BRIEF OF ANESTHESIA AWARENESS CAMPAIGN, INC.

http://www.oranous.com/florida/MarkSchwab/awareness.htm

http://www.oranous.com/florida/MarkSchwab/AnesthesiaAwarenessCampaign.pdf

No. 07-5439

IN THE

 
 


RALPH BAZE ET AL.,

Petitioners,

v.

JOHN D. REES ET AL.,

Respondents.

On Writ of Certiorari to the

Suprem e Cour t of Ke ntucky

BRIEF OF

ANESTHESIA AWARENESS CAMPAIGN, INC.

AS AMICUS CURIAE

IN SUPPOR T OF N EITH ER PARTY

Richard M. Wyner

Counsel of Record

Sallie F. Pullman

Amanda S. Hitchcock

GOODWIN PROCTER LLP

901 New York Ave., NW

Washington, DC 20001

(202) 346-4000

November 13, 2007 Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................ii

INTEREST OF AMICUS CURIAE AND

SUMMARY OF ARGUMENT................................1

ARGUMENT ..........................................................2

I. Anesthesia Awareness Is a Real and

Widely-Recognized Medical Complication..................................................................

2

II. Anesthesia Awareness Can Cause

Severe Physical and Psychological Pain. ..... 4

III. Whenever General Anesthesia Is Used,

Measures Can—and Must—Be Taken

To Minimize the Risk of Anesthesia

Awareness. .................................................... 8

CONCLUSION.....................................................12

ii

TABLE OF AUTHORITIES

OTHER AUTHORITIES: Page

American Association of Nurse Anesthetists,

Position Statement 2.12: Unintended

Awareness Under General Anesthesia

(2007), available at http: www.aana.com....... 9–10

American Society of Anesthesiologists Task

Force on Intraoperative Awareness, Practice

Advisory for Intraoperative Awareness

and Brain Function Monitoring, 104

Anesthesiology 847 (2006) .............................. 8–11

Anesthesia Awareness Campaign, Inc.,

Suggestions for Improvement in the

Anesthesia System (2007), available at

http://www.anesthesiaawareness.com/

improvements.html............................................. 10

M.M. Ghoneim, Awareness During Anesthesia,

in Awareness During Anesthesia

(M.M. Ghoneim ed., 2001) ............................ 2–3, 9

Joint Commission on Accreditation of

Healthcare Organizations, Sentinel Event

Alert Issue 32, Preventing, and Managing

the Impact of, Anesthesia Awareness (Oct.

6, 2004), available at http://www.

jointcommission.org/SentinelEvents/Senti

nelEventAlert/sea_32.htm...........................passim

Claes Lennmarken & Gunilla Sydsjo,

Psychological Consequences of Awareness

and Their Treatment, 21 Best Practice &

Research Clinical Anesthesiology 357

(2007)............................................................. 3, 6–7

N. Moerman, B. Bonke, & J. Oosting,

Awareness and Recall During General

Anesthesia: Facts and Feelings, 79

Anesthesiology 454 (1993) .................................... 7

Richard J. Pollard et al., Intraoperative

Awareness in a Regional Medical System:

A Review of Three Years’ Data, 106

Anesthesiology 269 (2007) .......................... 3, 9, 11

Peter S. Sebel et al., The Incidence of Awareness

During Anesthesia: A Multicenter

United States Study, 99 Anesthesia &

Analgesia 833 (2004)............................................. 3

Michael Wang, The Psychological Consequences

of Explicit and Implicit Memories

of Events During Surgery, in Awareness

During Anesthesia 145 (M.M. Ghoneim

ed., 2001) ............................................................... 8

INTEREST OF AMICUS CURIAE AND

SUMMARY OF ARGUMENT1

The Anesthesia Awareness Campaign, Inc. (“AAC”)

is a non-profit organization founded in 1998 that is

dedicated to helping victims, providing education,

and working to prevent anesthesia awareness.

Anesthesia awareness, also called intraoperative

awareness or conscious paralysis, is the phenomenon

of being mentally alert while supposedly under full

general anesthesia. In some instances, victims are

able to feel excruciating pain but are unable to

communicate their awareness because they are

paralyzed by a neuromuscular blocker. The AAC

was founded by Carol Weihrer who, having received

general anesthesia and been paralyzed by a neuromuscular

blocker, was conscious and aware when her

eye was surgically removed.

The AAC’s mission is “to prevent patients (even

one) from experiencing anesthesia awareness and its

consequences through education, prevention, and

empowerment by replacing ignorance or fear with

knowledge.” The AAC’s Board of Directors includes

medical professionals and anesthesiologists as well

as Ms. Weihrer. The AAC has worked with the Joint

Commission on Accreditation of Healthcare Organizations

(“JCAHO”) on raising awareness about this

medical complication. JCAHO consulted with the

1 No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund preparation of this brief. No person other

than amicus curiae, its members, or its counsel made a

monetary contribution to its preparation or submission. The

parties have consented to the filing of this brief and their

written consents are being filed today with the Clerk.

2

AAC when drafting JCAHO’s 2004 Sentinel Event

Alert Issue 32 on preventing and managing cases of

anesthesia awareness.

The AAC takes no position on the requirements of

the Eighth Amendment. However, because the execution

protocol at issue in this case carries a risk for

anesthesia awareness, the AAC believes that it is

essential for the Court to be fully informed about

three things. First, anesthesia awareness is a real

and recognized medical complication. Second, when

anesthesia awareness occurs, it can produce severe

physical and psychological pain, particularly when

general anesthesia is combined with a neuromuscular

blocker that prevents patients from communicating

with care providers. Third, the AAC and

the medical community have identified safeguards

that can— indeed, must— be must be employed whenever

general anesthesia is used, in order to minimize

the risk of such devastating consequences. These

safeguards include refraining from the use of neuromuscular

blockers except when absolutely medically

necessary; using reliable monitoring of anesthetic

depth by an anesthesia professional; avoiding

intravenous-only administration of anesthesia; and

having trained anesthesia professionals administer

the general anesthesia. Each of these points is more

fully developed below.

ARGUMENT

I. Anesthesia Awareness Is a Real and

Widely-Recognized Medical Complication.

Anesthesia awareness has been recognized as a

potential medical complication since as early as

3

1846.2 In 1960, the pioneer medical study on the

incidence of awareness under general anesthesia was

published.3 Anesthesia awareness is reported to

occur in between 0.1% and 0.9% of general anesthesia

cases— and those are cases where anesthesia

is typically administered by a trained and licensed

anesthesia professional.4 Thus, at a minimum,

awareness occurs in one out of every one thousand

cases of general anesthesia, equaling some 26,000

occurrences of anesthesia awareness each year in the

United States.5

Anesthesia awareness may occur even where the

patient is not paralyzed by use of a neuromuscular

blocker. For purposes of this brief, however, the

AAC focuses on cases of anesthesia awareness where

patients receive both anesthesia and a neuromuscular

blocker that prevents them from indicating to the

surgical team that they are aware despite the general

anesthesia.

2 See M.M. Ghoneim, Awareness During Anesthesia, in

Awareness During Anesthesia 1, 3 (M.M. Ghoneim ed., 2001).

3 See Claes Lennmarken & Gunilla Sydsjo, Psychological

Consequences of Awareness and Their Treatment, 21 Best Practice

& Research Clinical Anesthesiology 357, 358 (2007).

4 See Richard J. Pollard et al., Intraoperative Awareness in a

Regional Medical System: A Review of Three Years’ Data, 106

Anesthesiology 269, 269 (2007) (summarizing findings from

prior studies).

5 Peter S. Sebel et al., The Incidence of Awareness During

Anesthesia: A Multicenter United States Study, 99 Anesthesia

& Analgesia 833, 836–37 (2004).

4

II. Anesthesia Awareness Can Cause Severe

Physical and Psychological Pain.

AAC’s participants bear personal witness to the

awful physical and psychological injuries that can

arise as a result of anesthesia awareness. They were

rendered unconscious by anesthesia, only to suddenly

find themselves awake and aware but unable to

move or call out for help. They were filled with

anxiety and panic, they felt pain, and they suffered

grievous physical and psychological damage.6

Kathleen LaBrie is an AAC participant who

received general anesthesia and a neuromuscular

blocker for an operation opening both sinus cavities

and a deviated septum. She describes her experience

as follows:

I’ll never forget what happened. I realized something

was very, very wrong when I awoke to the

grinding and pushing in my nose. I also could

hear conversations. I was awake and unable to

let anyone know. I really thought I was slowly

dying and not one person in that room cared. If

anyone wants to know what HELL is like this is

it, what happened to me. This was the most

horrifying, terrifying, nightmare, living hell of

my life. The experience created post-traumatic

stress disorder, outbursts of anger for no reason,

problems with trust, concentration, and

socializing, panic attacks, emotional numbness,

6 AAC President Carol Weihrer testified in the trial in this

case as to her personal experience with anesthesia awareness,

and the transcript of her testimony is set forth in the Joint

Appendix at 387–400. Her testimony is also briefly

summarized in the Petitioners’ Brief at 11.

5

nightmares, and I am easily startled. I have the

feeling of needing to be on guard at all times. It

was the worst thing that ever happened to me,

and I don’t know who I am now. I consider

conscious paralysis worse than death . . . .

AAC participant Kelly Haapala received general

anesthesia and a neuromuscular blocker for a hipsocket

joint replacement after a car accident. Ms.

Haapala’s description of becoming conscious during

surgery is as follows:

Halfway into the surgery, I started to awaken. I

first couldn’t figure out where I was and then as

the drugs wore off more, I realized where I was

. . . I could feel the tugging and pushing on my

left side and slowly the pain began to surface. I

kept telling myself it must be a nightmare but

the pain was so unbearably severe that I began

to worry that my body would not be able to

withstand this stress and pain and that I would

die! It was as if a hot poker was being jammed

into me. . . . I felt like they were killing me and I

needed to do anything I could to move and let

them know I was awake!

I still have nightmares that this happened to me

and even compared to the accident, this is the

worst terror that I’ve ever experienced . . . I have

problems with sleeping, problems with trusting,

feel like I need to try to make every day for my

children and family as good as it can be because I

am so scared that our lives together will be taken

away.

For someone to ever experience conscious

paralysis and be awake during a procedure and

6

feel the pain like I did, it is just worse than death

and is inhumane!

Diana Todd, a participant of AAC who suffered

conscious paralysis during hysterectomy surgery,

offers this account of her experience:

I was awake, aware, paralyzed, utterly terrified,

unable to do anything about it no matter how

hard I tried, and I wished I could die. I remember

thinking, “Take me now, please take me.”

This was the most traumatizing experience of my

life. It takes away your basic humanity. That

kind of terror is cruel beyond description. There

is simply no way to adequately describe what it

is like to have every single scrap of your own self

control stripped away. You can’t even scream to

relieve the pressure.

Amongst the problems in the aftermath of my

trauma, I have nightmares, crippling indecision,

fears, panic attacks, some claustrophobia,

inability to sleep for long periods, sleep restfully,

without a light, or to sleep on a normal schedule,

and I am exhausted all the time.

I consider conscious paralysis to be cruel, dehumanizing,

unnecessary, and unforgivable.

Descriptions of anesthesia awareness in the published

medical literature echo these accounts from

the AAC. It is well recognized that victims of anesthesia

awareness endure “immediate, intraoperative

suffering . . . [and that] long-lasting severe mental

symptoms may develop.”7 Medical studies indicate

that anesthesia awareness can create “great anxiety

7 Lennmarken, supra note 3, at 357.

7

and panic” and terrible sensations of alarm and

fright, including “fears of impending death.,”8 Aware

patients may sense pain, pressure, or other stimuli

associated with the surgical procedure, but, because

of their paralysis, they are unable to notify their

physicians.9

The following are descriptions of several patients’

experiences with anesthesia awareness detailed in

the Moerman study:

Woke up suddenly, feeling intensive pain in

the middle of her chest, tried to move

backwards and scream but was unable to do

so, terrified as if in a nightmare.

Felt intense pain in, and heavy pulling on, her

abdomen, heard voices, could not move, felt

powerless, tried to warn but was unable to do

so, was frightened she might suffer more pain.

Felt and heard being manipulated on his leg,

heard drilling and tightening of screws . . .

tried to warn anyone but was unable to do so

. . . afraid to feel more pain, panicked, thought

he might never get out of it and might become

comatose.

Felt increasing pain until pain was unbearable

. . . wanted to warn anyone but was unable to

do so, unable to talk, powerless.10

8 Id.

9 N. Moerman, B. Bonke, & J. Oosting, Awareness and Recall

During General Anesthesia: Facts and Feelings, 79

Anesthesiology 454, 461–62 (1993).

10 Id. at 460.

8

It is likewise well documented in the medical literature

that the experience of anesthesia awareness

while a patient is paralyzed and unable to communicate

can traumatize a person: “The realization of

consciousness of which operating room staff are

evidently oblivious, along with increasingly frenetic

yet futile attempts to signal with various body parts,

leads rapidly to the conclusion that something has

gone seriously wrong,” and can trigger “shock and

traumatization.”11 This trauma can cause posttraumatic

stress disorder (PTSD) and other serious

psychological consequences such as “recurrent

nightmares related to paralysis, preoccupation with

death, sleep anxiety and initial insomnia.”12 These

acute post-awareness psychological complications

underscore the severity of the actual trauma that

occurs during anesthesia awareness.

III. Whenever General Anesthesia Is Used,

Measures Can—and Must—Be Taken To

Minimize the Risk of Anesthesia Awareness.

In light of the increased awareness of the existence

and the potentially devastating nature of anesthesia

awareness, the JCAHO,13 the American Society of

11 See Michael Wang, The Psychological Consequences of

Explicit and Implicit Memories of Events During Surgery, in

Awareness During Anesthesia 145, 147–48 (M.M. Ghoneim, ed.

2001).

12 Id. at 150.

13 Joint Commission on Accreditation of Healthcare

Organizations, Sentinel Event Alert Issue 32, Preventing, and

Managing the Impact of, Anesthesia Awareness (Oct. 6, 2004),

available at http://www.jointcommission.org/SentinelEvents/

SentinelEventAlert/sea_32.htm [hereinafter JCAHO Alert].

9

Anesthesiologists (“ASA”),14 and the American Association

of Nurse Anesthetists (“AANA”)15 have all

issued practice advisories for the prevention and

management of anesthesia awareness. The AAC

strongly believes that any use of general anesthesia

must be carried out in accordance with medical practices

that can greatly reduce the risk that a person

will suffer anesthesia awareness.

First, when general anesthesia is used, a neuromuscular

blocker should not be used unless doing so

is absolutely medically necessary.16 One advisory

cautions anesthesia professionals to “[a]void muscle

paralysis unless absolutely necessary, and, even

then, avoid total paralysis.”17 In one 2007 medical

study, each confirmed instance of anesthesia awareness

involved the use of a neuromuscular blocker

with general anesthesia.18

Second, a reliable form of anesthesia monitoring

should be used on persons under general anesthesia.

Such monitoring can track indicators of physiologic

14 American Society of Anesthesiologists Task Force on

Intraoperative Awareness, Practice Advisory for Intraoperative

Awareness and Brain Function Monitoring, 104 Anesthesiology

847 (2006) [hereinafter ASA Practice Advisory].

15 American Association of Nurse Anesthetists, Position

Statement 2.12: Unintended Awareness Under General Anesthesia,

available at www.aana.com (follow “Resources: Practice

Documents” hyperlink) [hereinafter AANA Position Statement].

16 See JCAHO Alert, supra note 13; ASA Practice Advisory,

supra note 14, at 850; AANA Position Statement, supra note 15,

Table II; Ghoneim, supra note 2, at 13–14.

17 JCAHO Alert, supra note 13.

18 Pollard et al., supra note 4, at 270.

10

and motor responses to painful stimuli, such as high

blood pressure, fast heart rate, movement, or

hemodynamic changes.19 The ASA recommends

anesthesia monitoring by “multiple modalities” and

cautions that the “use of neuromuscular blocking

drugs may mask purposeful or reflex movements and

adds additional importance to the use of monitoring

methods that assure the adequate delivery of anesthesia.”

20

The AAC believes that brain wave activity monitoring,

in addition to monitoring of physiologic and

motor responses, is a necessary and important part

of monitoring for anesthesia awareness.21 The Food

and Drug Administration has endorsed this view,

finding that an anesthesia professional’s “[u]se of

BIS [a medical device that monitors brain wave

activity] monitoring to help guide anesthetic administration

may be associated with the reduction of the

incidence of awareness with recall in adults during

general anesthesia and sedation.”22

Third, avoiding delivery of general anesthesia

solely by intravenous means can reduce the chance

19 JCAHO Alert, supra note 13; ASA Practice Advisory, supra

note 14, at 851, 854; AANA Position Statement, supra note 15;

Ghoneim, supra note 2, at 17.

20 ASA Practice Advisory, supra note 14, at 854. See also

AANA Position Statement, supra note 15.

21 Anesthesia Awareness Campaign, Inc., Suggestions for

Improvement in the Anesthesia System, available at http://www.

anesthesiaawareness.com/improvements.html.

22 JCAHO Alert, supra note 13.

11

that a person will suffer anesthesia awareness.23

Instead, it is generally recommended that anesthesia

be delivered by both inhalant and intravenous

means.24

Finally, general anesthesia should be administered

only by trained anesthesiology personnel.25 In a

surgical setting, an anesthesia professional administers

the anesthesia and remains at the patient’s

bedside, monitoring real-time indicators to track

anesthetic depth. A trained professional helps

ensure that patients given general anesthesia receive

the appropriate level of medical care to minimize the

risk of conscious paralysis.

In the AAC’s view, these measures must be

employed to minimize the risk that anyone undergoing

general anesthesia will suffer the terrible

physical and psychological injuries associated with

anesthesia awareness.

23 JCAHO Alert, supra note 13; ASA Practice Advisory, supra

note 14, at 850.

24 See JCAHO Alert, supra note 13.

25 See Pollard, supra note 4, at 272 (“Clinical anesthesiologists

supervising registered nurse anesthetists in the anesthesia

care team model of practice delivered all anesthetics in

this study.”). A fully-trained anesthesiologist must fulfill three

years of residency experience, after medical school and a oneyear

internship. A nurse anesthetist must complete a four-year

baccalaureate degree, several years of nursing experience in an

acute care setting, and then a master’s degree of two to three

years.

12

CONCLUSION

The Court’s decision in this case should take into

account that any use of general anesthesia entails a

significant risk of anesthesia awareness, especially

when combined with a neuromuscular blocker; that

the experience of anesthesia awareness is often a

devastatingly painful one, as the accounts from the

AAC’s participants show; and that there are methods

for minimizing the risk of anesthesia awareness that

must be employed in order to avoid the unnecessary

imposition of such injuries on any person undergoing

general anesthesia.

Respectfully submitted,

Richard M. Wyner

Counsel of Record

Sallie F. Pullman

Amanda S. Hitchcock

GOODWIN PROCTER LLP

901 New York Ave., NW

Washington, DC 20001

(202) 346-4000

November 13, 2007 Counsel for Amicus Curiae

Stay application to USSC in Schwab

http://www.supremecourtus.gov/docket/07a383.htm No. 07A383
Title:	Mark Dean Schwab, Applicant v. Florida
Docketed:
Lower Ct:	Supreme Court of Florida

Case Nos.:

(07-1603)

~~~Date~~~	~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Nov 9 2007	Application (07A383) for stay of execution of sentence of death, submitted to Justice Thomas.

---

~~Name~~~~~~~~~~~~~~~~~~~~~	~~~~~~~Address~~~~~~~~~~~~~~~~~~	~~Phone~~~
Attorneys for Petitioner:
Mark S. Gruber	3801 Corporex Park Drive	(813) 740-3544
	Suite 210
	Tampa, FL 33619-1136
Party name: Mark Dean Schwab
Attorneys for Respondent:
Kenneth S. Nunnelley	Senior Assistant Attorney General	(386) 238-4990
	444 Seabreeze Blvd.
	Suite 500
	Daytona Beach, FL 32118

CIVIL DOCKET FOR CASE #: 6:07-cv-01798-ACC-KRS - Mark Schwab

http://www.oranous.com/florida/MarkSchwab/civildocket.htm DEATH, STAYED

U.S. District Court
Middle District of Florida (Orlando)
CIVIL DOCKET FOR CASE #: 6:07-cv-01798-ACC-KRS

Schwab v. Secretary, Department of Corrections Assigned to: Judge Anne C. Conway Referred to: Magistrate Judge Karla R. Spaulding Cause: 42:1983 Prisoner Civil Rights

Date Filed: 11/13/2007 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff
Mark Dean Schwab	represented by	Daphney Elaine Gaylord Capital Collateral Regional Counsel Suite 210 3801 Corporex Pk Dr Tampa, FL 33619-1004 813/740-3544 Ext 115 Fax: 813/740-3554 Email: gaylord@ccmr.state.fl.us LEAD ATTORNEY ATTORNEY TO BE NOTICED Mark S. Gruber Capital Collateral Regional Counsel Suite 210 3801 Corporex Pk Dr Tampa, FL 33619-1004 813/740-3544 ext: 103 Fax: 813/740-3554 Email: gruber@ccmr.state.fl.us LEAD ATTORNEY ATTORNEY TO BE NOTICED Peter J. Cannon Capital Collateral Regional Counsel Suite 210 3801 Corporex Pk Dr Tampa, FL 33619-1004 813/740-3544 Fax: 813/740-3554 Email: cannon@ccmr.state.fl.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
V.
Defendant
Other Unknown Employees and Agents Florida Department of Corrections
Defendant
Secretary, Department of Corrections	represented by	Kenneth S. Nunnelley Office of the Attorney General Dept. of Legal Affairs 444 Seabreeze Blvd., 5th Floor Suite 500 Daytona Beach, FL 32127 386/238-4990 Fax: 386/226-0457 Email: Ken_Nunnelley@oag.state.fl.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed	#	Docket Text
11/13/2007	1	CIVIL RIGHTS COMPLAINT against all defendants filed by Mark Dean Schwab. (Attachments: # 1 Civil Cover Sheet)(LAK) (Entered: 11/13/2007)
11/13/2007	2	EMERGENCY MOTION to stay execution by Mark Dean Schwab. (LAK) (Entered: 11/13/2007)
11/13/2007	3	ORDER transferring case to Judge Anne C. Conway. Signed by Judge John Antoon II for Judge Patricia C. Fawsett on 11/13/2007. (LAK) (Entered: 11/13/2007)
11/13/2007		Case reassigned to Judge Anne C. Conway. New case number: 6:07-cv-1798-22KRS. Chief Judge Patricia C. Fawsett no longer assigned to the case. (LAK) (Entered: 11/13/2007)
11/13/2007	4	ORDER: The Plaintiff's Emergency Motion to Stay Execution is scheduled for oral argument on Wednesday November 14, 2007 at 10:00 AM in Courtroom 6A. Signed by Judge Anne C. Conway on 11/13/2007. (Conway, Anne) (Entered: 11/13/2007)
11/14/2007	5	RESPONSE in opposition re 2 MOTION to stay filed by Secretary, Department of Corrections, other unknown employees and agents. (LAK) Modified on 11/14/2007 (LAK). (Entered: 11/14/2007)
11/14/2007	6	MOTION to dismiss complaint with memorandum in support by Secretary, Department of Corrections, other unknown employees and agents. (LAK) (Entered: 11/14/2007)
11/14/2007	7	ORDER granting 2 Motion to stay execution and staying case. Signed by Judge Anne C. Conway on 11/14/2007. (Conway, Anne) (Entered: 11/14/2007)
11/14/2007	8	ORDER on motion to stay execution. Signed by Judge Anne C. Conway on 11/14/2007. (Conway, Anne) (Entered: 11/14/2007)
11/14/2007	9	Minute Entry. Proceedings held before Judge Anne C. Conway: Motion Hearing held on 11/14/2007 re 2 MOTION to stay filed by Mark Dean Schwab. Court Reporter: Sandy Tremel (CH) (Entered: 11/14/2007)

The federal order for stay in Mark Schwab

http://www.oranous.com/florida/MarkSchwab/federalstayorder.htm

http://www.oranous.com/florida/MarkSchwab/federalorder.pdf

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

MARK DEAN SCHWAB,

Plaintiff,

v. CASE NO. 6:07-cv-1798-Orl-22KRS

JAMES R. MCDONOUGH, et al,

Defendants.

ORDER

This case is before the Court on the emergency motion to stay execution (Doc. No.

2, filed November 13, 2007) filed by Mark Dean Schwab, a death-sentenced prisoner in state

custody.

I. PROCEDURAL BACKGROUND

On May 14, 1991, Plaintiff was charged by indictment with one count of first-degree

murder, one count of sexual battery upon a child, and one count of kidnaping a child under

thirteen. After a bench trial, Plaintiff was found guilty as charged on all counts in the

indictment. Plaintiff waived his right to a jury at the penalty phase proceedings, and the

state trial judge sentenced him to death on the first degree murder count, followed by

consecutive life sentences on the other two counts. The Florida Supreme Court affirmed

the convictions and sentences, Schwab v. State, 636 So. 2d 3 (Fla. 1994), and the United States

Supreme Court denied his petition for writ of certiorari. Schwab v. Florida, 513 U.S. 950

(1994).

Case 6:07-cv-01798-ACC-KRS Document 8 Filed 11/14/2007 Page 1 of 9

2

Plaintiff filed a motion for post-conviction relief pursuant to Florida Rule of

Criminal Procedure 3.850 raising a variety of claims. The state trial court ultimately denied

each of the claims, and the Florida Supreme Court affirmed the denial. Schwab v. State, 814

So. 2d 402 (Fla. 2002). In the same order, the Florida Supreme Court also denied Plaintiff’s

Petition for Writ of Habeas Corpus. Id.

Plaintiff filed a petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254,

which this Court denied. See Case Number 6:03-cv-536-Orl-22JGG, Doc. Nos. 1 & 29. The

Eleventh Circuit Court of Appeals affirmed the denial, Schwab v. Crosby, 451 F.3d 1308 (11th

Cir. 2006), and the United States Supreme Court denied the petition for writ of certiorari,

Schwab v. McDonough, 127 S.Ct. 1126 (2007).

On July 18, 2007, the Governor signed a death warrant scheduling Plaintiff’s

execution for 6:00 p.m., November 15, 2007.

On August 15, 2007, Plaintiff filed a motion to vacate sentence or stay execution

pursuant to Florida Rule of Criminal Procedure 3.851(c)(2) raising two claims: (1) Florida’s

lethal injection method of execution violated the Eighth and Fourteenth Amendments and

corresponding provisions of the Florida Constitution, and (2) newly discovered evidence

revealed that Mr. Schwab suffers from neurological brain impairment which makes his

sentence of death constitutionally unreliable. The state trial court denied relief as to both

claims without conducting an evidentiary hearing, and the Florida Supreme Court affirmed

the denial. Schwab v. State, No. SC07-1603, 2007 WL 3196523 (Fla. November 1, 2007).

Case 6:07-cv-01798-ACC-KRS Document 8 Filed 11/14/2007 Page 2 of 9

3

Plaintiff subsequently sought permission from the Eleventh Circuit Court of

Appeals to file a second or successive federal habeas corpus petition. The only claim

Plaintiff sought to raise in his second petition involved the constitutionality of Florida’s

lethal injection procedures and protocols. The application was denied. In re: Mark Dean

Schwab, No. 07-15258, 2007 WL 3317601 (11th Cir. November 9, 2007).

Plaintiff next filed a successive Rule 3.851 motion to vacate sentence or stay

execution in the state trial court raising two claims of newly discovered evidence, one

regarding the testimony of the State’s expert at the penalty phase and one challenging

Florida’s method of lethal injection based on notes from mock execution training conducted

in July of 2007. An evidentiary hearing was conducted on November 13, 2007, after which

the state trial judge denied Plaintiff’s motion.

On November 13, 2007, Plaintiff initiated the instant action by filing a civil rights

complaint pursuant to 42 U.S.C. § 1983 (Doc. No. 1) and an emergency motion to stay

execution (Doc. No. 2).

II. SUMMARY OF THE COMPLAINT

At this time, the Court is only considering the merits of the emergency motion to

stay; however, a review of the allegations in the complaint is necessary for a complete

analysis. In the complaint, Plaintiff seeks declaratory and injunctive relief to prevent

Defendants from using Florida’s current lethal injection procedures to execute him.

According to Plaintiff, the current protocols violate his right to be free from cruel and

unusual punishment under the Eighth and Fourteenth Amendments. Plaintiff’s challenge

Case 6:07-cv-01798-ACC-KRS Document 8 Filed 11/14/2007 Page 3 of 9

4

is multi-faceted: first, he argues that the combination of drugs unlawfully risks subjecting

him to an excruciatingly painful and tortuous death; second, he contends that the

anesthesia procedures lack medically necessary safeguards; third, he avers that the existing

procedures do not require personnel who have minimum qualifications or expertise; and

fourth, he asserts that Defendants do not have appropriate procedures or equipment to

deal with emergencies.

III. MERITS OF THE EMERGENCY MOTION TO STAY EXECUTION

“Filing an action that can proceed under § 1983 does not entitle the complainant to

an order staying an execution as a matter of course.” Hill v. McDonough, 126 S.Ct. 2096,

2104 (2006). “[A] stay of execution is an equitable remedy; [i]t is not available as a matter

of right.” Id. In considering whether to grant a stay, a court should consider the following

factors: (1) “the State’s strong interest in enforcing its criminal judgments without undue

interference from the federal courts”; (2) whether the inmate has satisfied “all of the

requirements for a stay, including a showing of a significant possibility of success on the

merits”; (3) the “strong equitable presumption” against issuing a stay when the inmate

could have brought the claim earlier and thereby avoided the need for a stay; and (4)

protecting the State from “dilatory or speculative suits.” Id.

Applying these criteria to the present application, the Court concludes that a stay

is warranted. The overriding consideration in this case is that some of the very same issues

Plaintiff presents here are currently pending for decision before the Supreme Court of the

Case 6:07-cv-01798-ACC-KRS Document 8 Filed 11/14/2007 Page 4 of 9

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United States. In the case of Baze v. Rees, 128 S.Ct. 372 (Oct. 3, 2007), the Supreme Court

granted review to consider the following questions:

I. Does the Eighth Amendment to the United States

Constitution prohibit means for carrying out a method of

execution that create an unnecessary risk of pain and suffering

as opposed to only a substantial risk of the wanton infliction of

pain?

II. Do the means for carrying out an execution cause an

unnecessary risk of pain and suffering in violation of the

Eighth Amendment upon a showing that readily available

alternatives that pose less risk of pain and suffering could be

used?

III. Does the continued use of sodium thiopental,

pancuronium bromide, and potassium chloride, individually

or together, violate the cruel and unusual punishment clause

of the Eighth Amendment because lethal injections can be

carried out by using other chemicals that pose less risk of pain

and suffering?

Petition for Writ of Cert. at ii-iii, Baze v. Rees, No. 07-5439 (U.S. July 11, 2007), 2007 WL

2781088.

As is evident from this statement of the issues, not only is the Supreme Court poised

to clarify the standard by which the Eighth Amendment is to be interpreted in death cases,

but the high court also has before it the constitutionality of using the very chemicals

employed in this State as a means of carrying out the death sentence and challenged in the

instant action. Simply put, the Court would not issue this stay absent the Supreme Court’s

grant of certiorari in Baze. However, the fact that the Supreme Court has elected to grant

Case 6:07-cv-01798-ACC-KRS Document 8 Filed 11/14/2007 Page 5 of 9

1The Court notes that since the granting of certiorari in the Baze case, the United

States Supreme Court has stayed at least two other cases involving challenges to the lethal

injection process. See Berry v. Epps, No. 07-7348 (07A367), 2007 WL 3156229 (Oct. 30, 2007)

(granting stay of execution after Court of Appeals denied the motion for stay as dilatory);

Emmett v. Johnson, No. 07A304, 2007 WL 3018923 (Oct. 17, 2007) (granting stay of execution

pending Court of Appeals’ final disposition of appeal of summary judgment in favor of

defendants in §1983 action challenging the lethal injection process). In addition, several

lower courts across the nation have similarly granted stays. See Nooner v. Norris, No.

5:06CV00110 SWW, 2007 WL 3232083 (E.D. Ark. October 30, 2007) (granting stay of

execution in § 1983 action challenging the State’s protocol for lethal injections); In re:

Heliberto Chi, No. WR-61600-03 (Tex. Ct. Crim. App. Oct. 2, 2007) (granting stay of

execution to consider whether the current method of lethal injection in Texas violates the

Eighth Amendment). Plaintiff cites to a number of other unpublished cases, but has failed

to attach copies of the opinions. Given the short timeframe afforded this Court to resolve

this matter, Plaintiff’s failure to provide copies of the opinions precludes this Court from

considering such cases.

6

review in that case suggests that Plaintiff faces the prospect of a significant possibility of

success on the merits of his claims.1

Considering the other relevant factors, the State of Florida has an unquestionable

interest in proceeding with Plaintiff’s execution without undue interference. However, the

key word is “undue.” Postponing the execution process for a relatively short time until

Baze is decided does not constitute impermissible interference with Florida’s execution

process. Turning to the subject of Plaintiff’s diligence, certainly an argument can be made

that he delayed too long in bringing this suit. Ordinarily, that consideration alone might

warrant denial of a stay. However, the Court cannot consider this case in a vacuum, and

the fact that Baze is now before the Supreme Court is an extraordinary circumstance that

overmatches considerations of delay, at least insofar as a stay is concerned. This feature

sets this case apart from others in which the Court of Appeals for the Eleventh Circuit has

Case 6:07-cv-01798-ACC-KRS Document 8 Filed 11/14/2007 Page 6 of 9

2The United States Supreme Court recently granted a stay of execution in a case that

was rejected by the Court of Appeals as constituting an unjustifiable delay. See Berry v.

Epps, No. 07-7348 (07A367), 2007 WL 3156229 (Oct. 30, 2007). On October 26, 2007, four

days before Berry’s execution, the Fifth Circuit Court of Appeals rejected his reliance on

Baze and denied his request for a stay as dilatory. On the day of the scheduled execution,

the Supreme Court granted a stay of Berry’s execution.

3On June 12, 2006, the Supreme Court of the United States clarified in Hill that an

inmate’s constitutional challenge to the manner of execution must be brought pursuant to

§ 1983, rather than via the mechanism of habeas corpus. Hill, 126 S.Ct. at 2101-04. Since

Hill issued, the Eleventh Circuit has considered a number of appeals involving § 1983

challenges in death cases. Siebert v. Allen, No. 07-14956, 2007 WL 3244633 (11th Cir. Nov.

5, 2007); Arthur v. King, 500 F.3d 1335 (11th Cir. 2007), pet. for cert. filed, 76 USLW 3169 (Sept.

25, 2007) (No. 07-397); Arthur v. Allen, No. 07-13929, 2007 WL 2709942 (11th Cir. Sept. 17,

2007), pet. for cert. filed, 76 USLW 3169 (Sept. 22, 2007) (No. 07-395); Williams v. Allen, 496

F.3d 1210 (11th Cir.), cert. dismissed, 128 S.Ct. 370 (2007); Grayson v. Allen, 491 F.3d 1318

(continued...)

7

upheld dismissal of an execution challenge based on unjustifiable delay. See, e.g., Arthur

v. King, 500 F.3d 1335 (11th Cir. Sept. 21, 2007), pet. for cert. filed, 76 USLW 3169 (Sept. 25,

2007) (No. 07-397).2 Finally, the fact that the Supreme Court has granted review to consider

some of the very same issues Plaintiff raises here belies the notion that his claims are

impermissibly speculative.

Considering the totality of the circumstances, then, the Court concludes that

Plaintiff’s execution must be stayed for a relatively short time until the Supreme Court

renders its decision in Baze. The irreversible consequences of execution compel this result.

Again, the question here is not whether Plaintiff’s conviction and sentence should stand

(after all, this Court is among those that have upheld his convictions and death sentence),

or whether Florida can execute him; rather, insofar as a stay is concerned, it is whether the

State should be allowed to do so before the Supreme Court decides Baze.3

Case 6:07-cv-01798-ACC-KRS Document 8 Filed 11/14/2007 Page 7 of 9

3(...continued)

(11th Cir.), cert. denied, 128 S.Ct. 6 (2007); Jones v. Allen, 485 F.3d 635 (11th Cir.), cert. denied,

127 S.Ct. 2160 (2007); Diaz v. McDonough, 472 F.3d 849 (11th Cir.), cert. denied, 127 S.Ct. 851

(2006); Hutcherson v. Riley, 468 F.3d 750 (11th Cir.), cert. denied, 127 S.Ct. 467 (2006);

Rutherford v. McDonough, 466 F.3d 970, reh’g denied, 467 F.3d 1297 (11th Cir.), cert. denied, 127

S.Ct. 465 (2006); Hill v. McDonough, 464 F.3d 1256 (11th Cir.), cert. denied 127 S.Ct. 465 (2006).

Based on the quick review permitted since the filing of this case, it appears that in every

decision but Siebert, the Eleventh Circuit affirmed the denial of relief. However, all of the

decisions affirming the denial of relief predated the Supreme Court’s grant of certiorari in

Baze. In Siebert, the appellate court reversed the lower court’s denial of a stay on the basis

that the inmate had shown a substantial likelihood of success on his as-applied challenge

to Alabama’s lethal injection procedure. However, the Eleventh Circuit did not cite Baze

in Siebert. In any event, Siebert is factually distinguishable - indeed, unique - because the

inmate there had recently been diagnosed with hepatitis C and pancreatic cancer, and

therefore argued that the physical manifestations of those diseases would greatly

complicate the execution procedure as applied to him.

8

Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1. Plaintiff’s emergency motion to stay execution (Doc. No. 2) is GRANTED.

This Court stays the execution of Plaintiff pending a final decision by the United States

Supreme Court in the Baze case.

2. This case (6:07-cv-1798-Orl-22KRS) is also STAYED pending resolution of the

Baze case.

3. The Clerk of the Court is directed to administratively close this case

4. Plaintiff shall file a motion to reopen this case within thirty (30) days after a

final decision has been rendered in the Baze case. The failure to do so will result in the

dismissal of this case without further notice.

Case 6:07-cv-01798-ACC-KRS Document 8 Filed 11/14/2007 Page 8 of 9

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DONE AND ORDERED at Orlando, Florida, this 14th day of November, 2007.

Copies to:

sa 11/14

Counsel of Record

Case 6:07-cv-01798-ACC-KRS Document 8 Filed 11/14/2007 Page 9 of 9

Motion to dismiss - Mark Schwab

Motion to dismiss filed in federal court in Schwab

http://www.oranous.com/florida/MarkSchwab/motiontodismiss.pdf

The State`s opposition to federal stay - Mark Schwab

The State files opposition to motion for stay in federal court in Schwab

http://www.oranous.com/florida/MarkSchwab/oppositiontoemergency.pdf