Page:Glossip v. Gross.pdf/114

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GLOSSIP v. GROSS SOTOMAYOR, J., dissenting

noted that “[t]he drug would never be used and has never been used as a sole anesthetic to give anesthesia during a surgery,” id., at 223, and asserted that “the drug was not approved by the FDA as a sole anesthetic because after the use of fairly large doses that were sufficient to reach the ceiling effect and produce induction of unconscious­ ness, the patients responded to the surgery,” id., at 219. Thus, Dr. Lubarsky may not have been able to identify whether this effect would be reached at 40, 50, or 60 milli­ grams or some higher threshold, but he could specify that at no level would midazolam reliably keep an inmate unconscious once the second and third drugs were delivered.5 These assertions were amply supported by the evidence of the manner in which midazolam is and can be used. All three experts agreed that midazolam is utilized as the sole sedative only in minor procedures. Dr. Evans, for exam­ ple, acknowledged that while midazolam may be used as the sole drug in some procedures that are not “terribly invasive,” even then “you would [generally] see it used in combination with a narcotic.” Id., at 307. And though, as the Court observes, Dr. Sasich believed midazolam could be “used for medical procedures like colonoscopies and gastroscopies,” ante, at 21, he insisted that these proce­ dures were not necessarily painful, and that it would be a —————— 5 The Court claims that the District Court could have properly disre­ garded Dr. Lubarsky’s testimony because he asserted that a protocol with sodium thiopental would “ ‘produce egregious harm and suffer­ ing.’ ” Ante, at 24, n. 6 (quoting App. 227). But Dr. Lubarsky did not testify that, like midazolam, sodium thiopental would not render an inmate fully insensate even if properly administered; rather, he simply observed that he had previously contended that protocols using that drug were ineffective. See App. 227. He was presumably referring to an article he coauthored that found many condemned inmates were not being successfully delivered the dose of sodium thiopental necessary to fully anesthetize them. See Baze, 553 U. S., at 67 (ALITO, J., concur­ ring) (discussing this study).