United States District Court, M.D. Pennsylvania
YVETTE KANE, District Judge.
Before the Court is Defendants' motion for summary judgment (Doc. No. 205), and Defendants' motion to strike (Doc. No. 240-1.). The motions are fully briefed and ripe for disposition. For the reasons that follow, the Court will grant the motion for summary judgment, and enter summary judgment in favor of Defendants. It will also grant the motion to strike in part and deny it in part.
A. Procedural Background
The original complaint in the above-captioned class action was filed on November 9, 2007. (Doc. No. 1.) The complaint alleged that Pennsylvania's lethal injection protocol poses an unnecessary risk that Plaintiffs will suffer pain in violation of the proscription against cruel and unusual punishment and the guarantees of due process of law under the Eighth and Fourteenth Amendments of the United States Constitution. (Id. ¶ 40.) The Plaintiff class consists of all persons who are presently under a sentence of death in Pennsylvania or who at some point during the pendency of this action will be under a sentence of death by lethal injection in Pennsylvania. Defendants are John E. Wetzel, Secretary of the Pennsylvania Department of Corrections ("DOC") and Marirosa Lamas, Superintendent of the State Correctional Institute at Rockview, both of whom were automatically substituted for former Secretary of the DOC Jeffrey A. Beard, and former Superintendent Franklin J. Tennis. (Doc. No. 206 ¶ 2.)
The full procedural history of this case through late 2012 is set forth in the Court's memorandum order, filed November 6, 2012, denying class Plaintiff Hubert Michael's motion for a stay of execution, and the Court will not recount it here. (See Doc. No. 186.) Following discovery, Defendants filed a motion for summary judgment on May 24, 2013. (Doc. No. 205.) Briefing on the summary judgment motion was initially completed on September 5, 2013.
On November 18, 2013, with disposition of the motion pending, Plaintiffs filed a motion to supplement and develop the record on summary judgment. (Doc. No. 226-2). They asked the Court to re-open discovery for the limited purpose of uncovering further information regarding the laboratory that analyzed the drugs to be used in conjunction with the scheduled execution of Mr. Michael. (Id.) The Court granted the motion and gave Plaintiffs a period of time in which to conduct limited discovery, and further granted each party the opportunity to file supplemental briefing. On June 5, 2014, once Plaintiffs filed their supplemental discovery and the parties filed their respective supplemental briefs, Defendants filed a motion to strike three documents the Plaintiffs sought to introduce into the record. That motion is also before the Court.
B. Material Facts
1. The execution process
At issue are Pennsylvania's procedures for lethal injection, set forth principally in Capital Case Administration Policy Number 6.5.8. (Doc. No. 206 ¶ 3.) The protocol requires that all members of the lethal injection team "must be trained heath care professionals who have completed intravenous therapy training and are experienced in performing venipuncture." (Id. ¶ 16.) There are currently three members of the lethal injection team, all of whom meet these requirements. (Id. ¶ 17.) The lethal injection procedure is rehearsed at least three times per year, with additional rehearsals whenever an execution is imminent. (Id. ¶¶ 18-19.)
The protocol calls for the injection of three drugs in order to effectuate execution of the prisoner. (Doc. No. 206 ¶ 4.) The first drug injected into the prisoner will be either 5, 000 mg of pentobarbital or 3 gm sodium thiopental. (Id. ¶ 5.) Half of this first drug will be injected into the left arm, and the other half will be injected into the right arm. (Id.) Once the first drug is administered, the left IV line will be flushed with saline. (Id. ¶ 6.)
Once the first drug is administered, regardless of whether an electroencephalograph (EEG) is used to monitor consciousness, steps are taken in order to confirm that the prisoner is unconscious. (Doc. No. 206 ¶¶ 7-8.) The prisoner's name is called in a loud voice and the prisoner is observed for any reaction. (Id. ¶ 9.) Moreover, the procedure calls for tactile stimulation, such as brushing the prisoner's eyelashes and shaking his shoulders to test his or her responsiveness. (Id.) Both a lethal injection team member and a Department of Corrections supervisory employee must monitor the prisoner's consciousness, and both must agree that the prisoner is unconscious before the second drug can be administered. (Id. ¶¶ 10-11.) If they do not agree that the inmate is unconscious, an equal amount of the first drug is re-administered. (Id. ¶ 12.)
Next, the second drug, pancuronium bromide, is injected by IV into the left arm in two 50 mg doses, and the IV is flushed with saline. (Doc. No. 206 ¶ 13.) Finally, the third drug, potassium chloride, is injected into the prisoner's left arm in two 50 meq doses, at which time the lethal injection team will monitor for asystole, the absence of any electrical activity in the prisoner's heart. (Id. ¶ 14.) If asystole is not found within two minutes ...