up to speed on what 24 we're talking. 25 A I think I'm up to speed. We discussed it with OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2714 1 Mr. Dupree. 2 Q Who should do the check of the inmate if the way 3 it's drafted in the protocols is in your opinion 4 insufficient? 5 A Again, I would go back to the person who's 6 qualified to do it in any other healthcare setting. This 7 being, I'm reading between the lines here thinking that the 8 main assessment is the assessment of the veins, because the 9 paragraph then goes to talk about venous access issues. 10 So, it needs to be done by -- it should not 11 be done by a person who doesn't have the -- hasn't been 12 allowed to do that and credentialed to do it and is current 13 in those procedures and who hasn't been shown to be 14 incompetent or do egregious things in a healthcare 15 institution in Florida. 16 Q Would it be acceptable for the person who's going 17 to start the IV at the actual execution to be the one to go 18 and look at the inmate? 19 A If that person is otherwise as we discussed 20 qualified to be the person starting the IV, that would seem 21 the reasonable person to do it. Perhaps the best person to 22 do it. 23 Q Doctor, I'm a little bit disturbed that have 24 you -- you haven't read the testimony that's come in about 25 who the technical or medically qualified team members are OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2715 1 going to be, have you? Testimony here this week? 2 A I have seen little, if any, of the testimony this 3 week. I saw Doctor Sperry's testimony. 4 Q Have you seen anything else? 5 A I'm not sure. I've seen such a huge stack of 6 paper, I can't tell you with certainty what I've seen and 7 what I haven't seen. 8 Q Doctor, I'm a little bit concerned that your 9 testimony starts or seems to start from the premise that the 10 Department of Corrections is going to try to do the wrong 11 thing. 12 A That's a mischaracterization of my intent in 13 testimony. 14 Q It seems to me in your testimony I think as taken 15 down by the court reporter will bear this out, you seem to 16 start from the assumption that the person establishing the 17 peripheral IV line is not qualified to do that. And I want 18 to know from you the source of the reason for assuming, from 19 the very beginning apparently, that the individual who is 20 going to start the intravenous lines is not qualified to do 21 so? 22 MR. DUPREE: I'm going to object. That's not what 23 his testimony is. All he's testified about is the 24 protocol and the way the protocols are written where 25 the State does not tell you who the person is. I'm OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2716 1 going to object to that. That mischaracterizes what 2 his testimony is. 3 THE COURT: Overruled. He can answer it. 4 THE WITNESS: Well, I am not assuming that at all. 5 I do not know anything about the individuals who are 6 doing this except for what -- because I don't know 7 first of all, I don't know who will be doing it in the 8 future. There are people who testified to the 9 Commission but I don't know if they will be involved in 10 the future. 11 So, all I know is what the protocol says. I 12 believe that they will do their best to adhere to the 13 protocol, they will try to follow it. I think they 14 were heavily chastised for not following the older 15 protocol. So, I believe in the future they really will 16 try to follow the letter the, law if you want to call 17 this a law, but it's not, it's a protocol. They will 18 try to adhere to this as best as they can. But this 19 doesn't tell them what is required to do that. 20 BY MR. NUNNELLEY: 21 Q Well, doctor, go back to page one. The first 22 sentence in the procedures. Talk about the execution team 23 and I know you listed a bunch of things you thought needed 24 to be in there, but it says and I'm quoting, "Execution team 25 were used herein refers to correctional officers and other OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2717 1 persons who are selected by a warden designated by the 2 secretary to assist in the administration of an execution by 3 lethal injection and who have the training and 4 qualifications, including the necessary licensure or 5 certification, required to perform the responsibilities or 6 duties specified." 7 That carries with it the requirement that the 8 people doing -- 9 MR. DUPREE: Objection, Your Honor. Mr. Nunnelley 10 is testifying. 11 THE COURT: Overruled. 12 MR. NUNNELLEY: Let me finished my question and 13 you might see that I'm not testifying. 14 THE COURT: Go ahead and finish. 15 BY MR. NUNNELLEY: 16 Q That requirement carries with it, doesn't it, the 17 requirement that the people doing medical functions in the 18 course of an execution have the necessary licensure and 19 certification, doesn't it? 20 MR. DUPREE: Again, Your Honor, he is testifying 21 as to what the Department of Corrections is it doing. 22 THE COURT: Overruled. You may answer the 23 question. 24 THE WITNESS: It has the word necessary but it 25 does not define what that is. It's circular or at self OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2718 1 referential definition. I cannot for the life of me 2 understand why they do not just come out and say it 3 will be a person who has an MD or a person who has a 4 physician's assistant, a PA license and who's being 5 supervised by an MD. We know that a PA has 6 participated in executions. If that person's still 7 wiling to do it in the future just put it down here and 8 if I don't know Florida law whether they have to be 9 supervised for a cutdown but that could easily be 10 established outside the courtroom and just put it down 11 here and then the prisoner and the State of Florida are 12 protected from what happened to Mr. Diaz. 13 Are they 100 percent protected no, because no 14 human endeavor is ever always carried out perfectly, 15 but are they reasonably protected, I would say yes and 16 I think all reasonable people would say yes. 17 BY MR. NUNNELLEY: 18 Q So, you think we need to say in the protocols more 19 than saying that the people carrying out medical functions 20 are authorized, licensed and certified to do those things in 21 this state? 22 A Clearly you have to say that because the prior 23 warden was under similar instructions in the identical 24 instructions and evidently his view of what was qualified 25 was inadequate. He brought in incompetent, people who were OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2719 1 incompetent to do it who made an egregiously bad decisions 2 and unacceptable. And so, it is not possible to say that 3 now that such a lose definition can work going into the 4 future. It has to be nailed down properly, otherwise the 5 prisoner and Florida are not protected. 6 THE COURT: Let's take a break here. We'll be 7 back. 8 (Break was taken.) 9 THE COURT: All right. Thank you. Be seated, 10 please. Should we alert the maintenance staff to be 11 ready for tomorrow too? 12 MR. NUNNELLEY: We're more than willing to go 13 tomorrow, Judge. 14 THE COURT: Let's alert the maintenance staff we 15 might need to go tomorrow. 16 MR. NUNNELLEY: We're probably going to need to go 17 tomorrow, Judge. 18 THE COURT: Definitely need to go tomorrow. 19 All right, thank you. 20 Have a seat, please. Thank you. 21 BY MR. NUNNELLEY: 22 Q Doctor Heath, turning back to the protocols. 23 A I only have one of them in front of me now, I 24 believe. 25 Q I'm sorry, the May 9, 2007 execution procedures, OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2720 1 Joint Exhibit 2. 2 (Off-the-record discussion by the Court.) 3 BY MR. NUNNELLEY: 4 Q Okay. Turning back to the procedures for 5 execution by lethal injection, who is the person who should 6 be assessing whether the inmate is unconscious and properly 7 anesthetized after the sodium thiopental is administered and 8 before the pancuronium bromide is administered? 9 A It needs to be a person who in the State of 10 Florida has got competent, qualified and credentialed to 11 assess the surgical plane of anesthesia. 12 Q What sort of physical checks should in your expert 13 opinion that person do in the context of an execution by 14 lethal injection in assessing the inmate's level of 15 consciousness? 16 A Again, now, you're asking me to define the actual 17 medical procedure, the details of that would be used in an 18 execution. All I can say is that the American Veterinary 19 Medical Association has set forth the conditions under which 20 potassium can be used and the checks that are necessary when 21 potassium is used as a method of euthanasia. 22 Q What are the checks that are appropriate in the 23 context of animal euthanasia when potassium is used in 24 carrying out euthanasia of an animal, sir? 25 A Thank you for asking it in that way, I appreciate OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2721 1 that. In the what the AVMA says in the veterinary context 2 it defines, it says if you're going to use potassium to do 3 euthanasia on an animal, then you need to assess its 4 response to a noxious stimulation. They describe, I 5 believe, clamping the tail or a paw or a surgical incision. 6 If you could give me back the AVMA guidelines I could read 7 exactly what they tell you and that would be the best way of 8 informing everybody in the room exactly what the AVMA says. 9 I don't know the exact language off the top of my head. 10 Q And I'm not going to hold you to the exact 11 language but most human beings don't have a tail that we can 12 clamp, do they? 13 A The primate without a tail, they would clamp the 14 paw or the hand, I guess, or the foot. 15 Q That would be esthetically unpleasing to do in 16 front of witnesses, wouldn't it, doctor? In the context of 17 an execution by lethal injection. 18 A Well, the number one goal that the DOC articulated 19 after the Commission was to make it humane and dignified and 20 then a subordinate goal was that it not be disturbing for 21 the witnesses. 22 Q Okay. So, if we're -- 23 A The number one thing is to make sure that it's 24 humane. And that test done by the AVMA is necessary to 25 make, sure the euthanasia by potassium is humane. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2722 1 Q So, what do you do? Pinch the animal's paw with a 2 set of hemostats? 3 A That's one thing that the AVMA talks about doing. 4 Q And when you transmute that over into or carry 5 that over into the context of lethal injection executions of 6 humans, what should we do? 7 A I can't -- 8 Q Let me finish the question, doctor. 9 What do you suggest that the State do, pinch 10 their hand with a set of hemostats? 11 A As you know, I'm not going to tell you, give you 12 suggestions about the actual medical procedures that one 13 would do in a lethal injection procedure. All I can do is 14 tell you where to look in the AVMA guidelines. They tell 15 you the kinds of things that need to be done. They give 16 examples that need to be done if you're going to use 17 concentrated potassium for animal euthanasia and it explains 18 that's because it's so painful to give concentrated 19 potassium that before you give it you have to verify that 20 the animal is in a surgical plane of anesthesia? 21 MR. NUNNELLEY: Your Honor, that's -- 22 THE WITNESS: It's all right there. 23 MR. NUNNELLEY: I would ask the Court to direct 24 the witness to answer the question. This is 25 cross-examination, he was qualified as an expert on OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2723 1 lethal injection. He went through the protocols or the 2 procedures, the May 9, 2007 procedures virtually line 3 by line and leveled a number of criticisms and 4 identified a number of what he described as 5 deficiencies. 6 Cross-examination allows me to inquire into any 7 aspect of direct examination. Erhart is very clear 8 about that. I'm entitled to explore with this witness 9 anything that tends to clarify his direct examination, 10 among other things, and I would suggest that what to do 11 to fix the protocols is the quintessential example of 12 what does clarify direct examination. 13 If this witness is not going to answer the 14 question, his testimony about the perceived 15 deficiencies in the execution procedures should be 16 stricken. 17 THE COURT: Well, I need to deny that because I 18 think this witness is an expert in caring for people. 19 He's not an expert in executing people and he's not 20 here to fix these protocols. So all I think you need 21 to do is to simply rephrase your question and ask the 22 doctor how do you assess consciousness. What's wrong 23 with that? That's all I really care about. 24 I can understand his objection not answering your 25 questions about how to get execute people. He's not OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2724 1 going to answer that and I understand it. 2 MR. NUNNELLEY: And Judge, I agree with it. And 3 that's why I objected to him being qualified as an 4 expert in lethal injection is because I expected he was 5 going to get up here and try to hide behind his ethics 6 and not answer all the questions and keep half the 7 truth from his Court. 8 THE COURT: He's a healthcare expert and he is 9 definitely qualified to answer the questions when it 10 comes to healthcare and he can certainly answer a 11 question about how to assess consciousness. I think 12 what he just told you and me was you take a pair of 13 glasses and you pinch the end of his finger. 14 I mean, how more complicated can they be? 15 BY MR. NUNNELLEY: 16 Q Would that be an acceptable thing to do in the 17 course of an execution, doctor? 18 A Again, -- 19 THE COURT: Strike that in the course of an 20 execution. I don't think he should be required to 21 answer that question. Ask him how you assess 22 consciousness. 23 BY MR. NUNNELLEY: 24 Q You assess consciousness by rubbing on the 25 person's sternum, can't you? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2725 1 A It's a way of assessing consciousness and depth of 2 and anesthesia. How much, whether they respond to that, 3 what would be a very painful stimulation, yes. 4 Q You can assess level of unconscious by flicking 5 their eyebrows or eyelashes, can't you, looking for their 6 eyes to flicker. 7 A Yes, but that's not for a surgical plane of 8 anesthesia. 9 Q What's it for? 10 A That's a lighter plane of anesthesia. 11 Q And of course, I guess I could take a pair of 12 pliers and pinch his fingers, couldn't I. 13 A When you're saying his, who are you referring to? 14 Q The patient? 15 A For patients, yes. I've never seen a surgeon do 16 that. Actually I have seen surgeons do that to fingers 17 trying to block the pain from and area, from the hand then 18 before they start operating on the hand they will do exactly 19 that, they'll take some hemostat, which are like a pair of 20 pliers and they'll pinch the hand or fingers in a way that 21 it would be extremely painful if we hadn't properly 22 anesthetized it. 23 Q Or you can do like you do in CPR, shake the 24 shoulder, hey, hey, are you okay? 25 A Not for a surgical plane. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2726 1 Q You can tell if they're unresponsive though by 2 doing that though, can't you, doctor? 3 A You can tell that they're unresponsive by having 4 their name called or shoulder shake but can't tell if 5 they're unresponsive to a surgical stimulation. That's why 6 the AVMA says if you want to use concentrated potassium to 7 euthanize animals, then you have to do these noxious 8 stimulations. It's clear as day, just take a look at it. 9 Q I'm well capable of reading it, doctor. 10 A I wish you would instead of asking me how to 11 design an execution. 12 MR. NUNNELLEY: Your Honor, I'm going to move to 13 strike that comment. No, I want it in there. It's 14 evidence of witness's bias. Never mind, I want the 15 Supreme Court to see that. 16 BY MR. NUNNELLEY: 17 Q Now, Doctor Heath, you can also, I suppose stick a 18 sharp object into the hand or foot couldn't you to assess 19 the level of anesthesia? 20 A Are you talking in the execution context or in a 21 clinical setting. 22 Q Whichever context you're willing to tell me about, 23 doctor. 24 A I'll talk about a clinical setting how we assess 25 anesthetics depth and yes, sticking a needle into the skin OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2727 1 is one way that is used. 2 Q But doctor, if an individual has been given 3 five grams of sodium thiopental through a properly 4 functioning IV line, they're going to die, aren't they? 5 MR. DUPREE: Objection. Asked and answered, 6 Judge. That's one of first questions he asked. 7 THE COURT: Overruled. You can answer it again. 8 THE WITNESS: I'll answer it the same way. If 9 it's delivered into their circulation and travels 10 throughout their body as it's supposed to, including 11 their brain and whole nervous system, and no 12 resuscitation steps are taken then yes, they will die. 13 BY MR. NUNNELLEY: 14 Q And we know as for certain that if that dosage of 15 that drug is successfully delivered, properly delivered, 16 okay, if measures are not taken, that person is going to be 17 unconscious and they're not going to be breathing, are they? 18 A That's correct. If it goes into the circulation, 19 then they will, even if measures are taken they're going to 20 be unconscious and they won't be breathing. Somebody else 21 would have to breathe for them as part of the resuscitation. 22 They would have to ventilate them. 23 Q They will go apneic and cannot breathe on their 24 own, correct? 25 A I wouldn't use the word cannot, they do not OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2728 1 attempt, the brain does not attempt to breathe on its own. 2 There is no breathing, cannot might imply that they're 3 trying to breathe. 4 Q If the person is not breathing after having 5 received five grams of sodium thiopental and no measures are 6 taken to resuscitate them or breathe for them, they are 7 going to die, aren't they? 8 A That's absolutely correct. I agree with Doctor 9 Derschowitz and virtually every other person who knows these 10 drugs about that. 11 Q They will not regain the urge to breathe in time 12 to avoid dying, will they? 13 A That's exactly right. They won't be breathing for 14 many minutes. Exactly how many, I don't think anybody can 15 tell you but after four or five or six or seven minutes the 16 cells in the brain start to rupture and die if there's no 17 oxygen, if there's no breathing. And once they finish doing 18 that, there's nothing in the brain, there is no brain 19 anymore to tell the body to breathe. That's absolutely 20 right. 21 Q And they are dead? 22 A They're dead. 23 Q Turn to page four of the protocols, sir. 24 Before we go to that, if the warden shakes 25 the inmate and calls his name after he has received OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2729 1 five grams of sodium thiopental through a properly 2 functioning IV, and if the inmate is, in fact, unresponsive 3 to the warden's shaking of him and calling his name, we 4 could reliably assume, can't we, Doctor Heath, that that 5 inmate is properly anesthetized to go forward with the 6 procedure, can't we? 7 A No, your question makes no sense. You're saying 8 if we assume that the five grams is in. That's something 9 that we can, that one should never assume and Mr. Diaz's 10 execution is a glaring example of that, that Florida should 11 never forget. Florida assumed that five grams of thiopental 12 were in his circulation but little to none to no thiopental, 13 in fact, was in his circulation. So, we can't assume that 14 five programs were in. So, your predicating on an 15 assumption that no person should ever make. 16 Q Well, doctor, let me put it in your surgical 17 context. I know you don't give five grams of thiopental, I 18 hope you don't, but knowing the effects of Sodium thiopental 19 as well as you do, if you pushed five grams of sodium 20 thiopental into a person, you didn't see any sign that the 21 IV malfunctioned, you know you pushed in all of your 22 syringes and properly flushed it so all of the drug was in 23 the person, you check your IV site, there's no problem with 24 the IV? 25 A Then I can discern. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2730 1 Q That you can discern. 2 A Thank you. 3 Q On palpation or whatever you want to do and you're 4 the expert and you're an anesthesiologist and you know how 5 to do all of these things. If you walk up to that person, 6 shaking him and say hey, Joe, wake up and he doesn't wake up 7 you're going to assume that he got all of drugs in him, 8 aren't you? 9 A No. 10 Q You're not, okay. But we -- 11 A That would be erroneous, that wold be very bad 12 practice to assume that. 13 Q So what would you do next? 14 A We're talking about a very hypothetical and not in 15 the real world situation but I'll try to go along with this. 16 I've had the experience of injecting a very 17 large dose of anesthetic drug, it was not thiopental but it 18 was a very large doses of an anesthetic drug and it turned 19 out there had been a medication error and what I was 20 injecting was not an anesthetic drug and the patient did not 21 become anesthetized. I was standing at the patient's 22 bedside, I was watching the fluid flow in, I don't remember 23 if I had occasion to check to actually palpate the IV site 24 but doing my normal level of doing surveillance and 25 vigilance about the delivery of the drug to. My OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2731 1 astonishment, the patient was not an anesthetized. It was 2 amazing to me because I thought I had injected this very 3 large amount of anesthetics drug. It was a medication error 4 and in fact was injected was not an anesthetic drug. That's 5 why the patient not anesthetized. 6 Q But if you had -- 7 A So, you're saying if I knew that it went in but we 8 never assume that our drugs went in. We look for the effect 9 of our drugs. Just like you wouldn't, I hope, prosecute a 10 person because witnesses saw them drinking alcohol. You 11 would prosecute them on the basis the effects of the 12 alcohol; a roadside sobriety test or a breathalyzer test. 13 You look for actual evidence that the alcohol had gone in 14 and done its effect, not that somebody saw them drinking, 15 but not knowing for sure what they drank or if it properly 16 got into their circulation. 17 You need to assess the anesthetics depth. 18 That's what all anesthesiologists will tell you, that's why 19 the American Veterinarian Medical Association says 20 explicitly when you want to use potassium for animal 21 euthanasia. I don't know how I can say it any more clearer. 22 Q But if you intend to inject anesthetic into a 23 human being and you do, in fact, inject the anesthetics into 24 that human being, and that human being does, in fact, go to 25 sleep or become unconscious, doesn't it follow at least on a OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2732 1 superficial lawyer-like level that the anesthetic did what 2 it was supposed to do? 3 A It's likely that some of it went in if the patient 4 who was conversant with you now doesn't respond. It does 5 not mean that all of it went in and that they are now at a 6 surgical plane of anesthesia. 7 Q So then we have to -- 8 A That's exactly why before we let the surgeon start 9 we have to gradually ramp up to testing a surgical plane of 10 anesthesia. We're not interested in wasting time in the 11 operating room. We go through that important test so that 12 we know that, because we do not assume that the drugs that 13 we have administered are doing what we expect them to do. 14 We assess that continually on a realtime basis. 15 Q How many slides have you ever looked at of brain 16 cells from people who died from hypoxia where the brain 17 cells ruptured, doctor? 18 A I've looked at -- I've seen slides from many 19 stroke victims. That's where the brain the part, blood flow 20 to the part of the brain is blocked off and those cells 21 died. In some cases something else killed the patient but 22 I've seen histology slides from many stroke patients. 23 Q Now, doctor, sodium thiopental redistributes at 24 fairly rapidly after death, doesn't it? 25 A If you could define what fairly rapidly means. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2733 1 Over per of hours, it certainly a moving around in the body, 2 yes. 3 Q How about over 13 hours? 4 A Absolutely, yes, there's substantial 5 redistribution. Just for the record, I want to clarify, we 6 don't know about redistribution of thiopental that's been in 7 people's -- that's sitting in infiltration or extravasation 8 in people's arms. All I know about is what's happened in 9 judicial executions. 10 Q Okay. And there was an article in the Lancet that 11 claimed to use sodium thiopental levels from blood drawn 12 long after an execution to support the notion of inadequate 13 anesthesia, wasn't there? 14 A There was, yes. 15 Q And you wrote a response to that article, didn't 16 you? 17 A I did, yes. 18 Q And that was also published? 19 A Yes, it was. 20 Q And you do not agree with the notion of inadequate 21 anesthesia based upon the Lancet research, do you? 22 A Lancet methodology is completely flawed and the 23 conclusions that they reached cannot be drawn from the data 24 that they've evaluated. 25 Q And in the case of the Diaz execution, Doctor OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2734 1 Heath, the blood was drawn -- Mr. Diaz was executed at 6:34 2 p.m. was the time of death. The autopsy started at 8:30 the 3 next morning. I'm not sure exactly when the blood was 4 withdrawn, but it was drawn some time after that. 5 Based upon your knowledge of sodium 6 thiopental and the properties in a dead human body, you 7 agree, don't you, that you can't draw any conclusions from 8 the concentrations of thiopental found in Mr. Diaz blood? 9 A Well, I can conclude that some thiopental entered 10 his body. 11 Q Yeah, he had some thiopental in there but you 12 can't draw any conclusions about the level of it at any 13 given time, can you? 14 A I would agree with that and say even more so 15 because we know that the thiopental, all or virtually all of 16 it went into the tissue around his veins in his arms. 17 Q Right. 18 A That represents a unique example. 19 Q It's not how it's supposed to be used, is it? 20 A It's not what's supposed to happen. 21 Q It's not intended -- doctor, we're agreeing about 22 something here. 23 A Yeah, it's great. 24 Q It's not supposed to -- thiopental is not designed 25 to be injected subcutaneously? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2735 1 A The packaging insert has a lot of concerns about 2 what happens when it goes outside the vein, yeah. 3 Q Right. And it's not very much research really 4 about what happens when it dose subcutaneously, is there, 5 other than some bad things? 6 A I tried and I could not find any research about 7 what happens to the blood concentrations of thiopental when 8 it goes subcutaneously. I wouldn't say, I spent of couple 9 of hours doing it. There may be something I missed but I 10 couldn't find anything and I, of course, wanted to so we 11 could understand what happened with Mr. Diaz. 12 Q That's not really surprising, is it? You know, 13 doctors aren't likely to be doing research about shooting 14 sodium thiopental in subcutaneously and seeing what happens, 15 are they? At least not with humans I hope. 16 A It's interesting because pancuronium is also not 17 supposed to be given subcutaneously but just like thiopental 18 sometimes we have accidents and sometimes it is given 19 subcutaneously. There is literature about what happens to 20 pancuronium when it's given subcutaneously. I was surprised 21 to see that, but there it was and it's very informative. 22 And so, I think it's important when one goes 23 searching in medical literature to plan to be surprised t 24 the level of things that people have looked into. 25 Q I guess the upshot to the whole thing is, we OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2736 1 really can't from the toxicology that was done on Mr. Diaz, 2 his blood work, we can't say anything other than there's 3 thiopental in his system. Is that a fair way to put it? He 4 got some thiopental? 5 A But the toxicology about thiopental? There's the 6 toxicology about the paralyzing drugs and other stuff. 7 Q I'm focusing on the thiopental right now. Let's 8 put it this way. We can tell from the toxicology report 9 that he got sodium thiopental? 10 A Somewhere in his body, yes. 11 Q And we can tell that he got pancuronium bromide? 12 A Yes. 13 Q But we can't quantify the level or the levels of 14 those drugs at any given time, other than when they were 15 drawn from his body some hours after his death? 16 A That's right. Doctor Sperry testified, I believe, 17 that that number would 4.4 would be the same as what it was 18 they when he died. I don't think there's any scientific 19 basis for asserting that. It's almost certainly wrong. 20 So, I agree with you, we do not know what the 21 concentration of thiopental was in Mr. Diaz's blood 22 circulation during the various phases of the execution and 23 we never will. 24 Q Turn to page four the protocols that is a Joint 2 25 of the May 9, 2007 procedures. Try to go through these OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2737 1 right quickly, if we can. I don't have a whole lot more for 2 you. 3 Look at the top of page four, subparagraph F. 4 A I have it, yes. 5 Q What would make that paragraph satisfactory to you 6 as an expert? 7 A Again, thiopental needs to be mixed by somebody 8 who's familiar with mixing thiopental. There are many, many 9 people in Florida who are familiar with mixing thiopental. 10 That would be a way to make sure that you are as best as 11 humanly and reasonably possible that thiopental is mixed 12 properly. Just having a designated member of execution 13 team, we or I don't know anything about their qualifications 14 and a person from the Florida Department of Law Enforcement, 15 who I'm presuming doesn't have any medical qualifications. 16 It is not the way to mix thiopental. 17 Q Turn it over to page five, subparagraph G. 18 Do you have any problem with that paragraph? 19 A There are modest deficiencies that I don't think 20 strongly bear on what I think the question at hand is here, 21 which is about the humaneness of executions. 22 Q Paragraph H on the same page, doctor. On page 23 five, paragraph H. Who should be preparing the IV sets? 24 A You're talking about the tubing, not placing the 25 catheters but setting up the IV bag. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2738 1 Q Who's spiking the bag and setting up the tubing 2 and all that? 3 A There are a number of different healthcare 4 professionals who are allowed by hospitals to do that. And 5 where I work we have anesthesia techs who are certified 6 status and they set up IV tubing and -- 7 Q You want to think about your answer, doctor? 8 A Yes. That's another thing that could wrong in the 9 procedure, the lights could go out in the middle of that. I 10 didn't see any contingencies for that. 11 Q Doctor, I represent to you that that happened the 12 other day in the last walkthrough. 13 A Really? 14 Q Uh-huh. And the generators kicked in and took 15 care of the problems? 16 A Just like this, I'm glad to hear that. 17 So, I'm sorry, could you ask the question 18 again. 19 Q Who needs to be setting up the IV sets, setting up 20 the saline bag all that sort of thing? 21 A There's a significantly large set of people in the 22 healthcare industry who routinely do that as part of their 23 job. And I could give you a very long list of those kinds 24 of people and it shouldn't be someone who isn't one of those 25 kinds of people. It shouldn't be a prison guard who has no OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2739 1 medical background. It should be a person that does it. I 2 think your word was good, does it as part of their day job 3 and their day job is in a credentialed certified Florida 4 healthcare institution. 5 Q An EMT, emergency medical technician would 6 actually be able to do that, wouldn't they? 7 A I think this they were a current EMT, current 8 license without any background of problems with near 9 certainty, yes. 10 Q First responder could actually be taught how to do 11 that, couldn't they, doctor? 12 A Could you give me the Florida definition of a 13 first responder. 14 Q What we used to call EMT One. 15 A There's different terminology in every state about 16 this, so and it matters. There are different levels of 17 EMTs. 18 Q What do you all use in New York? 19 A I don't exactly know. It's not an area that I 20 focus on. But there are different levels of EMTs who are 21 allowed to do various levels of things at an accident site 22 or a response site. 23 Q You're not in the EMS side of things at all, are 24 you? 25 A No, it's carefully regulated but it's not my area OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2740 1 of expertise. 2 Q Okay. That's fair enough, doctor. 3 MR. NUNNELLEY: Judge, I'm getting close. 4 BY MR. NUNNELLEY: 5 Q Doctor, let me ask you this and this may be again, 6 not something that's really your focus of your medical 7 practice but in the medical, in the medical field when y'all 8 talk about a protocol, that's a series of steps or series of 9 things to be done in response to particular events, right? 10 A Yes, a situation or a condition, that's right. 11 Q And for example, I guess an example would be if a 12 patient goes into cardiac arrest, there's a protocol for 13 cardiac resuscitation, isn't there? 14 A Yes, the ACLS, advance cardiac life support 15 protocols, they actually make clear that they're actually 16 guidelines. 17 Q And I guess a protocol is more something along the 18 lines of what a paramedic, either with the fire department 19 or ambulance, is going to follow on the street and that 20 would really promulgated by emergency medical service 21 director in the local area; if you know? 22 A We're getting into semantics of what a protocol 23 is. I'll do my best to answer this. The more senior a 24 person is in the medical hierarchy, if you want to think 25 about it that way, the less they are subject to protocols. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2741 1 They're supposed to exercise medical judgment based on their 2 experience and knowledge and the art and science of 3 medicine. They do not follow protocols for the most part. 4 The protocols for cardiac resuscitation 5 explicitly say that it's finds to depart from these if 6 medical judgment would indicate that that's the right thing 7 to do. And at the other end you have medical professionals 8 who have less background and training. They haven't gone 9 medical school and they've maybe more gone to some courses 10 and participated in EMS work and now they've taken an exam, 11 now they're paramedics but they don't have as much medical 12 experience as a experienced physician does. They're more 13 subject to protocols at the continuum. The more critical 14 the procedure and the less experience the person, the more 15 you'll tend to find protocols. 16 Q And I guess procedures would really be something 17 else, wouldn't they? A procedure, rather procedures written 18 down, not procedure do something, would really be a little 19 different from a protocol, wouldn't it? 20 MR. DUPREE: I'm going to object. I think we're 21 so far off field right now. 22 THE COURT: Overruled, you can answer. 23 THE WITNESS: Semantics, they may be legal 24 definition between a procedure and a protocol. I 25 believe that they would both, if you looked up the OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2742 1 definition in a dictionary, they probably both say 2 something like a series of steps that are to be 3 followed in a given situation. Just like you defined 4 it, I think that would be procedures or protocols. 5 BY MR. NUNNELLEY: 6 Q Doctor Heath, do anesthesiologists ever monitor 7 patients from -- monitor anesthetized patients from another 8 room other than during and MRI? 9 A That's the main example I can think of. I'm sure 10 there are other settings where that's done, but that's, if 11 you look at the literature about maintaining anesthesia in 12 remote setting, in a remote situation, that's all the 13 literature that I found, an MRI or a CAT scan. A setting 14 like that, where you don't have good access to the patient 15 because they're inside a machine. 16 Q How do you monitor the patient during brain 17 surgery. I mean, you can't be in front there by their head. 18 How do you do that? 19 A That's, you're not remote. You're within, we 20 turned the patient in the operating room so now their arm is 21 right next to us and their head is probably now four feet 22 away from where we're standing. And again, that's an 23 exigent circumstance. It's necessary for that to happen. 24 It's very much not our preference and we take extra measures 25 to try to ensure that there won't be any problems as a OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2743 1 result of that. 2 Q You specialize in cardiac anesthesiology, don't 3 you, sir? 4 A Cardiothoracic. Heart and lung operations mostly. 5 Q And in the cardiac context in the course of 6 cardiothoracic surgery you're going to be at the patient's 7 head, right? 8 A Yes. 9 Q And you're going to have how many IV lines running 10 into the patient? 11 A We usually have, the ones that I -- what we 12 usually do is we induce anesthesia where we had access to 13 the entire patient through a peripheral IV, say in the elbow 14 or the hand. And then once the patient's asleep, then I put 15 in a central line usually I put it into the jugular vein in 16 the neck. And that line has, it's actually a double line, 17 so I have two big IV tubes that's going into the patient's 18 neck. And believe it or not, we put a line through that I 19 think have three more tubes in it. It's a total of five 20 different places that I could give drugs in addition to that 21 peripheral IV so I don't use the peripheral IV. 22 Q What kind of fluids are flowing through these IV 23 lines? 24 A It's one of many fluids. There's a solution 25 that's kind of like the saline solution that you guys are OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2744 1 using in executions but it's lactated ringers. It's a clear 2 fluid with salts in it. We give drugs that are in fluids 3 throughs those lines. We have give blood through some of 4 those lines. We give plasma, which is part of the blood 5 that helps clotting. We give platelets which are kind of 6 constituent of the blood that help clotting. We give a 7 variety of thing through these fluids, these tubes. 8 Q And the purpose of the IV tube itself with the 9 lactated ringers or whatever you're using in it is to give 10 you access into the venous system, isn't it? 11 A Yes. 12 Q It's just a portal, if you will, to get the drugs 13 that you need into the patient, right? 14 A Yes, with the exception of one of the things I 15 described, we also use it to measure pressures inside the 16 heart, but we can get drugs through it too, it's both. 17 Q Okay. When all this is going on where is the IV 18 pole with the bag hanging on it? 19 A The patient's lying like this, if this is their 20 head and this is their feet, there will be a IV pole here 21 right at the level of their shoulders and another IV pole 22 right here at the level of their shoulders. So, we use for 23 heard operations two IV poles, one on each side and about 24 the level of their shoulders or neck. 25 Q And where does the surgeon stand during all this? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2745 1 A For heart operations the surgeons are, two or more 2 surgeons and one is standing on each of the patient's chest. 3 Q And the IV pole is also in there with the 4 surgeons, is what you're telling us? 5 A No, I could draw a picture it's hard to describe. 6 Q It's not that important. 7 But the fact of the matter is, the IV set 8 that you looked at that's in evidence as the demonstrative 9 exhibit that you looked at earlier today, that's standard 10 medical equipment, isn't it? 11 A Yes. 12 Q You could go to any hospital in the country and 13 find the same equipment, couldn't you? 14 A Or similar equipment, yes. There are many 15 different manufacturers and they have their variations. 16 Q You would find this or something comparable 17 anywhere you went, wouldn't you? 18 A Any healthcare institution in the world. 19 Q Okay. Probably find it on an ALS ambulance, 20 wouldn't you? 21 A Yes. 22 Q I forgot you're not in EMS that much. 23 Anyway, the use of sodium thiopental in this 24 case is really and off-label use of that drug, isn't it, to 25 use it for an execution? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2746 1 THE COURT: Say what, what did you say? 2 MR. NUNNELLEY: It's an off-label. Not exactly 3 the intended use, I guess it what the term means, 4 Judge? 5 THE WITNESS: Before I answer that would you talk 6 about exactly what you do mean by off-label? 7 BY MR. NUNNELLEY: 8 Q The labeling in the package insert that comes with 9 sodium thiopental doesn't talk about it being used for 10 lethal injection, does it? 11 A That's correct. 12 Q So, consequently it is an off-label use, isn't it? 13 A You're not really talking about -- that's a term 14 of art, it is I believe a legal term also. 15 Q Why don't we use it as a medical term of art, 16 doctor, and explain to us what it is. 17 A The way it generally works is that when a drug 18 company develops a new drug and they want to put it out to 19 market, they do studies on people to show that it works for 20 a certain indication. They come up with a drug that's good 21 or treating blood pressure and for treating hypertension, 22 for treating high blood pressure. They get it approved for 23 that use and the FDA says okay, we now approve this drug is 24 for treatment for hypertension. It may be that that drug is 25 very useful to doctors to treat a large array of other OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2747 1 conditions. In fact, it may be that it's more useful for 2 treating some other condition than it was for the actual 3 thing that this was approved for. And so it may be that we 4 use a drug hardly ever for what it was approved for, but for 5 some other purpose. That's very, very common. So that 6 would be called an off-label use. The FDA approved it for 7 treating blood pressure but we now use it for treating 8 cardiac arhythmias. That would be an example. 9 Q Is there any off-label use for sodium thiopental 10 in a five-gram dose other than lethal injection? 11 A Thiopental is used in very large doses to induce 12 what we call a thiopental comma. It's a rarely done 13 procedure where a person has a brain injury that we believe 14 would be benefited by being put into a very deeply comatose 15 state by a large dose of thiopental. 16 I do not believe, although I have to check, 17 that that's described in the package insert or it's an 18 on-label use but that's something that many physicians have 19 felt is a useful thing to do under certain circumstances of 20 brain injury or a threat of a brain injury during surgery. 21 Q Five grams of sodium thiopental is not the dose 22 used to induce thiopental comma though, is it? 23 A It's not what's used to induce it but it depends 24 how long one wants to maintain it for. If one wants to 25 maintain it, then one needs to keep giving more. If you OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2748 1 want to maintain it for several days then you would 2 certainly be getting up to into the five grams range. 3 Q You're not giving five grams in a whole dose? 4 A No, I don't know of any setting where anybody's 5 ever injected that amount all at once. 6 Q I believe you testified that you were involved in 7 a Georgia case that was in up Savannah pretty recently. You 8 testified live in that case; did you not? 9 A I did, yes. 10 Q Do you know whether or not your testimony was 11 accepted or rejected? 12 A All I know is what I saw in the courtroom. I 13 don't know any follow up from it but the Judge admitted me 14 as an expert in the study of lethal injection and as an 15 anesthesiologist and maybe as a field of medicine. I can't 16 remember that last part. I don't know, and I testified for 17 a few hours and I was cross-examined and -- 18 Q Do you know the outcome of that case? 19 A No, I don't. 20 Q I mean, doctor, is it fair to say that you must 21 have been qualified as an expert if you were allowed to 22 testify for several hours? 23 A Yes. 24 MR. DUPREE: Objection. It's beyond the scope of 25 his knowledge, Your Honor. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2749 1 THE COURT: He said yes. Go ahead. 2 THE WITNESS: Yes, I was admitted as an expert. I 3 testified for several hours. I believe I was, my 4 testimony was admitted. 5 BY MR. NUNNELLEY: 6 Q What was that inmate's name? 7 A I don't recall. 8 Q Was it High by chance? 9 A There was an inmate who's already been executed by 10 the name of Mr. High but that's not who I was, his case I 11 was testifying in. I was testifying in a case where I 12 believe the inmate has probably a number of years worth of 13 appellate process ahead of him. And there's a man named 14 Jose' High, I think, who was executed in Georgia several 15 years ago. So, that would, unless there are two Highs, that 16 would not be the name. 17 Q Now, Doctor, part of the procedure that's used in 18 pushing the drugs that we're talking about through the IV 19 lines is the saline flush between the drugs. Now, that 20 saline flush really does two things, probably more than 21 that, but it does a couple of things, doesn't it? It keeps 22 the drugs from mixing together. And I understand that if 23 sodium thiopental and pancuronium bromide mix together they 24 can precipitate and that can cause a problem; am I right? 25 A Thiopental precipitates, yes. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2750 1 Q Whichever one of them does, I don't know. 2 A The thiopental precipitates. 3 Q And that's one of the reasons for flushing the 4 line with the saline solution between the two drugs, isn't 5 it? 6 A If we are ever in a clinical setting giving 7 thiopental and then paralyzing by pancuronium, again, we 8 don't use pancuronium hardly at all now. Then we would need 9 to make sure they were separated by a flush. 10 Q And the act of flushing the IV tubing with saline 11 pushes the drug, the first drug that was injected into the 12 tubing out and clears the line in preparation for the 13 pushing of the second drug, doesn't it? 14 A Yes, that's its purpose that's what it does if it 15 works properly. 16 Q So in other words, when the plunger hits bottom 17 with the second thiopental, sodium thiopental syringe, the 18 syringe bottoms out or the plunger bottoms out, everything's 19 been pushed through, if you didn't take the sodium 20 thiopental syringe out and flush the line with saline 21 solution, the thiopental that was left in the IV line has 22 been pushed on out into the inmate, hasn't it? 23 A It'll be pushed on down into the tubing. Depends 24 what the volume of the flush that you use is, whether it 25 reached the inmate or not. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2751 1 Q And how do you determine how much flush is needed? 2 A Some IV sets have what's called a priming volume, 3 which is a -- imagine a garden hose, how much water would 4 you have to put in a garden hose so that you would fill it 5 all up and there was no air left in it and it's like that 6 for the IV tubing also. 7 Q I'm showing you what's called a primary IV set 8 still in the package. I've taken it out of State's Exhibit 9 1 that's in evidence. If you would take a look at than tell 10 me if it's got the priming volume on it, sir. 11 A A lot of information here. It might save time to 12 just point me to where you think that might be. 13 Q I'm not sure I'm better off looking for it than 14 you are, doctor. 15 A Want to give me another one? 16 Q Here we go. Approximate priming volume 17 17 millimeters. Do you agree with me? 18 A Can you just point -- 19 Q Right at the very top? 20 A Okay, yes. It's 17 milliliters. 21 Q So, 17 milliliters it's not very much, is it? 22 A Got give me a context. 23 Q Pardon? 24 A Not very much compared to what. It's a lot 25 compared to a tenth of a milliliter. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2752 1 Q I'm showing you also an extension set that I 2 represent to you is a 30-inch extention set out of the same 3 exhibit and it shows on the packaging approximate priming 4 volume four milliliters. 5 A Okay. 6 Q So 17 plus four is what, 21? 7 A That's right. 8 Q So 21 milliliters of priming volume means that 9 there would be at the conclusion of the thiopental and 10 sodium thiopental injection there would be 21 milliliters of 11 thiopental remaining in the tubing assuming the IV set and 12 the extention set was used, doesn't it. 13 A Are they putting an extention set on the end of 14 the IV set for neither arm? 15 Q I'm not sure. 16 A I'm not sure. 17 Q We're going to assume for the sake of this 18 question that the configuration in the demonstrative aid is 19 the one that they're using with the extension set at the top 20 port? 21 A Can you show me the full set. 22 MR. DUPREE: Your Honor, I'm going to object to 23 the assumption. Otherwise it's not relevant. 24 MR. NUNNELLEY: Judge -- 25 THE COURT: It's just a hypothetical. Go ahead. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2753 1 Okay. 2 THE WITNESS: I just want to clarify we usually 3 use the term extension set is to extend the IV tubing 4 by being attached to the end of it extending the length 5 of it. I've never seen an extention set, set up this 6 way. Normally extension set goes at the end of the 7 tubing and extends. You may have one or more of them 8 on the end. 9 BY MR. NUNNELLEY: 10 Q This screws back on here right, doctor? 11 A Yes. 12 Q You took it off before. 13 A Yeah. 14 Q This screws back on here. I want to make sure we 15 got it back like it was. 16 THE COURT: He put it back that. 17 THE WITNESS: Would probably be right, yeah. 18 BY MR. NUNNELLEY: 19 Q If this has a priming volume of four milliliters 20 and the main tube has 17 milliliters so we have 21 21 milliliters of the thiopental left in this when the last 22 syringe it completely injected, don't we. 23 Then if we push a 20cc, got it, syringe of 24 saline through this tube, that's more than sufficient to 25 push out any remaining thiopental sodium? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2754 1 A I agree with that, yes. 2 Q Okay. It's kind of a long way to get to a simple 3 answer. 4 A Yeah, that's plenty for a flush volume in the 5 context of trying to separate thiopental from pancuronium. 6 Q The extention sets are commonly used in IV 7 practice, aren't they? 8 A I've never seen them used in that way. They're 9 used to make the tubing longer not to add on to the side 10 like that. I haven't seen that before. 11 Q Can you envision a circumstance where it might be 12 appropriate or necessary to do that? Let me help you out, 13 how about an execution in the State of Florida? 14 THE COURT: He doesn't have to answer that one. 15 He's not trained in executions, just in treating 16 people. 17 BY MR. NUNNELLEY: 18 Q You've never encountered a circumstance where you 19 needed to do that, a need to set an IV setup the way this 20 one is configured? 21 A No, I've never set an IV set up like that. I've 22 never seen one set up like that. 23 Q Judicial execution is not a medical procedure, is 24 it, doctor? 25 A As with the four stages that we discussed earlier; OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2755 1 getting IV access, providing anesthesia so that the 2 potassium is not inhumane, those things are medical 3 procedures. Putting a six-inches catheter into somebody's 4 or their collarbone or their neck, that's a medical 5 procedure. Inducing a general anesthesia, maintaining 6 general anesthesia, establishing and maintaining a surgical 7 plane of anesthetic depth, those are medical procedures. 8 Giving somebody a lethal dose of potassium, concentrated 9 potassium with the intent to kill them is not a medical 10 procedure. 11 Q Doctor, I guess by your definition then really 12 giving a lethal dose of all three of those drugs of the 13 sodium thiopental, the pancuronium bromide and the potassium 14 chloride, that's not a medical procedure if you're giving a 15 lethal dose of those drugs, is it? 16 A This is a -- you're splitting hairs is the wrong 17 term but it's a semantic issue. If you choose, which 18 Florida is choosing to do, to execute somebody with 19 potassium chloride which is a extremely painful way of 20 executing somebody then you have to make sure that they're 21 in a surgical plane of anesthesia before you give the 22 potassium and throughout the duration of time that they're 23 being exposed to potassium until they're dead. Assessing, 24 inducing and maintaining and assessing a surgical plane of 25 anesthesia, that's a medical procedure. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2756 1 Q Doctor Heath, I've just got a couple more 2 questions. The American Veterinary Medical Association 3 report on euthanasia goes through and lists a whole bunch of 4 different ways that can be used to euthanize animals, 5 doesn't it? 6 A Many, many ways, yes. 7 Q And it says some of them are acceptable and some 8 of them are conditionally acceptable and some of them you 9 can't use? 10 A Right. 11 Q And it lists exposure to carbon monoxide as least 12 a conditionally acceptable and I believe an acceptable 13 method for euthanasia. Do you recall that? 14 A I didn't read that section. I remember seeing 15 that in there. I'm pretty sure, again, I didn't think it 16 was likely to be germane to the expertise that I'm 17 acquiring. 18 Q And also, I believe it lists carbon monoxide as 19 acceptable to be used with large primates; does it not? 20 A That I don't know. I don't recall reading the 21 paragraph but I don't know what it says. 22 Q Where was that report? 23 THE CLERK: Do you have a number? 24 MR. NUNNELLEY: Give me just a moment, Your Honor 25 so I can find the document I'm looking for. It would OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2757 1 be State's 6, madam clerk. 2 THE CLERK: Thank you. 3 BY MR. NUNNELLEY: 4 Q Doctor, if you would, I'm showing you State's 6 5 which is the AVMA report turn to the back of that if you 6 would where it has the appendices. See now appendix, go to 7 appendix three, if you would, doctor. It's page 695. One 8 of the acceptable agents or rather conditionally acceptable 9 agents is carbon dioxide, isn't it? 10 A Show me where. 11 Q It says conditional -- 12 A Okay. Conditionally, yes, carbon dioxide it lists 13 as one of the conditionally acceptable agents. 14 Q And one of the species for which it is suitable is 15 non-human primates, isn't it? 16 A Yes. 17 Q And right below that is carbon monoxide and it's 18 also listed as suitable for nonhuman primates, isn't it? 19 A Yes. 20 Q And if you go on down a little bit further gunshot 21 is also listed as an acceptable method or conditionally 22 acceptable method of euthanasia, doesn't it? 23 A It is, yes. 24 Q Doctor Heath, you're opposed to capital 25 punishment, aren't you, sir? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2758 1 A Yes. 2 MR. NUNNELLEY: No further questions for this 3 witness. 4 MR. DUPREE: Just one minute. 5 THE COURT: Did you ask the doctor before if 6 physicians are involved in the execution process. Did 7 you ask him that? 8 MR. DUPREE: I think what he answered was that he 9 was aware that there was some states there were 10 physicians involved. 11 THE WITNESS: I could clarify. 12 THE COURT: Please, because I thought doctors were 13 not involved in the execution process. 14 MR. DUPREE: He can clarify that. 15 THE COURT: How are they involved? 16 THE WITNESS: Your Honor, that's a really great 17 question and important question. I also, before I got 18 involved in this, thought that doctors were not 19 involved in executions except for pronouncing death, 20 but it turns out that that's wrong and in almost all 21 executions physicians are participating in the 22 procedures. 23 In some states it's articulated that they will be 24 there and they will do various things. In other states 25 it's just -- it's a testified matter of fact that that OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2759 1 is how it's done. But presumably because of the 2 complexity of the procedure and the recognition that 3 things can go wrong, the Department of Corrections have 4 physicians there and there are physicians who are 5 willing to step forward and do that. 6 There's a very good and interesting article in the 7 New England Journal of Medicine for about a year 8 and-a-half ago, two years ago by a Harvard surgeon 9 named Doctor Gawande. It's the longest article that 10 the New England Journal of Medicine has ever published. 11 It talks about -- it interviews, he interviews these 12 doctors who participated in executions around the 13 country and they describe the kind of situations that 14 have arisen and how they've gotten, what they've done 15 and how they feel about it and all that kind of stuff. 16 THE COURT: Thank you. 17 MR. DUPREE: Can I have just have two minutes, 18 Judge? I want to confer with counsel just very 19 briefly. 20 THE COURT: Sure. 21 MR. NUNNELLEY: Judge, I have a couple of 22 questions based on the Court's question. 23 THE COURT: All right. 24 Are you expecting some rebuttal or is this going 25 to be it when you're finished with him? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2760 1 MR. NUNNELLEY: I'm expecting to be putting on 2 some witnesses, Your Honor, after Doctor Heath is 3 finished. Not today. 4 THE COURT: Right. 5 MR. NUNNELLEY: Because we're actually kind of out 6 of order again because the State's case was yesterday 7 and -- 8 THE COURT: You haven't finished all your 9 witnesses. 10 MR. NUNNELLEY: Well -- 11 THE COURT: That's okay. It's not a problem. 12 MR. NUNNELLEY: It's one of those, I'm out of 13 synch with it, Judge. 14 THE COURT: I understand. Let's go. 15 BY MR. NUNNELLEY: 16 Q Doctor Heath, you testified at the lethal 17 injection Commission proceedings that, I believe you said 18 something like 16 percent of physicians would be willing to 19 take part in an execution. 20 A I think the number might have been -- I should 21 clarify. The number might have been 18 percent of 22 physicians are willing to personally inject the drugs, the 23 lethal injection drugs into the prisoner. What I was 24 referring to was that a pair of studies done by a Doctor 25 Farber surveying physicians as to their attitudes and OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2761 1 actions that they would do in lethal injection procedures. 2 And the surveys asked them a series of questions; would you 3 observe an execution, increasing levels of participation and 4 I'm paraphrasing. Would you attend an execution, would you 5 help consult to design an execution, would you help start 6 the IVs, would you inject the drugs, would you assess death. 7 That's a series of actions and whether or not a physician 8 would be willing or not to take those action. 9 And I don't remember the numbers but the most 10 involved action I would think everyone would agree would be 11 actually injecting the lethal drug or drugs into the person, 12 the prisoner. That would be the most involved action and 13 18 percent of physicians, I believe the number was, stated 14 that they were willing to do that. There were other less 15 involved actions that higher percentages of physicians said 16 they were willing to do. 17 Q So, doctor where are those people? They don't 18 seem to be coming forward. 19 A I don't know if anyone -- did you invite them? 20 Q I don't know where they are, I can't invite them. 21 The study's hypothetical, isn't it? 22 A No, it's not hypothetical. It was a study that 23 was actually done and they were asking real doctors real 24 questions about a situation that does occur in the real 25 world. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2762 1 Q But we don't know how many of those doctors 2 wouldn't produce when the time came to actually take part, 3 do we? 4 A You're right. There's, in many situation there's 5 a difference between what somebody says they will do and 6 what they would actually do when the rubber hits the road. 7 What would they actual do, that's a different question and 8 the survey does not address that, you're right. 9 Q Doctor, let me ask you this. I don't mean to be, 10 I'm not sniping at you, I'm really not. But some doctors 11 have been on the receiving end of medical ethics complaints 12 for being involved in an execution or taking part in 13 execution to some degree. Are you familiar with that? 14 A Yes. 15 Q I take it you would not be one of the individuals 16 who would participate in an execution in any way, given your 17 refusal to answer some of the questions here today. Am I 18 right about that? 19 A That's right. 20 Q But just because you wouldn't participate in an 21 execution doesn't mean that you would be one of the -- a 22 doctor who would filed a complaint against another doctor 23 who did participate, does it? 24 A I've never filed a complaint against a doctor and 25 I don't envision doing that. I know of many doctors now who OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2763 1 have participated in executions and I've never been involved 2 or encouraged or done any such thing to initiate a 3 complaint. 4 Q Is that a matter of their personal conscience; if 5 you will? 6 A It's a matter of my personal conscience not to 7 dictate other people's personal conscience. So, if they've 8 made a decision about what they're comfortable with doing in 9 their ethics, I don't think it's my place to initiate an 10 action against them. And I just, I know three examples 11 where that's happened. 12 Q Doctor, let me ask you this. Would you be against 13 capital punishment even if there was no medical procedures 14 at all necessary to carry it out? 15 A Before I got involved in this I didn't even think 16 about capital punishment or didn't care about it either way. 17 As I've become exposed to how the system works and sometimes 18 fails to work properly, I've now become opposed to capital 19 punishment. 20 Q No matter how it's carried out? 21 A No matter how it's carried out, that's right. 22 MR. NUNNELLEY: Okay. No further questions, 23 Judge. 24 MR. DUPREE: If I can just have two minutes. 25 THE COURT: Go ahead, no problem. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2764 1 (Break was taken.) 2 THE COURT: Okay. Thank you. Resuming our 3 hearing. 4 REDIRECT EXAMINATION 5 BY MR. DUPREE: 6 Q Doctor Heath, on cross-examination you were asked 7 about the effects of sodium thiopental and whether or not 8 the injection of five grams in somebody in a working IV into 9 their vein would cause their death; is that correct? Do you 10 recall that? 11 A I think twice or more. 12 Q Okay. Now, is thiopental, if somebody was just 13 injected with thiopental, no other drugs, no pancuronium, no 14 potassium, would -- you said the person would die. Would it 15 take a long period of time? 16 A It would take depends on what you mean by a long 17 period of time. It would take certainly under an hour. I 18 think it's highly unlikely to take even half an hour. Could 19 it take 20 minutes or ten minutes, those things wouldn't 20 surprise me. And to some extent it gets into our definition 21 of death. 22 Q So -- 23 A What death is. 24 Q So, is that like potassium chloride is used to 25 hasten the death? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2765 1 A You're asking for my opinion about why they put it 2 in there. 3 Q Why they put it in there, yes, sir. 4 A They articulated the, different Department of 5 Corrections officials and attorneys and executioners and 6 wardens have articulated that the potassium is there to 7 hasten to death, to make it a speedier execution. 8 Q Going back to the thiopental. Again, just 9 assuming the five grams, what would cause the death of a 10 person who is given five grams intravenously of thiopental? 11 What's the cause of death? 12 A In most cases if you just give them thiopental and 13 nothing else, it would stop all of them from breathing and 14 they would all die from breathing except that a subset of 15 them might die before that because of cardiovascular 16 collapse. 17 Q Okay. Now, as a result of somebody going, having 18 a lack of oxygen, would that have any kind of physiological 19 reaction to be shown? Somebody watching that, would they be 20 able to see something on that person? 21 A Not a person who has a lack of oxygen because of 22 thiopental. A person who has a lack oxygen and is 23 unconscious could have a seizure because the brain is dying 24 seizures can occur and that would be revealed by a lot of 25 shaking and writhing and bucking movement, but barbiturates OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2766 1 including pentothal are extremely powerful antiseizure 2 medications, anticonvulsant medications. I would be very 3 surprised if you gave somebody five grams of thiopental and 4 it went through their circulation and it stopped them from 5 breathing and sat there and waited, I would be very 6 surprised if that person exhibited any evidence of a 7 seizure. 8 Q Could it happen? 9 A I think it's very unlikely but I suppose it is 10 possible. I don't know. Have to give to 500 nonhuman 11 primates to see what they do. That's the way to 12 scientifically answer a question. 13 Q Okay. Now, also on cross you were asked how 14 somebody doing something on the -- somebody let me rephrase 15 that. 16 Just because somebody did something on their 17 day job that they would be okay to do it, correct? 18 A I'm saying it's a general rule if they've been 19 credentialed to do it, if they're appropriate to be doing it 20 at the day job that means they're current, I assume they're 21 not incompetent. That would need to get checked, you would 22 need to get references. Yeah, that's adequate to assess 23 their competence. 24 Q Just because somebody does something on their day 25 job doesn't mean that they are competent. Do you agree with OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2767 1 that? 2 A There are incompetent people working on their day 3 jobs. 4 Q Okay. Including medical professionals? 5 A Unfortunately there are some, yes. Any 6 professionals. 7 Q And then you were asked also about remote, 8 initiating remote anesthesia. Is that something that you 9 do? 10 A I haven't done that in a very long time. 11 Q Now, in your opinion if a person was a medical 12 professional or a doctor, let's start with a doctor. If the 13 person was a doctor and they were monitoring an EKG during 14 execution, in your opinion is that somebody that would be, 15 the doctor would be taking part in the execution? 16 A Yes. The American Medical Association defines 17 participation and that would be included in their definition 18 of participation. What my definition is, I don't know, it 19 just depends on how you define participation. The AMA calls 20 that participation. 21 Q If the doctor treats a patient should he take part 22 in that person's execution? 23 A Well, according to AMA, no doctor should take part 24 in an execution. I believe the AMA ethics panel would be 25 extremely concerned about a doctor or any healthcare OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2768 1 provider who were treating a person and then participating 2 in their execution. 3 Q And does a fact that somebody is approved by the 4 warden to do a certain job in the execution team, does that 5 mean that that person is necessarily competent? 6 A We know from the Diaz execution that that is not 7 the case. 8 MR. DUPREE: I have no further questions, Judge. 9 RECROSS-EXAMINATION 10 BY MR. NUNNELLEY: 11 Q Doctor, not all doctors are the members American 12 Medical Association, are they? 13 A Correct. 14 Q You're not a member either, are you? 15 A I believe I am. 16 Q I don't believe it was on your CV, maybe I misread 17 it. 18 A There have been a couple of times where I've let 19 my membership lapse but I believe it's current now, although 20 I can't be certain. I get E-mails from them, I think every 21 day that I think they only send to their members. 22 Q Doctor, let me ask you this. When you have a 23 patient that goes into compete cardiorespiratory arrest, not 24 breathing, heart's not pumping, how long do you have before 25 you have irreversible brain damage? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2769 1 A They're not breathing and their heart is not 2 pumping. 3 Q Uh-huh. A code blue, okay. 4 A Okay. 5 Q How long before you have brain damage beginning? 6 A Well, the number that's out there that we're all 7 taught is four minutes. That's the number that's been put 8 out. If you tried to fine out exactly where that came from 9 as you can imagine, that's a hard thing to study to do 10 science on, because you have to take human beings and -- 11 Q Probably don't have a lot of volunteers for that? 12 A That's exactly right. So, that's a number that 13 people throw out as a ballpark. After four minutes if you 14 do resuscitate the person which have you often can after 15 four minutes, you'll get their body back, the heart and 16 their lungs back but their brain won't work properly ever 17 again. Might work partially but it probably won't work all 18 the way. 19 Q After breathing stops you're gonna have brain 20 death in four to five minutes, aren't you, doctor? 21 A It's a little bit different. Breathing stops but 22 the circulation continues, then it will take a longer for 23 the brain do die because blood is still being pumped through 24 the brain and that blood, even though it hasn't picked up 25 oxygen from the lungs, still has oxygen it in and it's able OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2770 1 to carry away the acid that the brain is producing, the 2 carbon dioxide, the acid that that makes. So, if 3 circulation is maintained, then it will take longer to have 4 brain damage than if there is no circulation. 5 Q The brain certainly cannot survive 30 minutes 6 without breathing and circulation except under bizarre 7 circumstances; is that correct? 8 A That's correct. Sometimes in heart procedures we 9 cool patients way down and we do what's called a total 10 circulatory arrest and we can go for 30 or 40 minutes with 11 no circulation in a very cold brain and bring them back with 12 100 percent brain function. 13 MR. NUNNELLEY: No further questions for this 14 witness, Your Honor. 15 THE COURT: Okay. Thank you, doctor. You may 16 step down. 17 THE WITNESS: Thank you, Your Honor. 18 THE COURT: Yes, sir. 19 MR. NUNNELLEY: He might even make his plane, 20 Judge. 21 THE COURT: Ready for a break? Do we need to come 22 back tomorrow or are we done? 23 MR. NUNNELLEY: Judge, we've got three witnesses 24 for tomorrow. 25 THE COURT: What time you want to start? OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2771 1 MR. NUNNELLEY: I think we can start at 9:00 and 2 give ourselves a break on Sunday. 3 THE COURT: That's fine. We will have air. 4 MS. KEFFER: Your Honor, again, if we could get an 5 indication of who they're intending to call tomorrow. 6 THE COURT: Any idea? 7 MR. NUNNELLEY: Doctor Sperry -- we will or may 8 call Doctor Sperry, Warden Cannon and Mr. Changus. 9 MS. KEFFER: And Your Honor, I don't believe that 10 the Defense has rested yet. I had two motions to file 11 before we do. Obviously beyond Doctor Heath I don't 12 have other witnesses at this point, but I have two 13 motions that I want to file with the Court today. 14 Your Honor, there's three motions and my 15 co-counsel's going to provide copies as I'm getting 16 these filed with the clerk and there are courtesy 17 copies for Your Honor. 18 The first motion is a motion for testimony from 19 the medically qualified team members and the 20 executioners. If you recall, we had -- well, I don't 21 know that I -- if Your Honor wants argument on it now, 22 otherwise I can file continue it and get copies to the 23 State and let them have an opportunity to do what they 24 need to do. 25 THE COURT: Let's just filed it and get them a OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2772 1 copy. 2 MS. KEFFER: That's fine. 3 The second is a motion or second motion to take 4 judicial notice, judicial notice of the amended 5 complaint and an order, two orders actually, that we 6 have mentioned in court with regards to the Federal 7 Lethal Injection Procedures. And the third, just so 8 that the Court and the State is aware, is a motion to 9 leave the evidentiary hearing open. 10 For now they speak for themselves and we'll just 11 take it up when the State's had a chance to review 12 them. 13 THE COURT: Sure. 14 MS. KEFFER: There's one additional thing that I 15 wanted to put on the record. 16 As the Court was aware, we had listed and intended 17 to call Mr. Dupree as a witness. He was a witness to 18 the Diaz execution. There was quite a bit of argument 19 with regards to his testimony and I believe a motion to 20 strike his testimony. Your Honor overruled the motion. 21 However, in the course of several days of the 22 proceedings there were several comments made by the 23 attorney, the assistant attorney general as to 24 Mr. Dupree being unethical and that his testimony in 25 these proceedings would be unethical. OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2773 1 So, at this point we feel we're forced into a 2 position by the chilling comments of the State as to 3 unethical behavior and the threat with those comments, 4 I don't know what they would do in terms of filing a 5 Bar complaint or whatnot. So, we're forced into a 6 position where we are not going to call Mr. Dupree. We 7 stand on the arguments that we've made to this Court as 8 to why that would not violate the rules of ethics but 9 at this point those arguments would not prevent a 10 complaint from being filed. 11 So, with that being said, Mr. Dupree will not be 12 presented based on the chilling comments of unethical 13 behavior by the State. 14 THE COURT: Do you have other witnesses that you 15 might call? 16 MS. KEFFER: Right now, Your Honor, Doctor Heath 17 was our last witness that we intended to call in these 18 proceedings. I think Your Honor that, you know, the 19 State keeps saying that they're calling rebuttal 20 witnesses. However, I think that it is probably 21 witnesses in their, I'm going to say, in their case in 22 chief. We've gotten out of order, so -- 23 MR. NUNNELLEY: Actually, she's correct, Your 24 Honor. It would be case in chief rather than rebuttal. 25 MS. KEFFER: And so the Defendant would have an OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2774 1 opportunity to call rebuttal witnesses. I can't say 2 that without the State completing their case. 3 THE COURT: Sure. 4 So, 9:00 in the morning. 5 MR. NUNNELLEY: Very good, Your Honor. 6 THE COURT: We'll see you then. 7 MS. KEFFER: Your Honor, if I may just approach 8 and give you the courtesy copies. 9 THE COURT: Oh, sure. 10 (Evidentiary hearing was continued to July 22, 11 2007.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2775 1 C E R T I F I C A T E 2 STATE OF FLORIDA 3 COUNTY OF MARION 4 5 I, CONSTANCE MILLER, Stenographic Court 6 Reporter and Notary Public, State of Florida at Large, 7 do hereby certify that I was authorized to and did 8 stenographically report the foregoing proceedings taken 9 in the case of STATE OF FLORIDA vs. IAN DECO LIGHTBOURNE, 10 Case Number 81-170-CF, and that the foregoing pages, 11 numbered 2550 through 2774, Volume VII inclusive, constitute 12 a true and correct record of the proceedings to the best of 13 my ability. 14 I FURTHER CERTIFY that I am not a relative or 15 employee or attorney or counsel of any of the parties 16 hereto, nor a relative or employee of such attorney or 17 counsel, nor am I financially interested in the action. 18 WITNESS MY HAND this 25th day of July, 2007 at 19 Ocala, Marion County, Florida. 20 21 ______________________________ CONSTANCE MILLER 22 Stenographic Court Reporter State of Florida at 23 24 25 OWEN & ASSOCIATES P.O. BOX 157, OCALA, FLORIDA 34478 (352) 624-2258 _

2776 1 IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR MARION COUNTY 2 3 CASE NO.: 42-1981-CF-170 4 STATE OF FLORIDA 5 vs. Volume XVIII 6 IAN DECO LIGHTBOURNE, 7 Defendant. 8 ----------------------------------------------------- 9 PROCEEDINGS: Continued Evidentiary Hearing 10 Concerning lethal Injection (Diaz Issue) 11 BEFORE: Honorable Carven D. Angel 12 Circuit Judge Fifth Judicial Circuit 13 In and For Marion County, Florida 14 REPORTED BY: Noelani J. Fehr Stenographic Court Reporter 15 Notary Public State of Florida at Large 16 DATE AND TIME: July 22, 2007; 9:00 a.m., Sunday 17 PLACE: Courtroom 3A 18 Marion County Judicial Center Ocala, Florida 19 20 21 22 23 24 25 Owen & Associates (352) 624-2258 _

2777 1 APPEARANCES: KENNETH S. NUNNELLEY, Esquire BARBARA C. DAVIS, Esquire 2 CAROLYN SNURKOWSKI, Esquire Assistant Attorney Generals 3 Office of the Attorney General 444 Seabreeze Blvd., 5th Floor 4 Daytona Beach, Florida 32118 and 5 ROCK HOOKER, Esquire Assistant State Attorney 6 State Attorney's Office Building 19 NW Pine Avenue 7 Ocala, Florida 34470 8 SUZANNE KEFFER, Esquire ANNA-LIISA NIXON, Esquire 9 ROSEANNE ECKERT, Esquire NEAL A. DUPREE, Esquire 10 CAROLINE KRAVATH, Esquire Law Office of CCRC-South 11 101 NE Third Avenue, Suite 400 Fort Lauderdale, FL 33301 12 Attorneys for Defendant 13 MAXIMILLIAN J. CHANGUS, Esquire Office of General Counsel 14 Florida Department Of Corrections 2601 Blair Stone Road 15 Tallahassee, FL 34399-2500 Attorney for Department of Corrections 16 ALSO PRESENT: Gayle Watson, Judicial Assistant 17 18 19 20 21 22 23 24 25 Owen & Associates (352) 624-2258 _

2778 1 I N D E X 2 Page 3 Motions in Limine 2779 4 State's Witnesses Dr. Kris Sperry 5 Direct Examination (Mr. Nunnelley) 2783 Cross Examination (Mr. Dupree) 2821 6 Redict Examination (Mr. Nunnelley) 2860 Recross Examination (Mr. Dupree) 2871 7 Further Redirect Examination (Mr. Nunnelley) 2876 8 9 10 11 Certificate of Reporter 2878 12 13 14 15 16 17 18 19 REPORTER'S NOTE: Transcript continued to Volume XIX. 20 21 22 23 24 25 Owen & Associates (352) 624-2258 _

2779 1 MORNING SESSION 2 July 22, 2007 9:00 a.m. 3 (Thereupon, the Honorable Judge Carven D. Angel entered the 4 courtroom and the following proceedings were had:) 5 THE COURT: Okay. Good morning. Please be 6 seated. Okay. Good morning. We are here 7 resuming our hearing. Are we ready for the next 8 witness? 9 MR. NUNNELLEY: Either that or the pending 10 motions that the defense filed, your Honor. I 11 would prefer to get the motions dealt with so I 12 can kind of know what I've got to do, perhaps, 13 today. 14 THE COURT: Okay. Just a minute. Okay. 15 Let's see. All right. Let me reserve ruling on 16 the motion to leave the evidentiary hearing open. 17 We can consider that later. I'll reserve ruling 18 on that. Do you got some more? 19 MS. KEFFER: Yes. 20 THE COURT: Oh. 21 THE CLERK: You have a copy of those. 22 THE COURT: The same ones? 23 THE CLERK: Yes, sir. 24 THE COURT: Okay. 25 MR. NUNNELLEY: Judge, if I could be heard Owen & Associates (352) 624-2258 _

2780 1 with respect to one, for calling on the motion to 2 leave the evidentiary hearing open? 3 THE COURT: Okay. 4 MR. NUNNELLEY: Paragraph Seven beginning at 5 the bottom of Page 3 of the motion to leave the 6 evidentiary hearing open, we I think can -- well, 7 I'll give the Court a moment to review that 8 particular allegation. 9 THE COURT: Paragraph Seven? 10 MR. NUNNELLEY: Yes, your Honor. Beginning 11 at the bottom of Page 3. 12 THE COURT: Okay. 13 MR. NUNNELLEY: That claim in the motion can 14 at least arguably be construed as accusing one or 15 more of the State's witnesses of perjuring 16 themselves during the course of this hearing. I 17 intend to present a bit of evidence on that 18 particular assertion today. 19 THE COURT: Okay. 20 MR. NUNNELLEY: And I am going to, at the 21 conclusion of that, ask that this allegation be 22 stricken as impertinent and unsupported by any 23 evidence whatsoever. 24 THE COURT: Okay. Let's -- let's reserve on 25 that. Owen & Associates (352) 624-2258 _

2781 1 MR. NUNNELLEY: Certainly, your Honor. I 2 understand. I just wanted to call that to the 3 Court's attention that that is an issue that we're 4 going to have to -- that we're going to address. 5 THE COURT: Okay. That would be fine. Let's 6 see. Motion for testimony, I think that's sort of 7 similar to motion to leave evidentiary hearing 8 open, so I will reserve ruling on that. 9 MR. NUNNELLEY: Well, and your Honor, with 10 respect to the -- to that motion, I would point 11 out that yesterday extensive testimony was taken 12 by the defendant from Dr. Heath that was based 13 upon the transcript of the Governor's Commission 14 on the Administration of Lethal Injection. 15 And specifically out of that transcript 16 extensive reference was made to the testimony of 17 the medically qualified personnel and the 18 executioner. That testimony came in -- well, that 19 transcript was admitted over the State's hearsay 20 objection. 21 What the defendant wants in their motion for 22 the testimony -- for testimony from the medically 23 qualified team members and the executioners so far 24 as it relates to Diaz is already in the record 25 that got it in over the State's objection. And Owen & Associates (352) 624-2258 _

2782 1 they aren't entitled to present cumulative 2 evidence. They vouched for the transcript. It 3 came in. And now they've got what they want. 4 This motion has been mooted as far as Diaz is 5 concerned. 6 MS. KEFFER: May I respond to that? I would 7 like to -- 8 THE COURT: Let's reserve ruling on that. I 9 think we can address it all later. 10 MS. KEFFER: As long as I have the 11 opportunity to respond to that -- 12 THE COURT: Sure. 13 MS. KEFFER: -- because I don't agree with 14 those statements. 15 THE COURT: Sure. You will have an 16 opportunity to respond to it. 17 MS. KEFFER: Thank you. 18 THE COURT: The third is the judicial notice. 19 Does the State have any objection to that? 20 MR. NUNNELLEY: No, your Honor, with the 21 following caveat; so long as the State has the 22 opportunity to pre -- to submit and have accepted 23 by judicial notice other pleadings or materials 24 these case -- this case or cases that serves to 25 elucidate exactly what is going on. Owen & Associates (352) 624-2258 _

2783 1 These orders were entered on July the 11th, 2 as I understand it. And it's now eleven days 3 later. We've got these documents at about seven 4 o'clock on Saturday evening. I've had no 5 opportunity, because the Department of Justice is 6 not open on the weekend, to get any other 7 documents or anything else. As long as I can 8 submit anything else and it come in subject to 9 judicial notice without further proceeding being 10 necessary, I have no objection. 11 THE COURT: I'll grant that motion and also 12 grant the State's request. Okay. Call your first 13 witness. 14 MS. KEFFER: It's not -- I think we're in the 15 State's case, so. 16 MR. NUNNELLEY: The State calls Dr. Kris 17 Sperry, or recalls Dr. Kris Sperry. 18 THE COURT: Good morning, doctor. You were 19 previously sworn and your testimony remains under 20 oath. 21 THE WITNESS: Yes, sir. Thank you. 22 THE COURT: Proceed. 23 DIRECT EXAMINATION 24 BY MR. NUNNELLEY: 25 Q Dr. Sperry, tell us your name again for the Owen & Associates (352) 624-2258 _

2784 1 record, sir. 2 A Kris Lee Sperry. 3 Q And just to summarize, how are you employed, Dr. 4 Sperry? 5 A I'm employed as a forensic pathologist, as a Chief 6 Medical Examiner for the State of Georgia. 7 Q How long have you been a forensic pathologist, 8 doctor? 9 A I finished my training in December of 1985, so 10 almost twenty-two years now. 11 Q Have you been continuously engaged in the practice 12 of pathology or the practice of medicine throughout that 13 time? 14 A Oh, yes. 15 Q Dr. Sperry, let me ask you this; are you familiar 16 with the effect on the human body of potassium chloride in 17 an overdose level? 18 A Well, yes. In an acute situation where it is 19 injected intravenously, yes. 20 Q What is the effect of a -- of that sort of a dose 21 of potassium chloride on a human being? 22 A The effect is to rapidly stop the heart. 23 Sometimes it's either instantaneously or through the rapid 24 evolution of rhythm disturbances, electrical disturbances of 25 the heart that culminate in lethal, or basically, either Owen & Associates (352) 624-2258 _

2785 1 there's a rhythm disturbance as so that no blood is getting 2 to the brain or the heart stops completely. 3 Q Is the effect of potassium chloride on the human 4 heart the same mechanism that takes place when an individual 5 has what is commonly referred to as a heart attack? 6 A No. 7 Q How is it different, sir? 8 A All right. The effect of the potassium chloride 9 is a chemical effect upon the electrical conduction of the 10 heart such that the way that the heart muscle works with 11 the -- there's sodium and potassium that is utilized that 12 shifts very rapidly in and out of the heart muscle cells 13 that causes the heart muscle cells to contract. And if that 14 is disrupted in a chemical fashion with a high level -- or 15 high levels of potassium, this whole electrical conduction 16 aspect changes very rapidly. 17 In what is commonly termed a heart attack, what 18 occurs there is that in -- I would say in common parlance, 19 and also from a medical and pathologic perspective, the 20 cause of the damage to the heart and the symptoms and signs 21 that the patient is exhibiting is blockage, either severe 22 blockage or complete obstruction of one or more of the 23 arteries that supply blood to the heart. 24 And as a consequence when one of these blockages 25 occurs within one of the muscle -- within one of the Owen & Associates (352) 624-2258 _

2786 1 arteries, there is a part of the heart muscle that is 2 normally supplied by the blood coming through that artery 3 which is now severely limited or interrupted. And the term 4 that's used is ischemia, which is a medical term that means 5 inadequate flow, or lack of oxygen, lack of blood flow. 6 Q Can you spell that for the court reporter? 7 A Yes. It's i-s-c-h-e-m-i-a. As a consequence this 8 will very frequently cause pain. And the pain is sometimes 9 termed angina, or -- which is pain that comes from -- 10 presumably from the heart, although it's poorly understood. 11 But the mechanism, anyway, of the heart attack in common 12 parlance is completely different from chemical interruption 13 that a potassium chloride injection has upon the functions 14 of all the heart muscle itself. 15 Q And I would assume, Dr. Sperry, that as a part of 16 your medical practice over the years, you have had occasion 17 to be in attendance to a patient who was in the process of 18 dying? 19 A Oh, yes. 20 Q Based upon your observations, and experience, 21 training, and education, do you have an opinion as to 22 whether or not convulsions are common when a person is 23 dying? Or convulsions or seizures, I'm not sure if they're 24 the same thing. 25 A Well, yes, and this comes not only from my Owen & Associates (352) 624-2258 _

2787 1 attendance but also actually the work that I do as forensic 2 pathologist. Because the history that is obtained very 3 frequently in individuals who have sudden and unexpected 4 deaths from any type of reasons frequently include the 5 observation of -- of lay people, family members, bystanders, 6 even sometimes paramedical personnel, nurses, sometimes 7 doctors, that a seizure occurred. 8 And the presumption actually at the time is that 9 there must be something wrong with the brain, a hemorrhage, 10 or a stoke, or something like that, that caused the person 11 to have a seizure. But then during the course of my autopsy 12 examination I find that the person died of something else, 13 such as a heart attack, a blockage of the artery that 14 supplies blood to the heart that causes death of the heart 15 muscle and also causes a sudden rhythm disturbance and that 16 it will collapse. 17 And then as part of the dying process the brain 18 and the nerves -- the neurons that supply the different 19 muscles will begin to fire erratically again during the 20 dying process. And as a consequence this can cause 21 twitching and even full blown seizures that are mistakenly 22 interpreted as coming from some primary damage to the brain 23 when really the cause of death is somewhere else. 24 So the long and the short of it is, is that aspect 25 of dealing with the visual findings, visual observations of Owen & Associates (352) 624-2258 _

2788 1 others who are watching during the time when someone is in 2 the dying process, frequently include seizures that have 3 nothing do with the -- you know, with the brain itself other 4 than the fact that the brain is dying because of the 5 disease, or abnormality, or an injury somewhere else. 6 Q Now, if an individual is not breathing that 7 cause -- I mean, obviously, that means that oxygen is not 8 being taken in and carbon dioxide is not being exhaled, 9 correct? 10 A Yes. 11 Q And that process is -- or process or condition, I 12 suppose, is generally known as hypoxia, isn't it? 13 A Yes. Hypoxia means inadequate or lack of oxygen 14 getting into the body and then, thus, to the brain and 15 everywhere else. 16 Q Does a lack of oxygen supply to the brain 17 contribute to or cause the twitching, seizures, or 18 convulsions that you have described as a part of the dying 19 process? 20 A Well, yes. If a person cannot breathe, if their 21 breathing stops, then they are not taking oxygen, thus, into 22 their lungs and getting into their blood. And all of us as 23 human beings have a reserve, a short reserve of oxygen, 24 which allows us to hold our breath, and dive under water, 25 and swim for distances, and things like that. Owen & Associates (352) 624-2258 _

2789 1 But there comes a point where we have to breathe, 2 we have to bring in oxygen. And if that doesn't happen then 3 the brain begins to suffer first. It's probably -- it's 4 really the most sensitive organ in the body to a lack of 5 oxygen supply. 6 And as the oxygen drops in the body, in the blood, 7 because it's being consumed by all the cells in the body, 8 the brain itself starts to starve for oxygen, and then 9 ultimately within just a very short time, two to three 10 minutes, brain cells begin to die because of -- because of 11 their need for oxygen. 12 Q Now, Dr. Sperry, we've heard some testimony 13 yesterday that barbiturates such as Sodium Pentothal, sodium 14 thiopental -- well, let me back up. Thiopental sodium is 15 the chemical name for the anesthetic drug that is used in an 16 execution in Florida, isn't it? 17 A Yes. 18 Q Does that drug also have a trade name? 19 A Yes. 20 Q What is it? 21 A Well, Sodium Pentothal is the most common name. 22 And then whatever manufacturer -- there are many 23 manufacturers that actually supply their own names to a 24 drug. It's -- excuse me, it's been around for so long that 25 it's not proprietary, that it's not controlled only by, say, Owen & Associates (352) 624-2258 _

2790 1 one drug company. And so it's -- although, it's falling out 2 of favor and everything as far as clinical uses go, many 3 companies affix their own particular name to it, just a 4 brand name. 5 Q So thiopental sodium, sodium thiopental, Sodium 6 Pentothal and Pentothal are all the same thing? 7 A Yes. 8 Q And, Judge I just wanted to get that in the record 9 to make -- you know, to keep myself straight on that one. 10 Now, Dr. Sperry, we heard some testimony yesterday that 11 barbiturates such as Sodium Pentothal are effective -- 12 relatively effective, I suppose, anticonvulsant drugs. 13 First of all, what is an anticonvulsant drug? 14 A Well, an anticonvulsant drug is a drug that is 15 used to prevent, or ameliorate, or control seizures. 16 Q What can you tell us about the effectiveness of 17 Sodium Pentothal as an anticonvulsant? 18 A Well, it certainly has those properties, but 19 because of its nature and also the fact that it's relative 20 short acting that it really only has an action in the body 21 of about somewhere between fifteen and thirty minutes, more 22 or less. 23 It's really not appropriate for seizure control in 24 a clinical setting because patients who need to take seizure 25 medications to prevent them from having seizures need drugs Owen & Associates (352) 624-2258 _

2791 1 that will last for hours. And actually, there's another 2 barbiturate drug called phenobarbital that was used for, oh, 3 my, decades. It is a -- it is a barbiturate, but it's 4 longer acting. It acts for many, many hours. And that used 5 to be one of mainstay drugs to prevent seizures because it 6 lasted a long time, and patients could take it at convenient 7 intervals during the day and it would work. 8 Now, there's many other drugs that have evolved 9 since then, and phenobarb is not as commonly -- near as 10 common as it used to be. But -- so the long and the short 11 of it is, is certainly as a barbiturate drug Sodium 12 Pentothal has the capacity to prevent or ameliorate 13 seizures; but again, using it for that particular sole 14 reason is something that I don't think really is used -- 15 well, has been used in clinical settings just because it 16 doesn't last very long. 17 Q Now, in the context of an execution by lethal 18 injection as carried out in Florida with a five gram dose of 19 Sodium Pentothal, do you have an opinion as to whether or 20 not that dose would prevent the inmate from having seizures 21 or convulsions as he was dying? 22 A I don't know whether it would or not. I -- I 23 cannot say that it would -- could be reliably stated that 24 the Sodium Pentothal would prevent seizures from occurring. 25 Q Now -- excuse me. Now, moving to the various IV Owen & Associates (352) 624-2258 _

2792 1 access issues. We heard some testimony yesterday about the 2 establishment of an IV or intravenous line in the femoral 3 vein. And as I understand it, that procedure is carried out 4 in the groin area -- 5 A Yes. 6 Q -- correct? Now, how does one -- well, first of 7 all, what categories of medical personnel, category or 8 categories, either one, I suppose, would be the level of 9 training, education, qualification and certification to 10 place an IV into the femoral vein? 11 MR. DUPREE: Your Honor, objection on 12 predicate grounds. And also I think it's beyond 13 the scope of this witness's expertise as to what 14 he's been qualified for. 15 THE COURT: Overruled. You may answer. 16 THE WITNESS: Well, it will not solely be the 17 purview of just physicians. I mean, physicians, 18 physician assistants, nurse anesthetists, nurses, 19 especially RNs, paramedics, EMTs, all of those 20 individuals certainly could be trained and, in 21 fact, are trained in the insertion of catheters, 22 IV catheters, in the femoral vein region. And so 23 all of those individuals could do it as they would 24 have a need to do, and certainly could be trained 25 to do it. Owen & Associates (352) 624-2258 _

2793 1 BY MR. NUNNELLEY: 2 Q Are intravenous lines commonly placed in the 3 femoral vein during the practice of medicine? 4 A Oh, yes. Oh, yes. 5 Q Can you give us some examples in the medical 6 context of when an intravenous line would be inserted into 7 the femoral vein? 8 MR. DUPREE: Objection, your Honor, I 9 don't -- he's a pathologist. He has not been 10 qualified for general medicine, so I object to 11 this testimony. 12 THE COURT: Overrule the objection. 13 THE WITNESS: Well, I think -- I think 14 there's three basic categories, if you will, where 15 femoral lines would be placed in a medical 16 context. 17 First is during an emergency, where a patient 18 is, say, a heart attack victim, or has been in a 19 motor vehicle accident, or something like that, 20 where rapid access to a large vein to infuse 21 fluids and perhaps blood and blood products is 22 necessary in an emergency. So it is a way to get 23 a large caliber intravenous line in a large vein 24 in order to try to save the patient's life. 25 Secondly, it would be in an instance where an Owen & Associates (352) 624-2258 _

2794 1 individual has especially a long history of 2 chronic intravenous drug abuse, or a medical 3 condition that has created difficulties in being 4 able to actually insert IVs into the peripheral 5 veins, especially the arms. 6 Putting veins -- excuse me, putting IVs lines 7 in the feet is something that is, at least on a 8 routine basis, is relatively frowned upon just 9 because of the possibility of not only infection, 10 but inciting blood clots that can develop down in 11 the legs. And it's -- I would say it's more of a 12 last ditch sort of thing than anything else, I 13 mean in the feet. 14 But if the arm access veins, the superficial 15 veins, are damaged by intravenous drug abuse, or 16 diseases, or medical conditions that make them 17 unsuitable or very difficult or even impossible to 18 even insert IVs within, then the use of the 19 femoral vein is relatively common. 20 And then finally in individuals either 21 undergoing very -- you know, it depends on the 22 nature of the surgical procedure, or who are 23 extremely ill and need to have large -- well, a 24 large caliber intravenous access with also the 25 ability to use other different kinds of tubes for Owen & Associates (352) 624-2258 _

2795 1 monitoring purposes and things like that may have 2 a line inserted in the femoral area, in the 3 femoral vein, so it stay there for many days or 4 even weeks sometimes and minimize trying to find 5 veins in other parts of the body. 6 BY MR. NUNNELLEY: 7 Q Now, we heard also some testimony yesterday that 8 there's, you know, some discussion between whether or not a 9 fem -- a femoral vein intravenous line is a central line or 10 something else. And I don't want to get into that. But an 11 intravenous line that is inserted into the subclavian vein 12 is most definitely a central line, correct? 13 A I think -- you know, and I would say in at least 14 the common way that physicians utilize the semantics in 15 these areas this will -- a subclavian line would be central 16 because actually the end of the line is very, very proximate 17 to the heart. And the heart is the landmark, if you will, 18 to define central versus peripheral. 19 Q Show Judge Angel, if you would, where a subclavian 20 line is placed, if you would, sir. 21 A Sure. The subclavian means below -- or sub means 22 below, and clavian means the clavicle or the collarbone. So 23 a subclavian line actually goes in the collarbone, goes to 24 the shoulder to the breastbone (indicating). And the line 25 actually is inserted just underneath the collarbone because Owen & Associates (352) 624-2258 _

2796 1 the subclavian vein actually travels immediately underneath 2 of the collarbone. 3 And so in doing so, actually inserting a line, the 4 person doing the insertion will locate where the collarbone 5 is, anesthetize the area with Novocain and then insert a 6 syringe with a needle, or a special needle with a cannula, 7 and aim actually towards the heart going just under the 8 collarbone, right about the area where I'm pointing to 9 (indicating). 10 And then when the needle actually goes into the 11 subclavian vein a little flash of blood is seen, and the 12 line, the tubing itself, can be fed into the vein. So it's 13 just underneath the collarbone. You can't get to it from -- 14 except by going underneath the collarbone. 15 Q What are some of the potential complications that 16 can occur when a subclavian line is being placed? 17 A The most common complication is actually nicking 18 the top of the lung because in the area where we're speaking 19 about where the subclavian vein is located this is just on 20 top of the actual chest cavity, or the space that the lung 21 sits in. 22 And probably the most common complication while 23 inserting a subclavian line is to have the needle go into 24 actually the chest wall. It may miss the vein, or go 25 through the vein, and then nick the lung and cause the lung Owen & Associates (352) 624-2258 _

2797 1 to partially collapse most of the time. Sometimes it can be 2 more severe than that. But it depends on the hands of the 3 person doing it, and the practice, but having a partial 4 collapse of the lung is not rare at all. Perhaps even five 5 to ten percent of the time, so it's not uncommon. 6 So it's actually standard after a subclavian line 7 is put in to take the patient and do a chest x-ray to make 8 sure that the line is where it's supposed to be and the lung 9 has not been partially collapsed. 10 And the second complication, which is much less 11 common but which yet can occur, is hemorrhage or bleeding. 12 We are talking about large vessels. And if the needle 13 itself, again, goes through the vein, or tears the vein, or 14 it goes through into the top of the chest cavity, actually 15 blood can start to leak out and even go into the chest 16 cavity and fill up the chest. And so the person can -- I 17 have personally investigated and evaluated individuals who 18 have died because of the bleeding, there was abnormal 19 bleeding that went into the chest cavity. 20 And the final complication, actually, is bleeding 21 more down towards in the area of the heart itself, where the 22 line, or during the insertion of the line, damage is 23 inadvertently created around the heart or within the sac 24 that surrounds the heart, and so bleeding can occur in those 25 tissues or even around the heart. Owen & Associates (352) 624-2258 _

2798 1 Q When bleeding into the chest cavity occurs what 2 name is applied to that, or given to that, condition? 3 A The name, that's called a hemothorax. Thorax 4 means chest, and in this case refers to the chest cavity. 5 And hemo simply means blood. So hemothorax, or blood in the 6 chest. 7 Q If the top of the lung is nicked causing the lung 8 to partially collapse what name is given to that condition? 9 A That is called a pneumothorax. And pneumo refers 10 to lung or breathing, and again thorax refers to chest. And 11 so that is the term that is given to a partial collapse of 12 the lung. 13 It's like basically a small leak in a balloon, and 14 the balloon begins to collapse a little bit. That's a -- 15 that's the best analogy I can come up with. But the lung is 16 essentially like a balloon but with a billion air spaces. 17 Q Have you reviewed Florida's lethal injection 18 procedures dated May 9, 2007? 19 A Yes. 20 Q And in those procedures there is some -- there is 21 reference made to a cut down procedure; do you recall that? 22 A Yes. 23 Q Can a cut down procedure be performed to access 24 the femoral vein? 25 A Yes. Owen & Associates (352) 624-2258 _

2799 1 Q Do you have a judgment as to how often it is 2 necessary to perform a cut down to access the femoral vein 3 as opposed to how often the femoral vein can be accessed 4 with a standard percutaneous intravenous line? 5 MR. DUPREE: Again, objection, your Honor. 6 Again, beyond the -- beyond the scope of his 7 expertise. 8 THE COURT: Overruled. You may answer. 9 THE WITNESS: Well, no, I don't just -- 10 actually, and that's why I was thinking a bit 11 because I -- I definitely have seen it both ways. 12 I mean, I don't mean hundreds, perhaps thousands 13 of times in bodies that I have examined who have, 14 you know, received medical therapy of one sort of 15 another. 16 And, you know, it def -- it clearly even 17 today is done either way, through just a -- 18 through an insertion of a needle or through a cut 19 down. How often, though, or what frequency, one 20 procedure is done as compared with another in 21 clinical setting, I don't -- I don't -- I 22 personally don't have an answer for that, because 23 that's just not what -- the sort of practice that 24 I engage in myself now. 25 Owen & Associates (352) 624-2258 _

2800 1 BY MR. NUNNELLEY: 2 Q What kind of potential complications can result 3 from attempting to insert a percutaneous femoral line -- 4 percutaneous -- percutaneous femoral vein intravenous line? 5 A The most common complications, frankly, are 6 related to bleeding. And also -- well, not only bleeding. 7 The same essential complications always exist with any kind 8 of insertion of a percutaneous line, or a needle with a 9 cannula through the skin. 10 That is, you can nick the vein and cause it to 11 bleed, start bleeding out into the soft tissues, or you can 12 perforate through the vein and result in the same sort of 13 problem where there's localized bleeding or hemorrhage 14 that -- that also interferes with the proper placement of 15 the catheter. 16 That is, you may not be able to know that the 17 catheter or the tube is actually inside of the vein where it 18 needs to be. Or it may be inside the vein where it's 19 supposed to be, but because of associated damage to the vein 20 that has occurred during the insertion procedure there's 21 bleeding, as well. 22 And also because the vein is right beside the 23 femoral artery, then the femoral artery may be inadvertently 24 punctured or torn during the placement or the insertion of 25 the catheter and the needle just by virtue of the fact that Owen & Associates (352) 624-2258 _

2801 1 the vein and the artery are very close together. So 2 that's -- you know, there's -- and then, again, that -- the 3 puncture or injury to the femoral artery can produce very 4 extensive, very severe, localized bleeding right in that 5 area. 6 Q Are the problems that you identified that exist 7 with inserting a subclavian intravenous line also present in 8 the context of a femoral vein intravenous line? 9 A Not the anatomic problems. The problem of 10 abnormal bleeding is going to exist anywhere, abnormal or I 11 would say inappropriate bleeding around the vein, or within 12 the soft tissues around the vein, or around any vascular 13 structure are going to exist in the subclavian area as well 14 as the femoral area. 15 However, the importance about the subclavian area 16 is that, as I mentioned earlier, this vein is in direct 17 proximity, it is right besides the upper part of the chest 18 cavity, both on the right and the left. The lung resides 19 there, and also the heart and other major vascular 20 structures, major large vessels are very, very nearby. It's 21 kind of like what is called spaghetti junction up in 22 Atlanta, where there's four different interstates that all 23 come together. That's what we're dealing with up in the 24 chest area. 25 In the femoral area there are no of the vital -- Owen & Associates (352) 624-2258 _

2802 1 vital organ in immediate proximity, so although bleeding 2 certainly can be an unexpected complication, nonetheless 3 injure to the lung, collapse of the lung, bleeding within 4 the cavity that the lung resides, or bleeding in and around 5 the structures and tissues that surround the heart are not 6 going to occur with a femoral artery insertion. 7 Q Is the same sort of catheter used for both a 8 subclavian intravenous line and a femoral intravenous line? 9 A They certainly can be. And again, it's really -- 10 it depends on what the desired outcome is, or what the 11 purpose is for placing the line. As I said in emergent 12 procedures where the purpose is to try to get larger -- or 13 get access to a large vein so that large amounts of fluid, 14 blood or blood products could be administered to the 15 patient, the types of tubing that are used, the cannulas are 16 basically the same. 17 In more complicated situations, for therapeutic 18 monitoring, anesthesia, surgery, there's a whole array of 19 different types of tubes that are used, you know, for 20 totally different things. 21 Q Describe for Judge Angel, if you would, the 22 process that one goes through to place a femoral intravenous 23 line, how do you go about doing that? 24 A All right. Well, the key really is knowing that 25 the -- Owen & Associates (352) 624-2258 _

2803 1 MR. DUPREE: Objection, your Honor, 2 predicate. This witness has already testified 3 that he hasn't done an active medical practice in 4 twenty-five years, so I think there's an improper 5 predicate for this question. He's a -- he's a -- 6 he has been qualified as a pathologist. And I 7 think there's a predicate series of questions that 8 needs to be asked as to how often he's done this 9 to give his opinion on it. 10 THE COURT: Overruled. You may answer. 11 BY MR. NUNNELLEY: 12 Q How many femoral IV lines have you placed, Dr. 13 Sperry? 14 A Well, in living people probably about a hundred to 15 a hundred and fifty, I imagine, over the course of the time 16 when I was engaged in clinical practice. Now -- so, you 17 know, qualified -- or limiting that to living people. In 18 deceased individuals, I mean, I don't know how many 19 thousands of times I have drawn blood from the femoral area. 20 Q Okay. So now with that predicate, or that 21 background, describe for Judge Angel how you go about 22 setting up a femoral intravenous line in a live person. 23 A Okay. Well, you -- the artery -- because the 24 artery and the vein run side by side the artery actually is 25 the landmark, because you can feel a pulse in the artery. Owen & Associates (352) 624-2258 _

2804 1 And it's about -- in the femoral area, it's about the size 2 of my little finger. It's relatively large. 3 And with feeling and palpation you can locate 4 where the artery is because you can feel the pulse. And 5 then the key is to go adjacent to the -- insert the needle 6 adjacent to the artery alongside where the vein is going to 7 be located, sort of staying away from the artery and then 8 going right beside it to go into the vein. 9 And then the insertion is like any other 10 intravenous line, is going carefully and inserting and 11 watching for the flash of blood. And then once that occurs 12 then carefully threading the catheter down into the vein and 13 removing the needle itself. 14 Q Doctor, in general terms tell us, if you would, 15 the qualify -- the qualification in terms of education, 16 credentialing, certification, training and experience that 17 an individual needs to have to establish a peripheral IV, 18 for example, an IV placed in the elbow, or the antecubital 19 fossa? 20 MR. DUPREE: Objection, your Honor, again 21 beyond the scope. This man does not know about 22 qualifications and procedures. There's no 23 predicate for this. 24 THE COURT: Overruled. you may answer. 25 THE WITNESS: All right. That's -- Owen & Associates (352) 624-2258 _

2805 1 essentially you can train -- well, there are what 2 are called IV techs who are technicians that 3 actually do not have nursing licenses or nursing 4 degrees, but they are trained specifically to 5 place intravenous lines, such as in the 6 antecubital fossa. 7 That's all that really that they do is place 8 peripheral IVs, but that -- they spend all of 9 their time doing that in hospital situations. So 10 that is -- I guess you can say it's perhaps the 11 ground level of individuals who do not have an 12 actual licensure or formal certification but have 13 received specialized training in just the 14 placement of peripheral IVs and that's what they 15 do. 16 And then above that, LPNs, RNs, and working 17 into more specialized areas of medical personnel, 18 up to an including physicians. So, you know, 19 those individuals, obviously, have their own 20 licensing and certifications involved, but the 21 placement of intravenous lines in and of itself is 22 something that does not necessarily require even a 23 special license or certification, only training. 24 BY MR. NUNNELLEY: 25 Q Is placing an intravenous lane in the antecubital Owen & Associates (352) 624-2258 _

2806 1 fossa, or a peripheral intravenous line, something that one 2 gains skill in through practice and repetition? 3 A Absolutely. 4 Q Well, what sort of person by virtue of training, 5 credentialing, education, experience would be qualified or 6 allowed, perhaps, to place an intravenous line by using a 7 cut down procedure? 8 A That would -- again, there are nonmedical, that is 9 nonphysician personnel, who are trained to do that. And I 10 think that would get more into actually like individual 11 hospitals, say, the requirements that they have. Because it 12 is more of an invasive procedure because it requires 13 administration of local anesthesia and making an incision 14 into the area and closing that once the -- or closing it 15 sufficiently enough, anyway, once the vein is located and 16 the IV is achieved. 17 But then at the same time, as I said, it doesn't 18 require a physician. It requires more training in order to 19 do that. And there are certainly nonmedical or nonphysician 20 personnel who are trained to do that, and do it routinely. 21 Q Doctor, we've heard some testimony yesterday from 22 Dr. Heath about what he was calling a piggyback procedure in 23 IV treatment. What is -- what does that mean, sir? 24 A Well, a piggyback means that there is an 25 intravenous line, or a bag, that is established with fluid Owen & Associates (352) 624-2258 _

2807 1 going through an IV line into a patient. And then other 2 medications or drugs are in a separate bag that is hung 3 adjacent to the primary bag and feeds into a side port that 4 then goes into the main line into the patient. 5 Q Is there any functional difference between hanging 6 an IV bag and feeding it through the port, the side port, 7 and -- well, let me ask you this, first of all. There would 8 have to be a tube -- would there have to be a tube between 9 the small IV bag into the main IV line? 10 A Correct. It's a -- it's a juncture. It's another 11 conduit that feeds into and connects with the main IV line. 12 Q And I'm showing you the demonstrative aid -- let 13 me find it. It would be on the side I'm not looking at -- 14 the State's Demonstrative Aid 1. And I'm showing you what 15 is an IV set of tubing. 16 Show Judge Angel, if you would, where a piggyback 17 setup would be established, sir. 18 A Yes. This is the main chamber that is plugged 19 into the bottom of the IV bag (indicating), so the bag of IV 20 fluid is going to sit right here (indicating), and this will 21 be poked into the bottom. 22 This -- well, this feeds into a main line as I 23 showed you a couple of days ago, or perhaps it was 24 yesterday, I don't remember now, but there's little values 25 that's going to be used to adjust the flow. Owen & Associates (352) 624-2258 _

2808 1 Now, there is a sideline which is hooked into the 2 main IV line at this juncture. And this side port is the 3 piggyback, if you will. And that's exactly -- the piggyback 4 means just like if you were a kid, one is riding on top of 5 the other. And with this side port a syringe could be 6 inserted, or an IV bag of antibiotics could be hung in a 7 clinical situation. So the main IV line is just feeding 8 fluid into the patient, but medications of one sort or 9 another are being administered through this side port or the 10 piggyback that all feed into the main conduit that go into 11 the patient. 12 Q Would an extension -- an extension piece of 13 tubing -- hang on, Dr. Sperry, it's hung up on the side 14 here. 15 A I'm stepping on it. There you go. 16 Q Would an extension tube, such as this one that's 17 on State Demonstrative Aid 1, be used in setting up a 18 piggyback? 19 A Sure, that's why they exist. That's why they're 20 manufactured. 21 Q Is there any functional difference between hanging 22 an IV bag of medication off the piggyback and pushing drugs 23 through a syringe through the side port in the same fashion? 24 A There's no functional difference, no. 25 Q Are the various extensions and ports on the IV Owen & Associates (352) 624-2258 _

2809 1 tube -- let me show you this -- let me show you this again. 2 How many side ports are on this tube? And we're getting 3 this hopelessly tangled up. 4 A Speak for yourself. 5 Q Yeah, I know. I'm just a lawyer. How many side 6 ports are on this -- this particular set of tubing? 7 A This particular one actually has three altogether. 8 Q Are those placed -- and those are placed at 9 various points in the tubing? 10 A Yes. Here is (indicating) the point where this 11 hooks into the bag. And here's the first side port, which 12 happens to have an extension already hooked onto it. A 13 little farther down just below the value control or the flow 14 control is another side port. 15 And then farther down, maybe about eight inches 16 away from where it would go into the patient, is yet another 17 side port. So there's actually the capacity to hook on to 18 as many as three different adjacent piggybacks, if you will, 19 to deliver medications, drugs, or whatever was necessary, or 20 other fluids. 21 Q Is it set up in that fashion for convenience, 22 basically? 23 A Well, for convenience, and it's purposeful. There 24 are times, depending on what the treatment is that a patient 25 is undergoing where more than one medication may be needed Owen & Associates (352) 624-2258 _

2810 1 to be administered at one time. 2 And so in this way the fact that are three 3 different side ports, this just allows the ability to 4 deliver multiple things, multiple medications, or drugs, or 5 fluids at one time without -- and just have it all going 6 into one IV line. It eliminates the need to have multiple 7 IV sites in a patient. 8 Q Okay. And this is standard equipment that's 9 commonly used? 10 A Oh, yes. 11 MR. NUNNELLEY: For the record, I'm showing 12 counsel for defense State's Exhibit 8N and X. 13 MR. DUPREE: (Nods head affirmatively.) 14 BY MR. NUNNELLEY: 15 Q Dr. Sperry, I am showing you what is in evidence 16 as State's Exhibit 8X. Take a look at that photograph and 17 tell me if you remember seeing it at your previous 18 testimony? 19 A Yes. 20 Q Directing your attention to the area below the 21 clock -- 22 A Yes. 23 Q -- in relatively the center of picture, does that 24 appear to be a mirrored window? 25 A Yes. Owen & Associates (352) 624-2258 _

2811 1 Q Do you see -- in your opinion is the use of the 2 mirrored window, or a one-way mirror as it's been 3 represented in the testimony, present a medical concern of 4 any sort? 5 A No. In and of itself, no. 6 Q Are issues of transparency of the execution 7 process matters that are medical in nature? 8 A I would not consider them to be, no. 9 MR. NUNNELLEY: And for the record, I'm 10 showing defense Exhibit 8 double C, and 8Z, as in 11 zebra. 12 BY MR. NUNNELLEY: 13 Q Dr. Sperry, I am showing you what are in evidence 14 two photographs, 8 double C and 8Z. Would you take a look 15 at those pictures for me, sir? 16 A Yes. 17 Q Do you remember seeing those photographs when you 18 testified previously? 19 A Yes. 20 Q Do they appear to you to be two different views of 21 the same area of the execution facility? 22 A Yes. 23 Q Now, directing your attention to the white metal 24 object, or shiny metal object in the middle -- relatively 25 middle of those photographs, do you recognize that to be the Owen & Associates (352) 624-2258 _

2812 1 syringe holding apparatus, right? 2 A Yes. 3 Q Do you see any problems from a medical standpoint 4 with using a device to hold the syringes that are used 5 during the course of an injection -- an execution by lethal 6 injection as opposed to the executioner holding the syringe 7 in one hand and pushing the plunger with the other? 8 A No. 9 Q Do you have an opinion as to whether or not using 10 a syringe holder such as this would prevent the individual 11 pushing the syringe from feeling the back pressure from the 12 injection? 13 MR. DUPREE: Again, your Honor, I have an 14 objection, also, on predicate grounds. I have no 15 idea if this man has ever even used a pro -- one 16 of these things before. 17 MR. NUNNELLEY: Well, Judge, his expert 18 testified to this yesterday, and he certainly has 19 never used one, either, as far as we know. 20 THE COURT: Overruled. You may answer. 21 THE WITNESS: No, I don't see that the 22 utilization of a syringe holding device like this 23 to anchor the syringe while the plunger is pulled 24 would interfere with the ability of the person who 25 is pushing the plunger to appreciate the tactile Owen & Associates (352) 624-2258 _

2813 1 sense of resistance and gauge the injection 2 process. 3 BY MR. NUNNELLEY: 4 Q Now, Dr. Sperry, I'm showing you what is part of 5 State's Demonstrative Exhibit 1 A. Do you recognize that, 6 sir. 7 A Yes, it's a sixty cc syringe with a blunt needle 8 looked into the hub. 9 Q And when one pushes that syringe, pushes the 10 plunger, where is the -- any back pressure going to be felt 11 by the operator of that syringe? 12 A In the thumb. Primarily the thumb and through the 13 hand of the person doing the pushing. I mean, the thumb is 14 the part of our body that would be utilized in pushing the 15 plunger. And so resistance or appreciation of back pressure 16 would be felt, again, through the nerve endings in the thumb 17 and the hand. 18 Q Would back pressure be felt in what, I guess, you 19 would call the barrel of the syringe? 20 A No, because the barrel really -- say if this is 21 being done in a conventional fashion just with hands, the 22 one hand would steady it while, again, the other hand would 23 be utilized in pushing the plunger. But the back pressure 24 is felt through the process of pushing the plunger, not 25 through the process of just holding the barrel of the Owen & Associates (352) 624-2258 _

2814 1 syringe alone. You really couldn't feel anything like that. 2 Q And it would seem to me that if you were -- if you 3 were hold -- holding the syringe in one hand and pushing it 4 with the other that you could actually exert greater force 5 by pulling back? 6 MR. DUPREE: Objection, your Honor, leading 7 and he's testifying. 8 THE COURT: Overruled. You may proceed. 9 BY MR. NUNNELLEY: 10 Q Would it be possible if one was holding the 11 syringe to perform an injection with it, a syringe such as 12 this sixty cc. syringe, to pull back with the hand holding 13 the barrel and push with the thumb at the same time? 14 A Yes. 15 Q And that -- would that result in greater force 16 being applied to the chemicals coming out of the blunt 17 needle? 18 A In the way that you're describing it; that is, 19 using one hand to pull back while the other hand the thumb 20 is pushing forward, yes, that would have the effect of 21 increasing the pressure that's been manifested in the 22 process of pushing the chemicals through the needle itself. 23 Q Would it be possible to do that using the syringe 24 holding device shown in the photographs, I'm sorry, 8Z and 8 25 double C? Owen & Associates (352) 624-2258 _

2815 1 A Not in the way, I mean, the syringe itself was 2 locked into or placed into the -- the holding device as the 3 anchoring device as is illustrated in these exhibits, then 4 although the hand itself, that is the other hand, might be 5 placed on the syringe, I could see that, just for steadiness 6 purposes. The syringe itself is not, you know, moving back 7 and forth, and thus the -- the opposite hand or the 8 non-plunger hand is not going to be doing anything except 9 just steadying the barrel of the syringe itself. 10 Q For the record I'm returning the photographs which 11 is Composite 8 to the clerk and the syringe is back in the 12 box. Now, Dr. Sperry, are high resolution type cameras used 13 in the medical context that you're aware of? 14 A In the medical context? 15 Q Yes. 16 A Only usually during intraoperative procedures or 17 what is called endoscopy where tubes go down the stomach or 18 go up into the large intestine to actually look and inspect 19 for disease processes. But beyond that, you know, the high 20 resolution cameras really, I would say, are used only in 21 medical procedures, or primarily in medical procedures, to 22 gain more visual ability to enlarge areas that cannot be 23 seen well with the naked eye alone. 24 Q And doctor, I'm showing you what is in evidence as 25 Joint 2, the May 9; have you seen this document before, sir? Owen & Associates (352) 624-2258 _

2816 1 A Yes, I have. 2 Q Have you reviewed that document? 3 A Yes. 4 Q Have you reviewed the definitions contained within 5 Joint Exhibit 2? 6 A Yes. 7 Q And what do you recognize Joint Exhibit 2 to be? 8 A I recognize Joint Exhibit 2 to be a document 9 prepared by the Florida Department of Corrections that 10 outlines the execution by lethal injection procedures that 11 was signed on 9 May of 2007 and is meant to be effective for 12 executions after that date. 13 Q Directing your attention to the first page of 14 Paragraph One under the definition section, have you read 15 that component or that portion of the execution procedures? 16 A Yes. 17 Q And what does Paragraph One of the execution 18 procedures purport to define? 19 A Its defines the members of what is termed the 20 execution team. 21 Q Now, Dr. Sperry, your job as the Chief Medical 22 Examiner for the State of Georgia, in addition to being a 23 working pathologist you also have administrative 24 responsibilities; is that correct? 25 A Oh, yes. Owen & Associates (352) 624-2258 _

2817 1 Q Having reviewed document -- or Paragraph One of 2 the execution procedures effective May 9, 2007, do you have 3 an opinion as to whether or not the definition of the 4 execution team adequately defines the qualifications 5 necessary for the execution team members? 6 MR. DUPREE: Objection, your Honor. Again, 7 he has not been qualified as a lethal injection 8 protocols expert. There is beyond the scope of 9 his knowledge. This is just general testimony, it 10 doesn't require any expertise, and his opinions to 11 this, about administrative procedures in the 12 prison, is completely irrelevant. 13 THE COURT: Overruled. You may answer. 14 THE WITNESS: Yes. I think that this 15 designation here briefly but succinctly outlines 16 the nature of, I would say appropriate -- or 17 selection of appropriate individuals to perform 18 designated aspects of the execution process. 19 BY MR. NUNNELLEY: 20 Q And doctor, let me ask you this, is -- we're done 21 with that. Let me give that back to the clerk before she 22 gets after me. Is sodium thiopental a fat soluble 23 substance? 24 A Yes. 25 Q Is pancuronium bromide, the second drug -- well, Owen & Associates (352) 624-2258 _

2818 1 pancuronium bromide is a paralytic, right? 2 A Yes. 3 Q And the pancuronium bromide is the second drug 4 administered in -- well, under Florida's lethal injection 5 procedures; is that right? 6 A Yes. 7 Q It's typically the second drug administered in 8 lethal injection executions, isn't it? 9 A Yes. 10 Q Is pancuronium bromide, the paralytic drug, fat 11 soluble or is it some other type of substance? 12 A I don't recall that it's fat soluble. I think 13 it's primarily plasma bound. I mean, it's -- it's -- it 14 stays within the blood stream, it is bound to plasma and 15 proteins, as I recall. 16 Q If -- and let me ask you this and give you a 17 hypothetical. You're familiar with the facts and 18 circumstances of the Angel Diaz execution, are you not? 19 A Yes, generally. 20 Q If we assume that five grams of sodium thiopental 21 were injected into Mr. Diaz's arm, and they went in -- all 22 went in subcutaneously, that the sodium thiopental injection 23 was followed by a saline flush, and was then followed by the 24 injection of pancuronium bromide, the paralytic; do you have 25 an opinion as to which of those two drugs would have taken Owen & Associates (352) 624-2258 _

2819 1 effect on Mr. Diaz first? 2 A Well, based upon the observations that were made 3 that I -- as I understand it, then the sequences within the 4 limits of what documentation exists my opinion is that the 5 Sodium Pentothal took effect first. 6 Q What anecdotal or observational information do you 7 base that on, sir? 8 A There's progressive observation or I would say -- 9 rephrase that, observation of progressive sedation along 10 with it -- it's certainly inartful, but I guess it's 11 appropriate -- an absence of paralysis. That is, he -- 12 there is documented evidence of moving of his body, of his 13 face, of his head, progressively during the course of what 14 appeared to be progressive sedation to the point of snoring. 15 But at no time during that progression was he 16 completely paralyzed; that is, his was moving. So that 17 would mean that the Sodium Pentothal is exerting its 18 anesthetic or -- or effect, but, yet, the Pavulon is not 19 paralyzing him. 20 Q Are you aware that at least one witness wrote down 21 his observations after the execution and specifically noted 22 that Mr. Diaz was never paralyzed, or not paralyzed? 23 A Yes. 24 Q Is that consistent with the testimony that you 25 have given about the sodium thiopental having taken effect Owen & Associates (352) 624-2258 _

2820 1 before the pancuronium bromide? 2 MR. DUPREE: I am going to object to this. 3 Can you specify which person it was, or who it 4 was, or where this came from? 5 MR. NUNNELLEY: Could you find witness Dale 6 Recinella's notes, please, ma'am? They were 7 introduced very, very early in the proceeding. 8 THE CLERK: Do you know if that's an exhibit? 9 MR. NUNNELLEY: I don't know what the number 10 of it is. I would imagine it's a defense exhibit. 11 BY MR. NUNNELLEY: 12 Q But I will represent to you while she's looking 13 for this that the witness, Dale Recinella, was seated on the 14 front row of the witness chamber and has testified from 15 notes that he took during -- or rather after the execution 16 that Mr. Diaz was not paralyzed. Is that consistent with 17 your testimony that the thiopent -- the sodium thiopental 18 took effect before the pancuronium bromide? 19 A Yes. 20 Q Dr. Sperry, let me ask you this; how many 21 autopsies have you performed on inmates that have been 22 executed by lethal injection? 23 A I, myself, at least three or four. The last one I 24 did myself was about approximately three weeks ago when the 25 State of Georgia executed a condemned inmate. And then Owen & Associates (352) 624-2258 _

2821 1 essentially all that have been done in the last ten years I 2 have supervised and reviewed in my capacity as Chief. 3 MR. NUNNELLEY: Judge, if I could have just a 4 minute to consult with counsel. Judge, I'll 5 tender the witness for cross examination. 6 MR. DUPREE: May I have just a moment, your 7 Honor? 8 CROSS EXAMINATION 9 BY MR. DUPREE: 10 Q Dr. Sperry, I want to start with the apparatus 11 first. 12 A Sure. 13 Q And I'm showing you the apparatus that 14 Mr. Nunnelley just showed you which is part of, I guess, 15 State's 1? 16 THE CLERK: Demonstrative exhibit. 17 BY MR. DUPREE: 18 Q Demonstrative Exhibit 1. I don't want to hurt 19 anything here, so I'll let you go ahead -- 20 A Sure. 21 Q -- and take it apart there. 22 A (Complies.) 23 Q Okay. Now, can you show the judge which part of 24 it goes into the saline bag? 25 A Sure. This part right here (indicating) that is Owen & Associates (352) 624-2258 _

2822 1 connected to the drip chamber that we've talked about. 2 Q And this part here is where the drugs would be 3 injected? 4 A Correct. 5 Q Now, is that your understanding of the apparatus 6 that is used in Florida for lethal injections? 7 A Yes, that's my understanding that this is the 8 basic setup that is utilized. 9 Q Now, Dr. Heath testified yesterday that he had not 10 seen anything like this before, and that this part, the part 11 you were calling the side port here with the long extension 12 of tubing actually was removed. And when he's using these 13 he injects directly into this slot right here rather than 14 use this length of tubing and inject at the top of the 15 tubing. Did you hear that testimony? 16 A Yes. 17 Q Is Dr. Heath wrong that this could be done, that 18 he can inject actually into here? 19 A Well, of course not. I mean, he's -- he's 20 engaged, obviously, in the act of induction and maintenance 21 of anesthesia. And I would say as a consequence he is 22 working with these lines, and working with syringes, and 23 based upon his practice, his experience, and his technical 24 abilities I would not at all say he was wrong. That is how 25 he personally does that for, you know, to -- well, to Owen & Associates (352) 624-2258 _

2823 1 effectuate what he's doing. 2 Q Okay. And you also heard Dr. Heath testify 3 yesterday that this particular portion of the tubing, the 4 part that I'm referring to as a side port (indicating), 5 actually has a volume of how -- do you know how much the 6 volume of this tubing is right here (indicating)? 7 A It holds four milliliters. 8 Q Four milliliters. So when you're injecting 9 something into the side port there's an additional four 10 milliliters of tubing before you actually reached the main 11 line that is going to be put into the -- in the prisoner; is 12 that correct? 13 A Yes, four milliliters, there's a volume within the 14 tubing, yes. 15 Q Okay. You also -- did you also hear the testimony 16 yesterday of Dr. Heath that with regard to -- with regard to 17 the tubing and the attachments of the tubing that there 18 could be problems associated with it in terms of injection 19 drugs. You're familiar with the term Luer Loks? 20 A Yeah, yeah. 21 Q Okay. And that there's -- and this particular 22 juncture, adding a particular juncture, would that in fact 23 add a little bit more of a concern that there might be 24 leakage at that one particular site by using this extension? 25 This is another area where it could actually leak; is that Owen & Associates (352) 624-2258 _

2824 1 correct? 2 A Yes, and certainly in clinical situations. I 3 mean, any -- anytime that there is tubing utilized where 4 there's a junction and some other tubing is hooked into it 5 for whatever purpose in medical therapy, especially in 6 clinical situations, the possibility that a leak might occur 7 at that juncture, I mean, is real. 8 Q Okay. So we've got the saline -- you've got the 9 insertion of the saline. 10 MR. DUPREE: Sue, can you come up? 11 MS. KEFFER: I am going to be a saline pole? 12 MR. DUPREE: You going to be my -- she's the 13 IV pole. She's going to be the IV pole, Judge. 14 BY MR. DUPREE: 15 Q So when you got -- when you got this, and I am 16 just going to -- you can beep every few seconds if you'd 17 like -- this will go in. And you've said already that 18 this -- this particular apparatus already had how many 19 junctions? 20 A There's three total built into it. 21 Q Built in? And that's in addition to where the 22 saline bag goes; is that correct? 23 A Well, that's not really a junction, that is just 24 where it goes into the saline, but then there are three side 25 ports along the length of this tubing that are manufactured Owen & Associates (352) 624-2258 _

2825 1 in this way. 2 Q Okay. And do you know if this is the length of 3 tubing that is going to be used in the next execution in 4 Florida? 5 A Well -- okay. If this is what the standard 6 equipment is, then I would assume that this is going to be 7 used in the next one. I can't tell you -- 8 Q Well, I'm not asking you to assume, sir. I'm 9 asking you; do you know for a fact that this is the exact 10 tubing and the exact length of tubing that is going to be 11 used in the next execution of Florida? 12 A I can't tell you that I know that for a fact -- 13 Q Okay. 14 A -- sitting here right now today. 15 Q So the tubing could actually be longer, would you 16 agree with that? 17 A Well, as far as we're dealing in hypotheticals, it 18 could be longer, it could be shorter. 19 Q Well, let's talk about that for a second, sir. 20 A Could it be? Sure. 21 (Thereupon, Ms. Keffer returned to counsel table.) 22 Q Mr. Nunnelley showed you some photographs of the 23 inside of the execution chamber, is that correct, in the 24 chemical room? 25 A Yes. Owen & Associates (352) 624-2258 _

2826 1 Q Do you recall that? 2 A Yes. 3 Q Now, what is your understanding of where the 4 saline bags are going to go? 5 MR. NUNNELLEY: What is the exhibit, please? 6 BY MR. DUPREE: 7 Q And I'm referring you to 8Z. 8 A Well, the -- I mean the saline bags are going to 9 have to go somewhere in proximity to the -- I would say the 10 syringe stabilization apparatus. 11 Q But you don't know where? 12 A Exactly where, just from what is illustrated here, 13 no. 14 Q Have you ever visited Florida's execution chamber? 15 A No, I have not. 16 Q So you certainly haven't seen it either before or 17 since the renovations; is that correct? 18 A Correct. 19 Q So you -- at this point in time you can't sit here 20 today and point to the judge as to where the saline bags 21 actually go; is that a fair statement? 22 A Correct. And, in fact, whatever apparatus may be 23 used to support the saline bag may actually not even be in 24 the photograph. I can't tell you. 25 Q Okay. Well, if I represent to you that the saline Owen & Associates (352) 624-2258 _

2827 1 bag is going to be hung from up here (indicating) -- 2 A From the hook that's mounted -- 3 Q Yes, sir -- 4 A -- on the front -- 5 Q -- at the top of the roof. Okay. And it's going 6 to be -- and it's going to -- the tubing then would have to 7 come down through here, it's got to go into the wall 8 somehow, sir, would you agree with that? 9 A Yes. 10 Q So if I represented to you -- sorry about that. 11 Thank God I didn't hit your water. Here we go. I'm showing 12 you what has been marked as 8Y. That it's going to come out 13 of this, it's going to come down from the saline bags in 8Z, 14 from here, the hook at the ceiling, all the way down here 15 past the metal -- past the metal stand, underneath where 16 that gray flap is. It's going to come out through here and 17 it's going to go down the gurney. It's going to be taped to 18 the gurney on both sides all the way down to where the 19 person's elbow is. 20 Can you tell me the distance between where the 21 saline bags are, all the way down to here, all the way out 22 to this port, and all the way into the prisoner's arm? Can 23 you tell me the exact distance? 24 A Well, of course not. There's no rulers in these 25 photographs. Owen & Associates (352) 624-2258 _

2828 1 Q Thank you. And then going back to the apparatus 2 then. There's an additional -- an additional amount of 3 tubing through which the drugs have to be injected to go 4 into the main line that's going to go into the prisoner; is 5 that a fair statement? 6 A Yes. 7 Q Attached to the side? Yes. Thank you. Now, with 8 regard to the metal stand -- I should not have taken those 9 pictures away from you -- with regard to the metal stand 10 that you were talking about that is shown n both 8Z and 8CC. 11 And those are the same -- those are pictures of the same 12 area; is that correct -- 13 A Yes. 14 Q -- just at a different angle? 15 A Correct. 16 Q This particular metal stand, have you used that 17 before, a stand like that? 18 A No, I have not. 19 Q You've never used it? 20 A Correct. 21 Q Now, there was a State witness the other day who 22 testified named Robert Wheeler from the Governor's Office; 23 do you know that gentleman? 24 A I do not know him. I think I may have met him as 25 he was leaving as I was coming in, but I don't know him. Owen & Associates (352) 624-2258 _

2829 1 Q I saw an interesting thing while he was using this 2 plunger. And what he did was he pushed it like this 3 (demonstrating), using the heel of his hand he was pushing 4 the plunger as he demonstrated what was going on. Now -- 5 MR. NUNNELLEY: Your Honor, I am going to 6 object to the relevancy of whatever Mr. Wheeler 7 may have done. There's absolutely no testimony 8 that Mr. Wheeler is going to serve as the 9 executioner. 10 THE COURT: Overruled. Go ahead. 11 BY MR. DUPREE: 12 Q Is it possible that if this is placed at the -- 13 the syringe that we've already testified about, the sixty cc 14 syringe is placed into the stand. 15 A Yes. 16 Q And would you mind holding that for me just a 17 second, sir? Just like that. It would be held on the 18 stand. Is it possible for the person to use the heel of his 19 hand to push that in? 20 A Yes. Oh, yes. 21 Q As opposed to taking his finger and his thumb 22 (demonstrating); is that correct? So a person -- so the 23 person could actually just lean against the stand and push 24 hard, right? 25 A Yes. Owen & Associates (352) 624-2258 _

2830 1 Q Okay. Thank you. I've leave these up there. 2 THE CLERK: (Nods head affirmatively.) 3 BY MR. DUPREE: 4 Q Now, the State asked you about all three drugs; is 5 that correct? They asked you about thiopental, they asked 6 you about pancuronium, and they asked you about potassium? 7 A Over the course of the last several days, yes. 8 Q And certainly this morning; is that correct? 9 A Yeah, I'm not sure if we talked about potassium 10 but -- 11 Q Well, I think we did. So let's talk about the 12 potassium. 13 A Sure. 14 Q Now, Dr. Heath testified on cross examination 15 yesterday by Mr. Nunnelley, he testified about the process 16 by which potassium chloride actually stops a person's heart. 17 A Oh, yeah. 18 Q Okay. And you recall that, don't you, sir? 19 A Yes. 20 Q And you recall what Dr. Heath said, that he's just 21 not sure -- I don't remember his exact answer -- would you 22 agree with that, or do you have an opinion was to how the 23 potassium chloride actually stops the heart? 24 A Okay. Well -- 25 MR. NUNNELLEY: Your Honor, I am going to Owen & Associates (352) 624-2258 _

2831 1 object to it, it's not clear. We're talking -- 2 saying what, and this, and that. If Dr. Sperry 3 knows what the question is, then he can certainly 4 answer it, but I can't tell what the question is. 5 THE COURT: Overruled. Go ahead. 6 THE WITNESS: All right. Let me -- and I 7 think we're -- it's becoming -- 8 MR. DUPREE: If you want me to rephrase it, I 9 will -- 10 THE WITNESS: No, it's becoming -- it's 11 becoming semantic. But I think that obviously and 12 very clearly the potassium chloride causes the 13 heart to stop by disrupting the chemical 14 switching, the chemical pumps if you will, that 15 the heart muscle cells utilize every single time 16 all of our hearts beat during the entirety of our 17 lives. 18 BY MR. DUPREE: 19 Q Of course. 20 A So that is what it does. Now, the exact -- what 21 the heart does then; that is, how the heart responds 22 rhythm-wise, obviously, has a certain amount of variability 23 in the short term, so it doesn't necessarily do the same 24 thing every time. Ultimately, the heart does stop, but the 25 progression of the heart's -- heart rhythm's degeneration, Owen & Associates (352) 624-2258 _

2832 1 if you will, or going from normal to stopping, there is 2 variability in that progression. 3 Q And I believe in your testimony two days ago you 4 said that that was an instantaneous, do you -- do you stand 5 by that or do you -- 6 A When there's -- when there's asystole, yes. That 7 is instantaneous stopping of heart, yes. 8 Q Well, let's talk about the injection of potassium 9 chloride with this system that I just showed you. How soon 10 after the injection of the potassium chloride would the 11 person's heart stop? 12 A It would really all depend -- and I agree with 13 Dr. Heath -- it would depend upon at what point during the 14 circulation through the body that the bolus of potassium 15 began to reach the heart, and then reach the heart in such a 16 volume that it would effectuate the disruption of the 17 chemical pumping system of the heart muscle cells. 18 Q Do you also agree with Dr. Heath's assessment that 19 he's not sure as to whether it's the right side of the heart 20 or the left side of the heart that stops because of the ways 21 the drugs are circulated through the lungs and the heart; do 22 you agree with that? 23 A Yeah, I don't have a problem with that because 24 that's something that I'm not sure anyone has really -- 25 knows for sure. Owen & Associates (352) 624-2258 _

2833 1 Q Now, Mr. Nunnelley just asked you about IV 2 placement, and he was asking you about people that were 3 qualified or could be qualified to do that. Now, certainly 4 you'd want to know those persons' qualifications, wouldn't 5 you, sir? 6 A If I were in charge of selecting those people for, 7 you know, say the purpose of inserting IVs, yes, I would 8 want to know their qualifications. 9 Q And you also indicated that you've seen the May 10 9th, 2007 protocols, is that correct, and you reviewed 11 those? 12 A Yes. 13 Q Now, at the time that Ms. Keffer took your 14 deposition about a week ago you had not reviewed those 15 protocols; is that correct? 16 A Correct. 17 Q Now, in those protocols do you see anything that 18 lists the qualifications of -- of the person that's going to 19 be placing the IV? 20 A No, nothing that lists the specific 21 qualifications, no. 22 Q Do you see anybody that -- that lists the 23 qualifications of the person who is going to be doing either 24 a femoral line, is going to be doing a venous cut down 25 procedure, entering the subclavian line; do you see Owen & Associates (352) 624-2258 _

2834 1 anybody's qualifications that are listed in the protocols? 2 A No, there's no, I would say, subcategorization of 3 the specific qualifications of those individuals. 4 Q And you would certainly agree with me, sir, that 5 doing a venous cut down is something that requires more 6 skill than simply placing a peripheral IV line? 7 A Yes. 8 Q And it would require a great deal more skill; is 9 that correct? 10 A Well, it certainly requires more. I mean, you 11 could be trained to do it, so I'm not sure how that fits 12 into things. 13 Q Well, let go back -- let's go back to your 14 training, sir. In terms of -- 15 A Yes. 16 Q In terms of how often you use thiopental, when's 17 the last time that you administered thiopental? 18 A Oh, my, I don't -- in fact, I don't believe I 19 personally have ever administered thiopental. I've never 20 acted as an anesthesiologist. Certainly, I have not done it 21 in many, many years. And I'm not sure that I ever have in 22 a -- in an, you know, injection setting. 23 Q And in terms of pancuronium bromide, the same set 24 of questions; how long has it been since you actually used 25 the pancuronium bromide? Owen & Associates (352) 624-2258 _

2835 1 A Yes. And again, I have never acted or worked as 2 an anesthesiologist. And, you know, that drug is -- is 3 primarily the purview of anesthesiologists, or critical care 4 specialists. And I have -- I mean, I have been involved in 5 the utilization of pancuronium bromide as part of the 6 intensive care treatment of patients who were paralyzed and 7 on ventilators, but that -- the last time for that would 8 have been really back in probably, oh, 1981 or so, at least. 9 Q Okay. So you're talking about twenty-six, 10 twenty-seven years ago? 11 A Correct. There's -- I've had no opportunity nor 12 need to utilize that drug since that time in my practice. 13 Q Okay. Now, you also indicated, and Mr. Nunnelley 14 asked you about, the numerous complications that can occur 15 from doing a central line; is that correct? 16 A Yes, a subclavian line specifically we were 17 talking about, yes. 18 Q And there's a number of complications that can 19 occur; is that correct? 20 A Well, yes, that's what I said. 21 Q And that's why you would be concerned about the 22 skill level of the person who was doing that; is that 23 correct? 24 A Yes, that's appropriate. 25 Q Sir, I'm going to show you what's been marked as Owen & Associates (352) 624-2258 _

2836 1 Defendant's -- actually, it's in evidence as Defendant's 17, 2 and ask you if you recognize -- if you recognize what that 3 procedure is right there? 4 A Well, this is the one I used yesterday. This 5 appears to be an insertion point of a femoral line in -- 6 well, in the femoral region. And this -- it was either 7 nonfunctioning or it was taken after the person was dead 8 because the line is tied with a knot, and beyond that -- 9 Q And you'll notice there's a lot of blood 10 surrounding that. Is that something that commonly occurs in 11 inserting a femoral line? 12 MR. NUNNELLEY: Your Honor, that's 13 speculative based on this photograph. We have a 14 photograph of a needle sticking out of a dead 15 person's leg with blood around it. That -- we 16 don't know when the photograph was taken in 17 relation to the placement of the IV line or in 18 relation -- relation to the time the person died, 19 even though it was obviously taken after he died. 20 MR. DUPREE: But that wasn't my question. 21 MR. NUNNELLEY: He's asking Dr. Sperry to 22 assume facts that are not in evidence and are 23 unknown and apparently unknowable. 24 THE COURT: Overruled. You can answer. 25 THE WITNESS: Okay. What? Owen & Associates (352) 624-2258 _

2837 1 MR. DUPREE: My question was -- 2 THE WITNESS: Let's make sure things are 3 clear. Ask me your question again. 4 BY MR. DUPREE: 5 Q Certainly. You'll notice there's a lot of blood 6 around it, around the site of where the femoral line is; is 7 that correct? 8 A Yes. 9 Q And can that occur commonly in inserting femoral 10 lines? 11 A Okay. Bleeding can occur. This -- well, this 12 is -- this is rather unusual. And -- well, this is what we 13 see frankly in post mortem photographs of people who are 14 dead and blood leaks out inadvertently. The context of this 15 is -- is much more meaningful than the photograph itself as 16 you're showing it, but just to stick with what -- 17 Q My question. 18 A -- you know, what you asked me, bleeding can occur 19 with the placement of the femoral line, yes. 20 Q Thank you. In terms of the femoral line you had 21 mentioned there were three circumstances in which femoral 22 lines were used? 23 A I was using those at least as general examples, 24 yes. 25 Q And one was exigent circumstances; is that Owen & Associates (352) 624-2258 _

2838 1 correct? 2 A Well, emergent. Exigent, I don't have a problem 3 with that, so. 4 Q Emergent, I'll use that. In emergency procedures? 5 A Yes. 6 Q Okay. So emergency procedures. Certainly 7 something -- if a warrant is signed and it's signed for 8 thirty days, you wouldn't consider that to be an emergency 9 situation, would you? A judicial execution, is that an 10 emergency situation? 11 A No, I would not say so. 12 Q Okay. And you also mentioned, and I thought it 13 was interesting, about IV drug users. That's a situation 14 where you might want to use a femoral line as opposed to a 15 peripheral line; is that correct? 16 A Yes. 17 Q And why would that be? Why would you want to -- 18 why would you be concerned about a person's peripheral veins 19 if they're an IV drug user? 20 A Because over the course of time individuals who 21 abuse illegal drugs and sometimes grind up prescription 22 medications and liquefy them and inject them will have very 23 intense scarring of the veins and the tissues all around the 24 veins. And also they are prone to developing repeated 25 infections, as well, in the soft tissues of skin and the Owen & Associates (352) 624-2258 _

2839 1 areas around the veins themselves. 2 Over the course of time then these veins become 3 very thick and even scarred, sometimes to the point where 4 virtually no blood is flowing through them, or they are -- 5 if you will, there are blockages at various points. A vein 6 may be open at one point, but then blocked or scarred a 7 little farther along, and then open and blocked. And I've 8 seen that myself in many cases. 9 So the long and the short of it is, is that the 10 chronic injection of illegal, nonsterile, chemically impure 11 substances or substances, drugs that are meant to be taken 12 orally but which are ground up and injected inappropriately 13 into the skin and into the veins will cause very intense 14 inflammation, scarring, and sometimes even obliteration of 15 the veins. 16 Q So if a person -- let's -- let's break this up a 17 little bit. In terms of insertion of an IV, if the person 18 who is inserting the IV suspected the person had been an IV 19 drug user and, in fact, had been told the person was a IV 20 drug user and would have scarring, what would you -- you 21 would have concerns then about inserting the IV? That there 22 would be some concerns about that because of the scarring; 23 is that correct? 24 A Yes, especially in that location on the inside of 25 the elbow, the antecubital fossa. Owen & Associates (352) 624-2258 _

2840 1 Q Because that's commonly where people inject 2 illegal drugs, correct? 3 A Exactly, that's an extremely common place, because 4 the veins there are right at the surface and relatively 5 large. It's a convenience aspect. 6 Q And then the second thing you talked about was 7 over the course of time of using those drugs that there 8 might be -- they might develop some kind of a blockage in 9 the veins themselves, up the line, down the line; is that 10 correct? 11 A Exactly, yes. 12 Q Okay. And then there was a third problem that it 13 might obliterate the vein entirely; is that correct? 14 A Yes. 15 Q So then it would be your opinion, then, sir, that 16 if you were going to be -- if you were going to be inserting 17 an IV into somebody who you suspected of drug use and, in 18 fact, claimed there was scar tissue, that's something you 19 would want to take more care with; is that correct? 20 A In and of itself, I would consider that to be a 21 warning sign, or at least have potential relevance to give 22 the -- you know, the person who was in charge of inserting 23 the IVs, well, I would say some -- some notice that there 24 potentially may be problems in the IV insertion in those 25 locations. Owen & Associates (352) 624-2258 _

2841 1 Q Okay. And then you would want to continuously 2 monitor that IV, wouldn't you agree, because of the very 3 problems you just talked about, blockages up the vein and 4 other issues with the blood and the vein because of the 5 concerns that you would have about an IV drug user; is that 6 correct? 7 A Yes, I mean, I assume you mean if -- if the IV was 8 successfully placed -- 9 Q Yes, sir. 10 A -- and in the judgment of the person or persons 11 who had placed the IVs that it was -- that the flow was 12 functioning properly, you know, nonetheless continual 13 monitoring in that setting of a history of the IV drug abuse 14 would be appropriate. 15 Q I think you talked about surgical procedures -- 16 A Yes. 17 Q -- is that correct? Do you consider a judicial 18 execution to be a surgical procedure? 19 A No. 20 Q And I think you also said that you didn't think 21 that there was any of a -- that nothing involved in 22 Florida's lethal injection protocol is a medical procedure; 23 is that your testimony, sir? 24 A From the perspective of the purpose for this, that 25 is, I would not define the insertion of IVs for the purpose Owen & Associates (352) 624-2258 _

2842 1 of achieving a lethal injection to be solely a medical 2 purpose. There's -- well, there's no -- there's no medical 3 purpose in injecting lethal chemicals into someone. That is 4 not something that is -- that is done as part of a medical 5 practice. 6 Q Well, certainly injecting the potassium chloride 7 would not be a medical procedure, but certainly when you're 8 going to -- when you're going to induce the anesthesia, 9 because you've indicated that the thiopental is something 10 that you're going to inject so that the person can be put 11 into a surgical plane of the anesthesia; is that correct? 12 A If it was utilized in that way and then, 13 obviously, you know, what goes, I think, well, hand-in-hand 14 is then you have to breathe for the person to keep them 15 alive, otherwise they will die. 16 Q Okay. But in the context of an execution are you 17 saying that once you injected the sodium thiopental that 18 person doesn't need to be monitored for anesthetic depth? 19 A Well, I'm think you're getting into apples and 20 oranges. I'm not sure that I said that one -- one way or 21 the other. I think monitoring of the -- of the individual, 22 monitoring of the inmate in some way to assess -- to 23 whatever extent is decided upon as being appropriate, to 24 assess their level of consciousness or unconsciousness to 25 allow the progression of the injection process in the Owen & Associates (352) 624-2258 _

2843 1 protocol, I don't see that as being problematic. 2 Q Do you see that as a medical procedure, sir? That 3 was my question. 4 A Well, that's not -- that's not what you asked me, 5 but do I see that as a medical procedure? 6 Q Yes, sir. 7 A No. I -- again, we're going from the dividing 8 line of utilizing techniques, accesses, intravenous lines, 9 that are far and away, you know, the most common use without 10 question -- 11 Q Well, let me -- 12 A -- is in the medical procedures -- 13 Q Very good. 14 A -- but this, you know, utilization in this way is 15 I would not term to be a medical procedure. In a sense it's 16 the same as using the thiopental for the purpose of 17 achieving sedation and knowing that the amount that you're 18 giving is in and of itself lethal, that I would not consider 19 to be medical. 20 Q Let's start at the top. Insertion of the IV, 21 that's a medical procedure; agree? 22 A Okay. Is the -- 23 Q It's a yes or no answer. 24 A Okay. 25 Q Yes or no? Owen & Associates (352) 624-2258 _

2844 1 THE COURT: We're getting into semantics 2 here, and that's not going to be quite helpful to 3 me. 4 MR. DUPREE: Okay. 5 THE COURT: We know what we're talking about 6 and I don't think we need to waste time over 7 semantics. 8 THE WITNESS: Thank you. 9 BY MR. DUPREE: 10 Q Do you -- do you consider the inducting of 11 anesthesia in a clinical setting to be a medical procedure? 12 A Oh, yes, of course. 13 Q Now, you -- your testimony the other day, as I 14 recall it, was that the cannulae had extravasated the veins; 15 is that correct? 16 A Well, I don't think they -- 17 Q Well, okay. 18 A Yes, they had perforated through the veins and 19 they were outside. And, you know, to say -- it's an odd 20 terminology, but they had at least achieved extravasation, 21 yes. 22 Q And the chemicals that were injected into the 23 line, into Mr. Diaz, went into his soft tissue; is that 24 correct? 25 A Yes. Owen & Associates (352) 624-2258 _

2845 1 Q And let me ask you a question; what you think 2 about the competence of the people who administered the 3 drugs in that case? 4 A What -- your question was? 5 Q How competent do you think they were that they 6 injected through two IV lines all the chemicals into 7 Mr. Diaz's soft tissue? 8 MR. NUNNELLEY: Your Honor, this is outside 9 the scope of direct examination. Dr. Sperry was 10 called to testify about specific things this 11 morning, and now we're going back into things that 12 weren't asked and should have been on cross 13 examination of this witness when he testified two 14 days ago. 15 THE COURT: Overruled. You can answer, if 16 you know. 17 THE WITNESS: I'm not sure I can comment on 18 the competence specifically, but the fact that 19 this occurred and what we know did occur from the 20 autopsy examination itself and the process that 21 of -- the execution of Mr. Diaz would tell me that 22 there was a failure of the process itself. 23 You know, how that falls back on the 24 competency of the individuals is, you know, 25 perhaps -- it's separate; related no doubt, but Owen & Associates (352) 624-2258 _

2846 1 separate. They may be perfectly competent but the 2 process itself as it was meant to occur failed. 3 BY MR. DUPREE: 4 Q Well, the person that's inserted the IVs line not 5 just once but twice went through -- all the way though the 6 veins, are you telling me that person was competent? 7 A Okay. Inserting the IV line and pushing it 8 through the vein is not a sign of incompetence in and of 9 itself. Its a known and recognized complication that is not 10 the desired outcome, that is getting the -- getting the 11 cannulas inside the vein. So again, competence versus 12 ability to judge and interpret and then relate -- well, 13 interpret, identify, and relate the problems, you know, 14 is -- is yet a separate issue. 15 It did occur. And I said, I -- you know, no doubt 16 at all. You heard my own testimony about my own assessment. 17 So I would look at that as essentially a failure of the 18 process. But again, judging the competence overall is 19 something that I'm not sure I can -- I can go there 20 specifically. 21 Q Well, how about the competence of the person that 22 was monitoring Mr. Diaz? We've heard testimony that the IVs 23 were actually inserted thirty minutes before the execution 24 began. How about the person that was monitoring the IVs for 25 those thirty minutes prior to the time of the injection? Owen & Associates (352) 624-2258 _

2847 1 A Okay. During that time I would say that it's -- 2 based upon what ultimately was known, what ultimately was 3 documented factually, there should have been the ability to 4 identify that one or both of the IVs was not within the vein 5 in the appropriate fashion. 6 And so, you know, how those -- the individual or 7 individuals in charge of assessing the IV sites and 8 monitoring those IV sites, and monitoring the flow, or how 9 they did that is something that I don't know for a fact, but 10 I would say that the opportunity and the ability to identify 11 that one or the other, or both of the IVs, were inadequate 12 in their function and placement was there. 13 Q And then as far as the injection of lethal 14 chemicals is concerned, once Mr. Diaz did not have the 15 reaction that you testified about, that you would expect to 16 see almost immediate unconsciousness, correct? 17 A Yes. 18 Q With the injection of the five grams of sodium 19 thiopental? 20 A Yes. 21 Q And the fact that Mr. Diaz was still moving seven 22 to ten minutes afterwards, would you care to comment, or 23 would you please give me an opinion as to the competence of 24 the medical team and the executioners that were watching 25 Mr. Diaz after they'd seen those drugs injected and they Owen & Associates (352) 624-2258 _

2848 1 didn't go out and check the lines or check Mr. Diaz to see 2 whether or not he reached the proper anesthetic depth? 3 A Yes. And I think that -- that alone to me is 4 the -- I would say the strongest factor that I see in the 5 process failure of Mr. Diaz's execution, in that the 6 expected unconsciousness and cessation of breathing that 7 should occur literally within seconds if the sodium 8 thiopental at five grams is injected intravenously and 9 circulating through the system. If that did not occur in 10 the way that it should have occurred; that is, in those -- 11 that sequence of events that is expected and essentially 12 universal did not occur; that in and of itself should have 13 prompted interruption, assessment and then any intervention 14 that was needed. 15 Q And the person -- the person who was in charge of 16 assessing that then would be incompetent; would that be 17 correct? 18 A I think that's essentially where at least the 19 process started; that is, the person who is in charge of 20 making that assessment and judgment and is charged with 21 notification that there is a problem. That is -- I mean, I 22 worded that poorly. Making the notification that there is a 23 problem, and thus interrupting the process to engage an 24 assessment, that I would consider to be a significant 25 failure and a lack of competence. Owen & Associates (352) 624-2258 _

2849 1 Q And you don't know who that person was that 2 performed that function back on December 13th of 2006; would 3 that be a fair statement? 4 A Correct, I do not know who was charged -- at least 5 who had that function and was charged with those duties. 6 Q Okay. And you don't know today who that person is 7 going to be, do you? 8 A No, I do not know who that specifically is 9 appointed to be. 10 Q And back in December -- so it's fair to say, then, 11 on December 14th, 2006 you didn't know that person's 12 qualifications, that person's training, and there's nothing 13 in the protocols that will tell you today what that same 14 person who is going to be performing that same function is, 15 you don't know their qualifications and you don't know their 16 training; would that be a fair statement? 17 A Correct. As far as specific delineation of those 18 elements, no. 19 THE COURT: Counsel, is there anything in 20 this record that tells me what they were? 21 MR. DUPREE: Tells you? I'm sorry, sir. 22 THE COURT: Is there anything in this record 23 that tells me what they were? 24 MR. DUPREE: Tells you what -- what -- 25 THE COURT: The qualifications of the person Owen & Associates (352) 624-2258 _

2850 1 who -- the person or persons who were doing that? 2 MR. DUPREE: Not that I know of, Judge. 3 MR. NUNNELLEY: It would be in the transcript 4 of the Governor's Commission on the Administration 5 of Lethal Injection that was admitted by the 6 defendant yesterday, your Honor. 7 MR. DUPREE: And I urge you to take a look at 8 that, your Honor. 9 THE COURT: Okay. 10 MR. NUNNELLEY: And so I guess counsel now 11 recognizes that is in the record and there is 12 information to that effect contained within the 13 record now. 14 MR. DUPREE: I think we entered it. 15 MR. NUNNELLEY: You told the -- 16 MS. KEFFER: I would just say the record 17 speaks for itself. 18 THE COURT: Okay. 19 MR. NUNNELLEY: Well, your Honor -- 20 MS. KEFFER: I think I just agreed -- 21 MR. NUNNELLEY: -- he answered your question 22 by saying there is nothing in the record -- 23 THE COURT REPORTER: I'm sorry, one at a 24 time. 25 MR. NUNNELLEY: -- to answer your question, Owen & Associates (352) 624-2258 _

2851 1 and that's not exactly accurate. They introduced 2 that evidence yesterday themselves. 3 MR. DUPREE: No, sir. I asked this witness 4 if he knew, that's what I asked him. 5 MR. NUNNELLEY: And the judge asked you -- 6 THE COURT: I asked you if there's -- 7 MR. DUPREE: Yes, sir. 8 THE COURT: -- evidence in the record. 9 MR. DUPREE: And I would ask the Court, 10 please review the three people. I would ask you 11 to do that. 12 MR. NUNNELLEY: So would I. 13 BY MR. DUPREE: 14 Q Now, you also indicated, sir, on direct 15 examination that it's your opinion that the Sodium Pentothal 16 is a -- is a drug that took effect first; is that correct? 17 A Yes. 18 Q And can you tell me -- other than the fact that it 19 was injected first, can you tell me why you got that 20 opinion? Where -- where do you get that from? Do you know 21 anything about the absorption rates of sodium thiopental if 22 it's injected subcutaneously? 23 A No, as far as the rate and at the level of five 24 grams, too, I don't think that anyone -- I don't believe 25 that has ever been studied in a true scientific manner. I Owen & Associates (352) 624-2258 _

2852 1 mean, you could not do that in human beings for that matter. 2 Q And there's no -- there's certainly is no study to 3 that effect; is that correct? 4 A Not that I'm aware of that establishes a 5 documentation of rates. 6 Q And in terms of -- well, let's just put aside the 7 five grams of sodium thiopental for a second. Are you aware 8 of, or can you point the Court to any studies that would 9 indicate that anybody has done any study as to what the rate 10 of absorption of sodium thiopental if injected 11 subcutaneously would be? 12 A No, I'm not aware of anything that address that 13 specifically. 14 Q So this is just your theory, then; is that 15 correct? There's nothing -- you don't know, there's no rate 16 of absorption of that? You can't point to a rate of 17 absorption; is that correct? 18 A Okay. You asked me about three questions there. 19 Q Well, let's break it down. 20 A Yeah. 21 Q I'll do that. 22 A No, no, it's -- it's very easy. I think it's 23 based upon the fact that five grams of Sodium Pentothal 24 injected even subcutaneously is going to be lethal no matter 25 what eventually. Because as it is absorbed irrespective of Owen & Associates (352) 624-2258 _

2853 1 its rate it is going to achieve lethality because of the 2 quantity that is there. 3 And then it's -- and then to top that combined 4 with what Mr. Nunnelley was asking me regarding Mr. Diaz's 5 movements, and observed movements, during the course of the 6 execution process, and essentially the absence of paralysis, 7 which would negate the proposition that the pancuronium or 8 Pavulon was really taking effect. 9 Q Well, sir, you don't know that he wasn't partially 10 paralyzed, do you? 11 A Well, partially? Well, that's a relative term, I 12 mean, and without a real formal neurologic assessment 13 there's no way to assess whatever partial paralysis might 14 mean. 15 Q Do you know what the absorption rate of 16 pancuronium bromide is if it is injected subcutaneously? 17 A No. 18 Q Okay. There's no theory on that? There's no 19 chart or graph that you can show me? 20 A Well, I don't know. If it has been measured, I'm 21 not aware of the literature that has measured that. 22 Q Okay. Then how can you give an ultimate opinion 23 that the thiopental as opposed to the pancuronium reached 24 first if you can't tell me absorption rates or the -- the 25 draw rates into the blood of either one of those drugs? Owen & Associates (352) 624-2258 _

2854 1 A It's, again, the appearance and the progression of 2 sedation to the point of snoring. And sedation is what the 3 Sodium Pentothal produces. And I think, you know, everyone 4 ought to understand by now that the pancuronium does not 5 produce sedation at all. In fact, it's just the opposite. 6 It produces paralysis but not sedation. 7 Q Now, in terms of the context of the Angel Diaz 8 execution is it possible that Mr. Diaz was conscious when he 9 received the injection in Line B of the pancuronium bromide? 10 A Okay. It's possible that he had some level of 11 consciousness, yes. I mean, it's not -- pardon me. It's 12 not an all or nothing proposition, it's you are either 13 conscious, completely unconscious, or in between. So some 14 level of at least semi-consciousness certainly is possible. 15 Q Would he have been able to perceive the fact that 16 he couldn't breathe? 17 A It is possible that he could have been able to 18 perceive that. I cannot tell you that that is not possible. 19 MR. DUPREE: Can I have just a moment, your 20 Honor? Just briefly, your Honor. 21 MR. NUNNELLEY: Please. 22 MR. DUPREE: I wasn't up here for two hours. 23 BY MR. DUPREE: 24 Q Now, you were present in court yesterday, correct, 25 when we went over the testimony of the people from the Owen & Associates (352) 624-2258 _

2855 1 lethal injection Commission; do you recall hearing that 2 testimony? 3 A You're confusing me now. I mean, I was here all 4 day yesterday. I mean, I guess, I'm confused, are you 5 talking about things that you read? 6 Q Let me ask a better question. Have you been 7 provided a copy of the lethal injection Commission testimony 8 by the State? 9 A No, I have not. 10 Q You have not reviewed the testimony of the primary 11 executioner? 12 A Correct. 13 Q You have not reviewed the testimony of the medical 14 team, either member one or member two? 15 A Correct. I have not reviewed their testimony. 16 Q Were you present in court yesterday when the 17 sequence of the drugs that were administered to Mr. Diaz and 18 to which lines were discussed, and Judge Angel asked a 19 number of questions about that? 20 A Yes. 21 Q And is it your understanding, sir, that the first 22 set of drugs were injected into Line A, the left arm, was 23 you had Sodium Pentothal, Sodium Pentothal, saline and 24 partially the pancuronium bromide; is that your 25 understanding of the sequence? Owen & Associates (352) 624-2258 _

2856 1 A As I recall, as you went through it yesterday, 2 that's what I recall. I'm not differing with you, but I did 3 not write that down myself, but I'm not -- I have a general 4 recollection of that discussion and that seems consistent. 5 Q And then there was a decision that was made among 6 the medical team members to take the rest of that Pavulon, 7 or the pancuronium bromide, and then switch lines and then 8 inject it directly into the right arm. Do you recall that 9 testimony, sir? 10 A Yes. 11 Q Do you have an opinion as to whether -- about the 12 competence of a person who would inject pancuronium bromide 13 into a person when they don't know that the person that they 14 already injected Sodium Pentothal in was unconscious? 15 A Okay. Based -- based -- I think specifically on 16 the context of the Angel Diaz execution, I think as you are 17 describing it that sequence and the way in which it was 18 performed, in the context of that particular execution and 19 the way it progressed and, you know -- and what we know 20 about it at least sitting here today, I think that the 21 decision to -- to switch over lines and progress in that way 22 was not appropriate to do without an assessment of Mr. Diaz 23 specifically, and especially, because I've said a little bit 24 earlier, an assessment as to whether or not the Sodium 25 Pentothal had appropriately taken effect in the way that it Owen & Associates (352) 624-2258 _

2857 1 is supposed to have. 2 Q And based upon your testimony and your opinions, 3 sir, based upon what you've reviewed, Mr. Diaz didn't have 4 the expected effect of the Sodium Pentothal; is that 5 correct? 6 A Correct. 7 Q So the injection then of the pancuronium bromide 8 when you didn't have the expected result would be an 9 incompetent decision; would you agree with that, sir? 10 A I think -- I think that's not unreasonable, 11 because if there -- the expected -- if the expected and 12 observed manifestations of the Sodium Pentothal on Mr. Diaz 13 were not occurring in the way that they should have; that 14 is, virtual instantaneous unconsciousness and cessation of 15 breathing, if those finding were not present that in and of 16 itself was, in my opinion, sufficient knowledge to, number 17 one, interrupt the execution process, and number two, assess 18 Mr. Diaz specifically, and number three, assess the 19 intravenous -- intravenous access lines. 20 And I mean -- and I mean inspect and assess all of 21 them, not just necessarily Line A versus Line B. I think 22 that -- you know, that observation alone, again, in my 23 opinion should have prompted interruption, assessment, and 24 then a decision on how to proceed thereafter. 25 Q And none -- to your knowledge, sir, none of those Owen & Associates (352) 624-2258 _

2858 1 things were done; is that correct? 2 A No, not -- not in the way that I would envision 3 them, no. 4 Q Okay. Now, you provided consultation, you 5 consulted with the State of Florida about their lethal 6 injection procedures; is that correct? 7 A Yes, I have. 8 Q And I believe you testified in the State vs. 9 Richter in Georgia that you provided both medical and 10 scientific evidence -- scientific advice to the State of 11 Florida on their lethal injection procedures; is that 12 correct? 13 A I -- I don't know. You probably have the 14 transcript. And I may even have it, too. I don't remember 15 exactly what I said, but if that's what I said, then I 16 certainly would stand on that. 17 Q And you've spoken to Mr. Nunnelley on several 18 occasions over the years about Florida's lethal injection 19 procedure; is that correct? 20 A Yes. 21 Q Has Mr. Nunnelley ever asked you to help write the 22 protocols for the State of Florida? 23 A No, sir. 24 Q He has never asked you to do that? You are a 25 doctor; is that correct? Owen & Associates (352) 624-2258 _

2859 1 A Oh, yes. 2 Q And you provided an opinion here today as to 3 determining anesthetic depth and all sorts of procedures 4 that Florida uses; is that correct? 5 A Yes. 6 Q Has Mr. Nunnelley ever asked you to write anything 7 in terms of the protocols with regard to training or 8 qualifications? 9 A No. Mr. Nunnelley nor no one else has asked me 10 to -- to engage in any sort of -- in assisting in the 11 promulgation of any protocols, training, regarding training, 12 procedures, anything like that. 13 Q Has he asked you any advice on what the medical 14 qualifications of a person doing specific jobs in the 15 Florida execution scheme, has he asked you what those 16 people's training and qualifications should be? 17 A Only during the course of -- 18 MR. NUNNELLEY: Your Honor, that's going to 19 invade work product if he answers that question, 20 and I am going to object to it. This lawyer is 21 not entitled to put my own witness on the stand 22 and ask him what trial preparation I've engaged in 23 with him. That is absolutely improper and I 24 object to it. 25 THE COURT: Overruled. You can answer. Owen & Associates (352) 624-2258 _

2860 1 THE WITNESS: Well, that's what I was about 2 to say only in the context of actually discussions 3 primarily for my appearances here. 4 BY MR. DUPREE: 5 Q But he hasn't sent you the protocols and said, 6 hey, Dr. Sperry, can you do me a favor? Can you go through 7 this protocol step by step and tell me if Florida's lethal 8 injection procedure is fine and dandy -- 9 MR. NUNNELLEY: Objection -- 10 BY MR. DUPREE: 11 Q -- or what do I need to add? 12 MR. NUNNELLEY: Objection. It's been asked 13 and answered. He's already said he hasn't done 14 that. 15 THE COURT: Overruled. You can answer. 16 THE WITNESS: Well, correct, I have not been 17 sent or given the protocol with the express intent 18 of, I would say, establishing or making 19 modifications, changes, or adjustments that -- 20 that I felt would be appropriate in one way or 21 another. 22 MR. DUPREE: Just one moment and we're done. 23 Your Honor, I have no further questions of the 24 witness. 25 REDIRECT EXAMINATION Owen & Associates (352) 624-2258 _

2861 1 BY MR. NUNNELLEY: 2 Q Dr. Sperry, are you aware that Florida Statutes 3 Section 922.105 provides, and I quote, notwithstanding 4 various other cited chapters of Florida law for purposes of 5 this section prescription, preparation, compounding, 6 dispensing and administration of a lethal injection does not 7 constitute the practice of medicine, nursing or pharmacy? 8 A I actually -- I mean, I was aware of that. I have 9 not looked at it in some time, but I was aware that that 10 existed. 11 MR. NUNNELLEY: And, your Honor, for the 12 record, it's 922.105 that sets out various 13 provisions of Florida law with respect to 14 execution by lethal injection. 15 BY MR. NUNNELLEY: 16 Q Dr. Sperry, do you have an opinion as to whether 17 or not an individual who has been paralyzed by the injection 18 of pancuronium bromide can open and close their eyes? 19 A Yes. 20 Q Can they or can they not open and close their 21 eyes? 22 A No, if they're paralyzed by pancuronium bromide 23 they cannot open or close their eyes. 24 Q Now, doctor, we've heard a lot of testimony over 25 the last few days about how IV lines of really any sort can Owen & Associates (352) 624-2258 _

2862 1 malfunction, initially work and then fail, or otherwise have 2 some mishap or misadventure. Would you agree or disagree 3 with the notion that anyone in the medical field who starts 4 IVs can have -- or can make a mistake? 5 A Absolutely. I mean, that is -- that actually -- 6 well, there's absolutely no one in the medical field who 7 engages in the insertion of IVs who at some point or another 8 has not made a mistake. That is just part of the process. 9 It's a -- you know, it's human error, or a whole variety of 10 different things that have been discussed and to great 11 length. But, yes, anyone, everyone has the potential for 12 making an error at some point or another. 13 Q And likewise, anybody who -- in the medical field 14 who sets up IV lines can use poor judgment, or bad judgment, 15 in management of that IV line, can't they? 16 A Oh, yes. Oh, yes. 17 Q And I believe Dr. Heath testified yesterday -- and 18 I'm kind of paraphrasing, but it seems to me like, and tell 19 me if you agree or disagree with this -- that the only way 20 you're going to know what a bad IV feels like for purposes 21 of injecting drugs into it is if you had tried to do it. Do 22 you agree with that? 23 A Yes. I understand what he was saying, and it's a 24 tactile or a touch sensation that is a achieved with 25 practice and reputation. And if one -- especially if one Owen & Associates (352) 624-2258 _

2863 1 does this process and injects drugs through an intravenous 2 line and feels with their hands and interprets with their 3 mind what normal is, then when an abnormal situation is 4 encountered the hand and the brain make that notification 5 that it is out of the realm of what is expected. So, yes, 6 practice is what achieves experience. 7 Q And practice includes mistakes, doesn't it? 8 A Yes, it does. 9 Q Now, doctor, in the case of the Angel Diaz 10 execution both of IV lines -- or the IV line in each of 11 Mr. Diaz's arms were subcutaneously inserted; is that 12 correct? 13 A Yes. 14 Q So it would be incorrect to -- to assume that when 15 the pancuronium bromide was injected into the secondary IV 16 line after the problem was identified with the first IV line 17 that the pancuronium bromide that was going into the second 18 IV line was actually going into one of Mr. Diaz's veins, 19 wouldn't it? 20 A Correct. It was obviously not going directly into 21 a vein. 22 Q So is it correct or incorrect to say that the 23 Pavulon or the pancuronium bromide was not going to reach 24 Mr. Diaz's brain before the sodium thiopental? 25 A Well, okay -- Owen & Associates (352) 624-2258 _

2864 1 Q Let me back up. I didn't ask that well. Is it 2 correct or incorrect to say that both IVs were compromised 3 and both IVs were compromised in the same way? 4 A Yes. In a physical sense, yes. 5 Q So is it correct or incorrect to say that the 6 drugs going to both IVs were being delivered in the same 7 way? 8 A They're delivered -- being delivered generally in 9 the same anatomical location; that is, in the soft tissues 10 around the veins and not directly intravenously. 11 Q And doctor, you've reviewed the Florida execution 12 procedures? 13 A Yes. 14 Q What under those procedures is the preferred or 15 initial IV site that is described as to be used? 16 A The antecubital fossa, or the inside of the arms, 17 the inside of the elbow areas of the arms. 18 Q Now, doctor, do you keep current -- do you keep 19 current on drugs that are in -- in use by virtue of your 20 position as a forensic pathologist? 21 A I try to. There are a lot of medications that I 22 do not keep current on, such as antibiotics obviously 23 because -- mostly because they don't have any particular 24 application to toxicology aspects, which is really the 25 element that I'm most interested in. So there's a lot of Owen & Associates (352) 624-2258 _

2865 1 different medicines and drugs that are not poisonous or 2 toxic, or result in people's impairment or death, and thus I 3 don't really keep up on a lot of those. Drugs that are, I 4 would say, relevant with respect to causing or contributing 5 to death or adding to someone's impairment generally I try 6 to keep up on it. 7 Q And that would include the drugs used in carrying 8 out executions by lethal injection? 9 A Oh, yes. 10 Q Doctor, I'm showing you what is in evidence as 11 Defendant's 17. I believe you testified previously that 12 that's a photograph of a femoral vein intravenous line? 13 A Yes. 14 Q Now, there appears to be blood around the point 15 where the needle penetrates the skin? 16 A Yes. 17 Q There appears to be bloody gauze to the left side 18 of the photograph, doesn't there? 19 A Yes. 20 Q Can you tell from looking at that photograph when 21 the blood around the IV line site got there? 22 A No, it is not possible to tell whether it occurred 23 during the insertion of the catheter, immediately after the 24 insertion of the catheter while the person was alive, or 25 accumulated frankly in the hours after the person was dead, Owen & Associates (352) 624-2258 _

2866 1 which is -- I have -- I personally, because of what I do, 2 have seen similar sorts of things like this thousands of 3 times. 4 Q Just because -- do you have a judgment as to 5 whether or not because we see blood in this photograph that 6 is taken at an undetermined unknown time there was any 7 excessive bleeding at the time the IV was established when 8 the inmate was alive? 9 A Yes, this photograph -- using this photograph it's 10 impossible to reach a conclusion like that, because as I 11 said -- as I said while -- when it was showed to me earlier, 12 the context of the photograph is the most important aspect. 13 That is, if this photograph say was hypothetically taken 14 within five minutes following when an execution was carried 15 out this blood would have occurred and would have 16 accumulated prior -- at the time -- at or immediately after 17 the time when the IV was placed and during the execution 18 process. However, if this was an autopsy photograph, again 19 say, hypothetically taken the next day, this has no -- this 20 blood here would be utterly irrelevant to me. 21 Q And for all we know this blood was developed or 22 wound up here during the course of the autopsy examination? 23 A Yes, or moving the body, I mean, a whole host of 24 different variables. That's why the context of the 25 photograph really is more important than just the photograph Owen & Associates (352) 624-2258 _

2867 1 itself. 2 Q Now, doctor, you were asked a couple of questions 3 about the priming volume of the intravenous line or the IV 4 set; do you recall that? 5 A Yes. 6 Q Do you have an opinion as to whether or not a 7 twenty cc syringe flush of saline would be sufficient to 8 completely clear the IV lines of any residual chemicals? 9 A Yes, based upon the set that was shown to me and 10 also shown to Dr. Heath I agree with his assessment 11 completely, that the volume of the IV set as was shown to me 12 equates to twenty-one milliliters. And as he stated, and I 13 agree, that a twenty milliliter flush would clear the line 14 of any -- of virtually all residual drug that was in the 15 line. 16 Q A twenty cc flush is a lot more than twenty-one 17 milliliters; is that correct? 18 A No, it's the same thing. 19 Q Twenty cc's is what? 20 A A cc -- yeah, that's why -- 21 Q Help me out here, I'm a lawyer. 22 A That's why we're doctors and your not. A cubic 23 centimeter is the same as a milliliter. An ml is the same 24 as a cc. They are absolutely identical with respect to 25 water, so -- so, and I actually -- to make it easier to Owen & Associates (352) 624-2258 _

2868 1 understand, a teaspoon essentially is five cc's. So there's 2 a good reference point. 3 So a teaspoon of water is by general consensus 4 five milliliters. And an ounce is almost -- is about 5 thirty -- almost thirty-five milliliters approximately. So 6 twenty cc's is the same as twenty milliliters. If a line 7 has a volume of twenty-one milliliters or twenty cc's, 8 injecting twenty cc's of saline flush would clear out all of 9 the line except the last, you know, probably couple of 10 inches or so. 11 Q Would that be any cause for concern that you 12 didn't get the last couple of inches of the line? 13 A Well, no, because the next syringe that is 14 attached with whatever drug is in the sequence is then going 15 to push the saline that has now almost completely filled the 16 tube on and push that last little tiny bit of drug. And 17 again, the dosages that we're speaking about for lethal 18 injection purposes, the tiny quantity of drug that might 19 remain within the syringe tubing is for practical purposes 20 irrelevant. 21 Q Would -- would that be acceptable medical practice 22 to use a twenty cc flush with that IV set? 23 A Of course. Oh, yes. 24 Q There wouldn't be any need or any obligation of 25 ethics or anything else to use a larger syringe to flush the Owen & Associates (352) 624-2258 _

2869 1 IV set we're talking about? 2 A Well, no, the goal -- in a clinical setting the 3 goal is to get the medication that you have administered 4 into the patient. And so the physician, or the nurse, or 5 whoever is doing the injection would -- would then 6 comprehend that whatever volume of flush they would use 7 would have to be sufficient to get all the drug into the 8 patient. 9 Q Okay. Now, going back to the syringe -- and I'm 10 almost through, Dr. Sperry -- it has a blunt -- the syringe 11 that's in Demonstrative Aid 1 has a blunt needle on the end 12 of it? 13 A Yes. 14 Q Does -- I guess you can put a different size 15 needle on the end of this syringe if you wanted to; would 16 that -- is that right or no? 17 A Sure. Oh, sure. You could, because it just 18 unscrews and unlocks. And there are bigger, larger 19 diameter, larger caliber needles and smaller caliber 20 needles. 21 Q And is it fair to say that it would be easy -- 22 would it be easier to push this syringe with a larger 23 caliber needle on here than it would be with this needle on 24 here? 25 A Yes, it's a function of physics. That is, it's -- Owen & Associates (352) 624-2258 _

2870 1 it's like trying to breathe through a straw versus breathing 2 through a snorkel set. The larger the tube the easier it is 3 to push volumes through it. The smaller the tube the more 4 resistant that's encountered, just because of the diameter 5 that you're trying to push -- to breathe through or push 6 fluid through. So a larger -- a larger blunt needle could 7 be attached to the end of that syringe which would make it 8 easier to push the syringe down. 9 Q So does the small -- the needle act to limit the 10 speed of which the drug can be pushed through? 11 A To an extent it does. 12 Q Or maybe limit the force as opposed to the speed? 13 A That's a better way to look at it. You could -- 14 with a smaller diameter tube, a smaller diameter needle, you 15 would have to increase the force to deliver the fluid at the 16 same rate, at the same volume, as would be equivalent to a 17 larger diameter needle. 18 Q And would the smaller diameter needle make it 19 harder to over-pressurize the system, if you will? 20 A Yes, it would serve again a limiting factor 21 because you're create -- by -- with a smaller diameter 22 needle you're actually increasing the resistance of the 23 system. That is, the force that -- the back pressure, if 24 you will -- that's not really it. The force that you're 25 encountering by pushing the plunger down, so the smaller the Owen & Associates (352) 624-2258 _

2871 1 needle the greater the force is necessary to push the fluid 2 through at a steady rate. 3 MR. NUNNELLEY: No further questions, your 4 Honor. 5 MR. DUPREE: Very briefly, Judge. 6 THE WITNESS: You said that the last time. 7 THE COURT: They all say that. 8 THE WITNESS: I know that, sir. I have 9 learned that. 10 MR. DUPREE: Judge, I listened to the State 11 tell me it was the last question for forty-five 12 minutes yesterday. 13 THE WITNESS: All right. Yes, sir. 14 RECROSS EXAMINATION 15 BY MR. DUPREE: 16 Q Sir, you just testified with regard to the 17 blinking of the eyes that if somebody had gotten the 18 pancuronium bromide that you would not expect to see a 19 person blinking their eyes; would that be a fair statement? 20 A No, I was asked if the person was paralyzed by the 21 pancuronium bromide would they expected to blink the eyes, 22 and that was the context I answered it in. 23 Q But in the situation that we have in Angel Diaz 24 where the pancuronium bromide was injected subcutaneously, 25 and was slowly being absorbed into -- into the blood stream, Owen & Associates (352) 624-2258 _

2872 1 could a person be partially paralyzed and still be able to 2 blink their eyes for a much longer period of time than you 3 would normally expect if they were injected intravenously? 4 A Well, and the answer is, yes. And that's really 5 in the context of what I said before. The -- actually, 6 given the fact that one hundred milligrams of pancuronium 7 bromide was ultimately injected, that dose in and of itself 8 would be expected, had it been delivered intravenously, to 9 produce extremely rapid complete paralysis, within seconds 10 to, you know, a minute or two at most. 11 Q But that's not -- 12 A So the absence -- if I can finish this -- the 13 absence of complete paralysis tells us that that drug was 14 not injected intravenously. So now, what percentage or what 15 quantity was being absorbed through the subcutaneous route 16 into the vasculature, the blood system, of Mr. Diaz is 17 something that's not known. 18 Q You just don't know? 19 A We -- we cannot know this would have. 20 Q And that's why you say it's possible that he was 21 suffering from the effects of pancuronium bromide and might 22 have been aware that he was suffocating? 23 A That's -- that's why I said that that possibility 24 exists, yes. 25 Q Okay. You were also -- and let me just cover one Owen & Associates (352) 624-2258 _

2873 1 other thing about the drugs before I move on. In terms of 2 the drugs sodium thiopental and pancuronium bromide, are you 3 familiar with the term precipitate? 4 A Yes. 5 Q Do -- if Sodium Pentothal and pancuronium bromide, 6 skip the saline solution, if they were injected together 7 would they precipitate? 8 A If they're mixed together, yes, there is a visible 9 precipitate that occurs. 10 Q And what would be -- and would it precipitate 11 inside the IV line? 12 A Yes. 13 Q So it might be important to know that all the 14 Sodium Pentothal got out of the IV line before the injection 15 of the pancuronium bromide into that line; is that correct? 16 A Well, at least that there should be a flush in 17 between. I mean, if there is a flush of some sort in 18 between the Pentothal and the pancuronium, the injection 19 then of the Pavulon, the pancuronium, would clear the line 20 of any residual Pentothal that was there by virtue of coming 21 in behind the flush. If the Pavulon was given behind, or 22 second, or immediately after the Pentothal without a flush 23 then precipitate certainly could occur. 24 Q And do you know which one precipitates, sodium 25 thiopental, or is it the pancuronium bromide? Owen & Associates (352) 624-2258 _

2874 1 A I believe it's the Pentothal that precipitates. 2 Q Now, you were also asked a question in regard to 3 the -- the sixty cc syringe in regard to touching and 4 pushing with your thumb and the touch, you know, the whole 5 touch aspect and back pressure. 6 Now, if a person was using the heal of their 7 hand -- because now in Florida they have a metal -- they 8 have a stand; is that correct? 9 A Yes. 10 Q It's possible for a person that is using the metal 11 stand to push with the heel of their hand; is that correct? 12 A Oh, yeah, that -- that certainly is possible. 13 Q And that would cause a more rapid infusion of the 14 drugs, is that correct, if you were able to push using your 15 body pushing all the way through? 16 A Yes, you could achieve that -- I mean, you could 17 increase the force with which you were infusing the drugs by 18 using your -- your palm and arm and body rather than -- 19 excuse me, rather than controlling it in a way with your 20 thumb. I mean, the more force that you can achieve with 21 your body the faster you can do it. 22 Q And you don't know how the person who is going to 23 be injecting the drugs has done this, do you? You haven't 24 been at the training to watch this person and how they 25 actually inject the drugs. Is that correct? Owen & Associates (352) 624-2258 _

2875 1 A Correct. I have not been at the training to 2 observe that process as is -- as it's trained in practice. 3 Q And so you don't know how they're pushing the 4 syringe? 5 A No. 6 MR. NUNNELLEY: Asked and answered. 7 THE WITNESS: No, I do not. I do now have 8 firsthand knowledge of how the syringe is being 9 pushed. 10 BY MR. DUPREE: 11 Q Now, do you know in Florida whether or not in 12 their training they're pushing drugs into a person when 13 they're doing the training? 14 A Well, no, I don't know that. I would be very 15 surprised if they were using a person, unless perhaps 16 someone would volunteer. 17 Q Not me. 18 A Okay. I thought I would extend that in case, you 19 know. 20 Q Now, if I represent to you that the way that this 21 is done in training, and the testimony shows, that the 22 person is actually injecting the drugs but they're injecting 23 it into an empty bucket, would an empty bucket have the same 24 type of resistance as drugs entering the venous system in a 25 human being? Owen & Associates (352) 624-2258 _

2876 1 A No, not -- it would not have an identical type of 2 resistance, no. 3 Q There would less resistance; would that be 4 correct? 5 A Yes. In a comparative sense, yes. 6 Q So then training somebody to empty these drugs 7 into an empty bucket versus training a person to empty a 8 syringe into a person, that's different stuff? 9 A Well, there's certainly a difference, you know, 10 from that perspective. 11 MR. DUPREE: Thank you. Judge, no further 12 questions. 13 FURTHER REDIRECT EXAMINATION 14 BY MR. NUNNELLEY: 15 Q Dr. Sperry, is it fair to say that neither the 16 sodium thiopental nor the pancuronium bromide were delivered 17 into Angel Diaz's body through either IV in the manner in 18 which those drugs are intended to be delivered? 19 A Yes, I think that's completely accurate. 20 Q And there is virtually no research on the effects 21 of sodium thiopental and pancuronium bromide when it is 22 delivered subcutaneously into a human being at these doses? 23 A Correct, not that I'm aware of. 24 MR. NUNNELLEY: No further questions. 25 MR. DUPREE: Nothing else, your Honor. Owen & Associates (352) 624-2258 _

2877 1 THE COURT: Okay, doctor. 2 THE WITNESS: Thank you, sir. 3 THE COURT: Okay. Let's take a short break. 4 Do you have any other witnesses? 5 MR. NUNNELLEY: One for sure, maybe two. I 6 think just one and -- 7 THE COURT: Okay. And we'll take a break. 8 Let me know when you're ready. 9 (Thereupon, a short recess was had.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Owen & Associates (352) 624-2258 _

2878 1 C E R T I F I C A T E 2 STATE OF FLORIDA 3 COUNTY OF MARION 4 5 I, Noelani J. Fehr, Stenographic Court Reporter 6 and Notary Public, State of Florida at Large, do 7 hereby certify that I was authorized to and did 8 stenographically report the foregoing proceedings 9 taken in the case of STATE OF FLORIDA VS. IAN 10 LIGHTBOURNCE, CASE NUMBER 42-1981-CF-170; and that the 11 foregoing pages numbered 2776 through 2877 inclusive, 12 constitute a true and correct record of the 13 proceedings to the best of my ability. 14 I FURTHER CERTIFY that I am not a relative, or 15 employee, or attorney, or counsel of any of the 16 parties hereto, nor a relative, or employee of such 17 attorney or counsel, nor am I financially interested 18 in the action. 19 WITNESS MY HAND this 25th day of July, 2007, 20 at Ocala, Marion County, Florida. 21 _______________________________ 22 Noelani J. Fehr 23 Stenographic Court Reporter Notary Public 24 State of Florida at Large 25 My Commission expires: 7-24-2010 Owen & Associates (352) 624-2258 _