Page:Glossip v. Gross.pdf/113

 Cite as: 576 U. S. ____ (2015)

17

SOTOMAYOR, J., dissenting

the drug will not work in the manner it claims. Moreover, and perhaps more importantly, the record provides good reason to think this risk is substantial. The Court insists that petitioners failed to provide “probative evidence” as to whether “midazolam’s ceiling effect occurs below the level of a 500-milligram dose and at a point at which the drug does not have the effect of rendering a person insensate to pain.” Ante, at 23. It emphasizes that Dr. Lubarsky was unable to say “at what dose the ceiling effect occurs,” and could only estimate that it was “ ‘[p]robably after about. . . 40 to 50 milligrams.’ ” Ante, at 23 (quoting App. 225). But the precise dose at which midazolam reaches its ceiling effect is irrelevant if there is no dose at which the drug can, in the Court’s words, render a person “insensate to pain.” Ante, at 23. On this critical point, Dr. Lubarsky was quite clear.4 He explained that the drug “does not work to produce” a “lack of consciousness as noxious stim­ uli are applied,” and is “not sufficient to produce a surgical plane of anesthesia in human beings.” App. 204. He also —————— 4 Dr.

Sasich, as the Court emphasizes, was perhaps more hesitant to reach definitive conclusions, see ante, at 19–21, and n. 5, 23–24, but the statements highlighted by the Court largely reflect his (truthful) observations that no testing has been done at doses of 500 milligrams, and his inability to pinpoint the precise dose at which midazolam's ceiling effect might be reached. Dr. Sasich did not, as the Court sug­ gests, claim that midazolam’s ceiling effect would be reached only after a person became fully insensate to pain. Ante, at 24. What Dr. Sasich actually said was: “As the dose increases, the benzodiazepines are expected to produce sedation, amnesia, and finally lack of response to stimuli such as pain (unconsciousness).” App. 243. In context, it is clear that Dr. Sasich was simply explaining that a drug like midazolam can be used to induce unconsciousness—an issue that was and remains undisputed—not that it could render an inmate sufficiently unconscious to resist all noxious stimuli. Indeed, it was midazolam’s possible inability to serve the latter function that led Dr. Sasich to conclude that “it is not an appropriate drug to use when administering a paralytic followed by potassium chloride.” Id., at 248.