Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/44

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The majority, while characterizing the matter as “critical,” says that there is “nothing in the record to suggest that Mr. Bucklew will be capable of experiencing pain for significantly more than 20 to 30 seconds after being injected with pentobarbital.” Ante, at 26. But what about Dr. Zivot’s testimony that the time between injection and death “could range over a few minutes to many minutes?” App. 222. What about Dr. Zivot’s characterization of the pain involved as “prolonged?” Id., at 234. What about Dr. Zivot’s “stron[g] disagree[ment] with [the State’s expert’s] repeated claim that the pentobarbital injection would result in ‘rapid unconsciousness?’” Id., at 233.

The majority construes Dr. Zivot’s testimony to show only that Bucklew might remain alive for several minutes after the injection, not that he will be capable of feeling pain for several minutes after the injection. Ante, at 27. But immediately following his prediction that the time between injection and death could range up to many minutes, Dr. Zivot stated that “beginning with the injection of the Pentobarbital solution and ending with Mr. Bucklew’s death several minutes to as long as many minutes later, Mr. Bucklew would be highly likely to experience feelings of ‘air hunger’ and the excruciating pain of prolonged suffocation.” App. 222 (emphasis added). Dr. Zivot thus testified both that lethal injection would take up to several minutes to kill Bucklew and that Bucklew would experience excruciating pain during this period. And it is not the case, as the majority believes, that Dr. Zivot “carefully avoided claiming that Mr. Bucklew would be capable of feeling pain until he died,” ante, at 28, particularly given that the record must be construed in the light most favorable to Bucklew.

The majority also justifies its refusal to credit Dr. Zivot’s testimony on the ground that Dr. Zivot gave a response during his deposition suggesting that he misinterpreted a