Family Sues Ohio for Botched Execution

COLUMBUS, Ohio (CN) - Ohio used an untested, unapproved drug mix for a lethal injection that caused an inmate to suffer nearly 25 minutes of arching, gurgling, gasping and choking in front of his family, the man's son claims in Federal Court.

Dennis R. McGuire sued Ohio's Director of Rehabilitation and Corrections Gary Mohr, Southern Ohio Correctional Facility Warden Donald Morgan, 30 anonymous members of the execution team, and Hospira Inc., for the Jan. 16 execution of his father, Dennis B. McGuire.

McGuire's botched execution at the Southern Ohio Correctional Facility in Scioto County made national news.

His son claims the state ran out of pentobarbital - its preferred drug for executions - and decided for the first time to use a mixture of midazolam and hydromorphone, manufactured by Hospira.

McGuire's request for a stay of execution to determine if the mixture fell within legal guidelines for cruel and unusual punishment was denied, despite testimony from Dr. David Waisel described in the complaint.

"Dr. Waisel testified that Midazolam is a Benzodiazepine and while it can induce sedation, one can still consciously experience one's surroundings and feel pain and horrific stimuli, including air hunger, while under sedation," the complaint states.

"Dr. Waisel defined air hunger as the inability to satisfy the physiologic and psychologic urge to breathe, and likened it to suffocation.

"Dr. Waisel testified that hydromorphone is an opioid and causes ventilator depression, and it is not generally administered to induce anesthesia.

"Dr. Waisel testified that Ohio's execution protocol is problematic because it does not account for the weight or body mass index of the inmate, as the dosage to be administered in every execution is identical. Dr. Waisel testified this could lead to the inmate being administered a substantially lower amount of the clinically untested drug mixture than necessary, likely leading to a prolonged death.

"Dr. Waisel testified that Ohio's execution protocol has always included administration of general anesthesia, illustrating the intent of preventing prolonged pain and suffering.

"Dr. Waisel testified that even in a sedated state, this clinically untested drug mixture still leaves a substantial likelihood of experiencing air hunger. Dr. Waisel concluded that Decedent would have a substantial risk of experiencing air hunger as the depressant effects of hydromorphone and midazolam take effect. Dr. Waisel testified that these effects will be further exasperated due to McGuire's physical positioning during the execution, and specifically because he would be lying flat, with his limbs and body under restraint, preventing him from sitting up. This would prevent him from clearing the obstruction felt in his respiratory system, which would repeat. Dr. Waisel described this as the "same agonizing and horrifying feeling as suffocation."

Dennis R. McGuire says he was present at the execution, along with his wife Missy and sister Amber, and had an unobstructed view of the entire event.

"At approximately 10:27am, the warden held a microphone to decedent's mouth and asked for his last words. Decedent first addressed the victim's family, who were also seated in the witness room. He thanked them for writing him a letter in which they forgave him. He said the letter meant a lot to him, and told them, 'God bless.' Decedent then addressed his family, saying, 'I love you' and, 'I will see you on the other side.'

"The warden then removed the microphone, which he put away, and buttoned his jacket, which was a signal to start the injection. At approximately 10:27:49 a.m., syringe #1 was started."

McGuire waved goodbye to his family and, according to the complaint, "within 30 seconds of the waving stopping, at approximately 10:31 AM to 10:32 AM, decedent took a deep breath and both hands clenched into fists. He then made a very loud snorting sound which could be heard in the witness room without any sound amplification. Before that, no sound could be heard inside the execution chamber without the microphone.

"Decedent began writhing in pain, pushing his head back and arching his back, pushing against the gurney. He was able to get his back and neck off the gurney 3 to 4 inches, despite being strapped down at the waist, feet and hands.

"Decedent then made an extremely loud noise that sounded like grunting and fighting for air at the same time. He repeated this several times over several minutes.

"While decedent was gasping and arching his back, the warden and the other ODRC officials in the execution chamber had horrified looks on their faces, with wide eyes and shocked expressions.

"Decedent repeated cycles of snorting, gurgling and arching his back, appearing to writhe in pain. It looked and sounded as though he was suffocating. His stomach was rising and falling quickly, as he took quick, shallow breaths. This continued for nearly 19 minutes. The noises he made were audible the entire time, though they gradually quieted as he was dying. Decedent was conscious during the majority of this time.

"Decedent finally stopped moving at approximately 10:50am."

According to the complaint, the warden marked the official time of death as 10:53 a.m., 24 minutes after the proceedings began.

Dennis R. McGuire claims Hospira knew its drugs were likely to cause unnecessary pain and suffering during the execution and that the drugs have not been approved by the FDA for lethal injections.

He seeks compensatory and punitive damages for cruel and unusual punishment, product liability, wrongful death, negligence, fraud and intentional infliction of emotional distress, and an order declaring the method of lethal injection used on his father was and is cruel and unusual punishment.

He is represented by Jon Rion of Rion, Rion and Rion, in Dayton.

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