Page:Glossip v. Gross.pdf/112

 16

GLOSSIP v. GROSS SOTOMAYOR, J., dissenting

acceptance of Dr. Evans’ claim that 500 milligrams of midazolam would “paralyz[e] the brain” cannot be credited. This is not a case “[w]here there are two permissible views of the evidence,” and the District Court chose one; rather, it is one where the trial judge credited “one of two or more witnesses” even though that witness failed to tell “a coherent and facially plausible story that is not contra­ dicted by extrinsic evidence.” Anderson v. Bessemer City, 470 U. S. 564, 574–575 (1985). In other words, this is a case in which the District Court clearly erred. See ibid. B Setting aside the District Court’s erroneous factual finding that 500 milligrams of midazolam will necessarily “paralyze the brain,” the question is whether the Court is nevertheless correct to hold that petitioners failed to demonstrate that the use of midazolam poses an “objec­ tively intolerable risk” of severe pain. See Baze, 553 U. S., at 50 (plurality opinion) (internal quotation marks omit­ ted). I would hold that they made this showing. That is because, in stark contrast to Dr. Evans, petitioners’ ex­ perts were able to point to objective evidence indicating that midazolam cannot serve as an effective anesthetic that “render[s] a person insensate to pain caused by the second and third [lethal injection] drugs.” Ante, at 23. As observed above, these experts cited multiple sources supporting the existence of midazolam’s ceiling effect. That evidence alone provides ample reason to doubt mid­ azolam’s efficacy. Again, to prevail on their claim, peti­ tioners need only establish an intolerable risk of pain, not a certainty. See Baze, 553 U. S., at 50. Here, the State is attempting to use midazolam to produce an effect the drug has never previously been demonstrated to produce, and despite studies indicating that at some point increasing the dose will not actually increase the drug’s effect. The State is thus proceeding in the face of a very real risk that