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In re Lombardi

United States Court of Appeals, Eighth Circuit

January 24, 2014

In re George A. LOMBARDI, Petitioner.

Submitted: Jan. 17, 2014.

Page 889

Michael J. Spillane, Asst. Atty. Gen., Jefferson City, MO (Chris Koster, Atty. Gen., Stephen D. Hawke, Asst. Atty. Gen., on the brief), for petitioner.

Joseph W. Luby, Death Penalty Litigation Clinic, Kansas City, MO, for respondent.

Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, SMITH, COLLOTON, GRUENDER, SHEPHERD, and KELLY, Circuit Judges, En Banc.[1]

COLLOTON, Circuit Judge, with whom RILEY, Chief Judge, and WOLLMAN, LOKEN, SMITH, GRUENDER, and SHEPHERD, Circuit Judges, join.

George Lombardi, Director of the Missouri Department of Corrections, petitions for a writ of mandamus or prohibition directed to the district court in an underlying civil action concerning Missouri's method for carrying out the death penalty. See Zink v. Lombardi, No. 2:12-cv-04209 (W.D. Mo. filed Aug. 1, 2012). Lombardi seeks to prohibit the district court from enforcing orders that Lombardi must disclose in civil discovery, for use by opposing counsel, the identities of (1) the physician who prescribes the chemical used in Missouri executions, (2) the pharmacist who compounds the chemical, and (3) the laboratory that tests the chemical for potency, purity, and sterility. Citing reports that " many manufacturers and suppliers have barred the use of drugs used for executions or refused, under pressure from death-penalty opponents, to sell or manufacture drugs for use in execution," the Director avers that disclosure of these identities " would prevent the Department from obtaining lethal chemicals needed to perform its state obligations." R. Doc. 189-1, at 2. Consistent with the Director's

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affidavit, the plaintiffs themselves allege that maintaining confidentiality of the identities " prevents the suppliers' associations, customers, and prescribing or referring physicians from censuring or boycotting them," and unreasonably restricts the associations of health-care professionals " from de-certifying or otherwise censuring them or boycotting them." R. Doc. 183, at 94-95.

A three judge panel of this court granted a writ with respect to discovery of the identity of the physician, but denied a writ as to discovery of the identities of the pharmacy and the laboratory. On rehearing en banc, we conclude that a writ should issue to vacate the orders requiring discovery of all three identities.

I.

A.

In Missouri, first-degree murder is punishable by death or life imprisonment. Mo.Rev.Stat. § 565.020.2. When the trial court imposes a penalty of death, Missouri law provides that " [t]he manner of inflicting the punishment of death shall be by the administration of lethal gas or by means of the administration of lethal injection." Mo.Rev.Stat. § 546.720.1. The statute further authorizes the Director to provide " the necessary appliances for carrying into execution the death penalty by means of the administration of lethal gas or by means of the administration of lethal injection." Id. State law thus places the matter of selecting a lethal-injection protocol in the discretion of the Director. Taylor v. Crawford, 487 F.3d 1072, 1081 (8th Cir.2007). The governing statute also provides that the Director will select an " execution team," consisting of " those persons who administer lethal gas or lethal chemicals" and " those persons, such as medical personnel, who provide direct support for the administration of lethal gas or lethal chemicals." Mo.Rev.Stat. § 546.720.2.

As of 2010, Missouri's lethal-injection protocol involved the administration of three drugs: " sodium thiopental to anesthetize the prisoner and render him unconscious, pancuronium bromide to paralyze him and stop his breathing, and potassium chloride to stop the prisoner's heart." Ringo v. Lombardi, 677 F.3d 793, 795 (8th Cir.2012). But Missouri's supply of sodium thiopental expired on March 1, 2011, and the State was unable to acquire more of the drug. The only domestic manufacturer of sodium thiopental had ceased to produce it, and the Food and Drug Administration had not approved the drug for importation. Id. at 797. In late 2011, moreover, the European Union announced strict regulations on the export of sodium thiopental to countries that authorize the death penalty. Press Release, European Commission, Commission Extends Control over Goods Which Could Be Used for Capital Punishment or Torture (Dec. 20, 2011), available at http:// europa. eu/ rapid/ press- release_ IP- 11- 1578_ den. pdf (last visited Jan. 24, 2014).

In light of these developments, Director Lombardi issued a new execution protocol in May 2012 that called for the injection of two grams of propofol. R. Doc. 133-1. In October 2013, however, " in light of the issues that have been raised surrounding the use of propofol in executions," Governor Nixon directed the Department of Corrections to modify the execution protocol to employ a different form of lethal injection. R. Doc. 183-1. The " issues" raised in the public domain included the potential that if propofol were used in lethal injections, then the European Union would forbid or restrict the exportation of propofol to the United States, and the drug would be unavailable for continued use in this country as a common anesthetic

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in surgical procedures. See, e.g., R. Doc. 126, at 4; R. Doc. 126-1, at 3-4; R. Doc. 126-3, at 2-3; Mo. Soc'y of Anesthesiologists, Statement on the Use of Propofol in Lethal Injections (Sept.2013), available at http:// www. msahq. com/ wp- content/ uploads/ 2013/ 09/ MSA- Statement- on- Use- of- Propofol- in- Lethal- Injections. pdf (last visited Jan. 24, 2014).

In response, the Director changed the lethal-injection protocol on October 18, 2013. The new protocol eliminates the use of propofol and provides for the injection of five to ten grams of pentobarbital. R. Doc. 144, at 1; R. Doc. 144-1, at 1. The Department also announced that it had added a compounding pharmacy to its execution team, and that the pharmacy would be responsible for providing pentobarbital for executions carried out under the new protocol. R. Doc. 183-3. Missouri applied the October 2013 protocol in the executions of Joseph Paul Franklin on November 20, 2013, and Allen Nicklasson on December 11, 2013.

B.

The litigation underlying the petition for writ of mandamus began in June 2012 and was removed to federal court in August 2012. A group of prisoners sentenced to death in Missouri sued the Director, seeking a declaration that the lethal-injection protocol using propofol was unconstitutional. The complaint alleged that the protocol violated the Eighth and Fourteenth Amendments of the Constitution of the United States and the comparable prohibition on cruel and unusual punishment in the Missouri Constitution, the Ex Post Facto Clauses of the federal and state constitutions, the Supremacy Clause of the federal Constitution, and the separation of powers guaranty of the Missouri Constitution. R. Doc. 1-1; R. Doc. 1-2. On the Director's motion to dismiss the complaint, the district court allowed the claims based on the Eighth Amendment and the Ex Post Facto Clauses to proceed, but dismissed the others for failure to state a claim. R. Doc. 31.

After the Director modified the lethal-injection protocol in October 2013 to eliminate propofol and to use pentobarbital, the Director moved to dismiss the complaint for lack of jurisdiction. The district court denied the motion, reasoning that despite the change in lethal-injection protocol, " there is clearly an overarching controversy concerning the Department's method of execution," and that even if the complaint were dismissed, the plaintiffs " could and would immediately file a new lawsuit alleging violations involving the latest version of the protocol." R. Doc. 163, at 3. The court concluded that even if the plaintiffs were required to file a new lawsuit, " [t]he same controversy would remain: whether the Department's current execution protocol is in violation of the Eighth Amendment." Id.

On November 26, 2013, the district court granted the plaintiffs leave to file an amended complaint alleging violations of several federal and state constitutional, statutory, and regulatory provisions. Although this court recently had vacated the district court's order staying the execution of Joseph Paul Franklin based on challenges to the method of execution, Zink v. Lombardi, No. 13-3505, Order (8th Cir. Nov. 19, 2013), vacating R. Doc. 163, the district court ruled that the proposed amendment was not futile, because this court's decision in Franklin's case did not mean that the plaintiffs could never develop sufficient evidence to support their claims with adequate discovery procedures. R. Doc. 181. On December 3, 2013, the plaintiffs filed an amended complaint that challenged the current protocol and the use of pentobarbital. R. Doc. 183.

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The discovery orders at issue here were entered on December 12, 2013. Having denied the Director's motion to dismiss the original complaint, rejected the Director's contention that amendment of the complaint would be futile, and disagreed with the Director's invocation of an evidentiary privilege, the district court ordered the Director to disclose to counsel for the plaintiffs, no later than December 16, the identities of the physician who provides a prescription for the compounded pentobarbital, the pharmacist who compounds the pentobarbital used in executions, and the laboratory that tests the compounded drug. R. Doc. 203; R. Doc. 204. The district court also denied the Director's motion for a protective order regarding members of the execution team. R. Doc. 205.

The district court permitted only two attorneys for the plaintiffs to learn the identities and required those attorneys to " refrain from directly identifying to any other person the pharmacist, physician, or laboratory as individuals who are assisting the state in the execution of prisoners." R. Doc. 203. Counsel for the plaintiffs, however, expressed concern that it could be very difficult to investigate the physician, pharmacist, and laboratory without disclosing their roles in the execution process, and suggested there were " many ways in which investigating the pharmacy might place the pharmacy's identity, status, and role at issue before whoever we would be talking to." R. Doc. 224, at 14-16. The district court acknowledged that " it may be that there's just no way given the circumstances to keep it confidential because of the central nature of these people to the current dispute," and asked only that counsel keep the identities confidential, " other than as needed to do the investigation." Id. at 16.

The Director then petitioned this court for a writ of mandamus or prohibition that would prohibit the district court from enforcing the three disputed orders. Late in the afternoon on December 16, the district court denied the Director's motion for a stay of the discovery orders pending a decision from this court. The Director promptly moved for a stay in this court. On December 17, the Director delivered to the district court (but not to opposing counsel) a document identifying the prescribing physician, compounding pharmacy, and testing laboratory. Later that day, this court granted a temporary stay of the district court's orders.

On December 27, a three judge panel of this court (Bye, Gruender, and Kelly, JJ.) granted a writ of mandamus and prohibited the district court from ordering the Director to disclose the identity of the prescribing physician. The panel denied, however, the petition for writ of mandamus as to discovery of the identities of the compounding pharmacy and the testing laboratory. The panel dissolved the temporary stay entered on December 17 and issued the mandate immediately. The district court then ordered the Director to disclose to opposing counsel the identities of the compounding pharmacist and the testing laboratory by 5:00 p.m. on December 27. The Director promptly petitioned this court for rehearing en banc. He also moved this court to recall the mandate and to stay temporarily the district court's discovery orders pending disposition of the petition for rehearing. The Director informed the district court of these filings and again provided the identities of the compounding pharmacy and testing laboratory to the district court, but not to opposing counsel.

The three judge panel denied the motions to recall the mandate and for temporary stay by ...


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