VIRGINIA

IN THE CIRCUIT COURT FOR THE CITY OF RICHMOND

Meghan Shapiro, Esq., and Christopher Leibig, Esq., )

)

Plaintiffs, )

)

v. ) Case No. ________________

)

Virginia Department of Corrections, )

Director of the Department of Corrections Harold )

W. Clarke, Pharmacy Supervisor at the Department of )

Corrections Pharmacy William Nicholson, and )

Unnamed ExecutionTeam Leader(s), )

all in their Official and Individual Capacities, )

)

Defendants.1 )

INFORMATION, COMPLAINT, AND APPLICATION FOR A WRIT QUO WARRANTO

Cause of Action, Standing, Jurisdiction, Venue, and Remedy

1. Plaintiffs file this application in the name of the Commonwealth for a Writ Quo Warranto

pursuant to Virginia Code Section 8.01-635 et seq. Section 8.01-636(2a) permits this

application for a writ “[a]gainst a person engaged in the practice of any profession without

being duly authorized or licensed to do so[.]”

2. Defendants the Virginia Department of Corrections (“DOC”), the Director of the Department of

Corrections Harold W. Clarke (“Director”), the Pharmacy Supervisor at the Department of

Corrections Pharmacy William Nicholson (“Pharmacist”), and the Unnamed Execution Team

Leader(s) (“Team Leaders”) are engaged in certain combinations of practices of the following

regulated professions without being duly authorized or licensed to do so: medicine; pharmacy;

and anesthesiology. As set out below, Defendants engage in these unauthorized, unlicensed

1 Addresses of Defendants, for purposes of service of process, are listed in the coverletter to this filing, but not in this

document itself, in order to protect their privacy.

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practices when they request, dispense, distribute, give, and/or obtain, and when they

intravenously administer as a general anesthetic and for other purposes controlled prescription

substances to condemned inmates in the Department of Corrections.

3. Plaintiffs have standing to file this application pursuant to Virginia Code Section 8.01-637(A),

which states: “any interested person[] may apply to such court by petition verified by oath for a

writ of quo warranto. In case of an application under Section 8.01-636 2a the term 'any

interested person' shall include any attorney licensed to practice law in this Commonwealth and

qualified to practice before the Supreme Court of Virginia, or the circuit court in which the

petition in filed.” Plaintiffs are members in good standing of the Virginia Bar and qualified to

practice before the Supreme Court of Virginia.

4. Jurisdiction is proper under Virginia Code Section 8.01-635 et seq., under Virginia Code

Section 8.01-620 because Plaintiffs are seeking the equitable remedy of an injunction, and

under Virginia Code Section 8.01-328.1 because all relevant acts by all Defendants have

occurred and continue to occur within the Commonwealth of Virginia.

5. The Director resides in the City of Richmond. The Director's official office, the location of the

DOC, and some of the acts complained of are located, have been done, are being done, and are

apprehended to be done within the 13th Judicial District. Venue is accordingly proper in this

Court pursuant to Virginia Code Sections 8.01-261(2), 8.01-261(14)(a), 8.01-261(15)(c), and

8.01-263.

6. Plaintiffs request the issuance of a writ commanding the Sheriff to summon the Defendants to

appear before this Court at a date set forth in the writ, pursuant to Virginia Code Section 8.01-

637(B) (“If, in the opinion of the court, the matters stated in the petition are sufficient in law to

authorize the issuance of such writ, a writ shall issue thereon, commanding the sheriff to

summon the defendant to appear at a date set forth in the writ.”).

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7. Plaintiffs request, pursuant to Virginia Code Section 8.01-643, the remedy of a “judgment as is

appropriate and authorized by law” that the Defendants are “guilty” of the prohibited behavior

herein alleged, as well as “costs incurred in the prosecution of the information.” Plaintiffs also

request the equitable remedy of an injunction against Defendants from further engaging in these

practices without due authorization or license.

8. If permissible in light of Virginia Code Section 8.01-643, Plaintiffs request a trial by jury

pursuant to Virginia Code Section 8.01-336(D).

9. True names of the Team Leaders are not included pursuant to Virginia Code Section 53.1-233,

which states: “The identities of persons designated by the Director to conduct an execution, and

any information reasonably calculated to lead to the identities of such persons, including, but

not limited to, their names, residential or office addresses, residential or office telephone

numbers, and social security numbers, shall be confidential, . . . shall not be subject to discovery

or introduction as evidence in any civil proceeding unless good cause is shown.”

Defendants Practice Medicine, Anesthesiology, and Pharmacy:

9. The Commonwealth of Virginia has decided that the professions of medicine, anesthesiology,

and pharmacy warrant strong regulation, as does the handling and use of controlled drugs, in the

interest of public safety. Defendants have engaged in, and continue to engage in, all of these

practices outside the bounds of the Commonwealth's laws and regulations – specifically,

without due licensure or specific authorization – when they prepare for and carry out executions

by lethal injection. A demonstrative list of specific laws and regulations Defendants are

violating can be found at Paragraph 21.

10. The following prescription controlled substances have been and are utilized by the Defendants,

without due licensure or authorization, to carry out executions by lethal injection: the short-

acting barbiturate general anesthetic Thiopental Sodium (“Thiopental,” a Schedule III

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Controlled Substance), the short-acting barbiturate Pentobarbital Sodium (“Pentobarbital,” a

Schedule II Controlled Substance), the neuromuscular blocking agent Pancuronium Bromide

(“Pancuronium,” which is, at least, a Schedule VI Controlled Substance); and the salt-form

mineral supplement Potassium Chloride (which is also, at least, a Schedule VI Controlled

Substance). For a photograph of the DOC's current stock of these drugs, see Exhibit A

(photographs of DOC's supply of Pentobarbital, Pancuronium, and Potassium Chloride) See

also Exhibit B (Perpetual Inventory Logs for Pentobarbital, Pancuronium, Potassium Chloride,

and Thiopental). As of February 29, 2012, the DOC had no supply of Thiopental.

11. Thiopental and Pentobarbital have been and are used by the Defendants as a general anesthetic

prior to administration of the Pancuronium, which paralyzes all muscle movement and causes

agonizing asphyxiation, and Potassium Chloride, which induces cardiac arrest with excruciating

pain that has been likened to the feeling of having one’s veins set on fire. It is uncontroverted

that it would be unconscionable to inject either of these drugs into a person who was not

adequately anesthetized. For this reason, the anesthetic agent (the Pentobarbital and

Thiopental) serves and has served the exact same function in executions as it does during

surgery: to render an individual unconscious prior to an otherwise extremely painful and

agonizing procedure. The Defendants therefore engage in anesthesiology when they inject

Pentobarbital or Thiopental, something they are neither licensed nor authorized to do. As

detailed below, Defendants' practice of anesthesiology is not only unlicensed and unauthorized,

it is also incorrect and unsafe.

12. Defendants have engaged and continue to engage in the following unlicensed and unauthorized

practices, in violation of state laws strictly requiring licensure or other specific authorization for

the purpose of protecting public safety:

a) the above controlled substances are requested and obtained from the Pharmacist or

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his agent by or at the direction of the Director and/or the Team Leaders without due

licensure or authorization;

b) the substances are dispensed, distributed, or given out by or at the direction of the

Pharmacist to the Director or his agents and/or the Team Leaders or their agents

without lawful prescriptions or other authorization;

c) the substances are directly or indirectly dispensed, distributed, or given by the

Director or his agents to the Team Leaders or their agents without due licensure or

authorization;

d) the substances are measured and put into syringes at the direction of the Director or

his agents without due licensure or authorization;

e) the substances are administered by or at the direction of the Team Leaders, and at the

direction of the Director or his agents, to certain Department of Corrections inmates

without due licensure or authorization;

f) intravenous catheters are inserted at the direction of the Director or his agents into

certain Department of Corrections inmates peripherally and/or centrally without due

licensure or authorization;

g) the substances are administered to a person by or at the direction of the Team

Leaders and at the direction of the Director or his agents to certain Department of

Corrections inmates without due licensure or authorization;

h) the substances are administered through peripheral or central IV lines by or at the

direction of the Team Leaders and at the direction of the Director or his agents to

certain Department of Corrections inmates without due licensure or authorization;

i) Pentobarbital and Thiopental are administered by the Team Leaders or their agents,

at the direction of the Director, as a general anesthetic without due licensure or

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authorization, and without the involvement of any other duly licensed or authorized

person;

j) to the extent the selection of the above substances for use in lethal injections can be

said to be a “prescription” for said substances, the Director or his agents and/or the

Team Leaders or their agents have ordered and continue to order such prescriptions

without due licensure or authorization.

13. In addition to the Defendants specifically listed in the preceding sub-paragraphs, all of the

above activities are conducted by the DOC and are under the control of the Director. Some

direction by the Director was and is made in the form of, but not limited to, a written, internal

DOC protocol that is not subject to regulation, review, or oversight by any external body or

authority, and is consistently withheld from FOIA disclosure. These specific methods and

procedures, including the selection of drugs, dosages, method of administration, and personnel

involved in the administration, are subject to change at any time without notice. The specific

methods and procedures for lethal injection complained of here are formulated, maintained and

administered at the complete discretion of the Director, who may at times delegate that

responsibility to an agent who similarly lacks proper licensure or due authorization to engage in

the professions of medicine, anesthesiology, or pharmacy.

Defendants' Practices of Medicine, Anesthesiology, and Pharmacy are Unauthorized:

14. Neither the Director, the Team Leaders, nor their relevant agents possess licenses or any other

sufficient authority to practice medicine, pharmacy, or anesthesiology.

15. The activities of the Pharmacist and his agents complained-of above fall outside those activities

permitted by their licenses or by state pharmacy regulations and laws, and are conducted at the

direction of the Director.

16. None of the above drugs are being used by Defendants for their intended purposes, nor in

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response to any appropriate medical indication. In fact, manufacturers of Thiopental and

Pentobarbital have publicly so stated, directly corresponded with the DOC to that effect,

ultimately ceased to manufacture the drug for that reason, and/or stopped future distribution of

the drug to the DOC for that reason. Those manufacturers are Hospira Inc., which used to

manufacture Sodium Thiopental, and Lundbeck Pharmaceuticals, which manufactured

Pentobarbital and restricted its distribution to prevent DOCs from purchasing the drug.. For a

copy of the relevant press release from Lundbeck Pharmaceuticals, see Exhibit C (July 1, 2011

Press Release from Lundbeck Pharmaceuticals)

17. Neither the details of the administration of lethal injection, including the qualifications of

personnel involved, nor the substances to be used in the lethal injection, are required by state

law. State law designates merely that “[t]he Director, or the assistants appointed by him,

shall . . . cause the prisoner under sentence death to be . . . injected with a lethal substance, until

he is dead. . . . Execution by lethal injection shall be permitted in accordance with procedures

developed by the Department[,]” Virginia Code Section 53.1-234, and that “[e]ach execution

shall be conducted by the Director or one or more assistants designated by him.” Va. Code Sec.

53.1-233.

18. Defendants do not fall under the DOC-specific legal exemption to Title 54.1, Subtitle III,

Chapter 29 (Medicine and Other Healing Arts). Va. Code Sec. 54.1-2901(A)(25) (exemption

for purposes “working as a health assistant under the direction of a licensed medical or

osteopathic doctor within the Department of Corrections”).

19. Neither do Defendants' actions fall under the legal exemption to Title 54.1, Subtitle III, Chapter

29 (Medicine and Other Healing Arts) of Virginia Code Section 54.1-2901(A)(19), which

exempts “Any person from performing services in the lawful conduct of his particular

profession or business under state law[,]” since the complained-of actions are not otherwise

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sanctioned by Virginia law.

20. Neither is the DOC exempt from the Virginia Drug Control Act, which provides only one very

specific and very limited exception allowing the DOC's pharmacy to include more than one

prescription in a single written prescription order. Va. Code Sec. 54.1-3408.01(A).

21. Defendants' unlicensed and unauthorized actions violate state regulations and statutes including

but not limited to the following: Virginia Code Section 54.1-2409.1 (“Any person who, without

holding a current valid license . . . (i) performs an invasive procedure for which a license or

multistate licensure privilege is required; (ii) administers, prescribes, sells, distributes, or

dispenses a controlled drug . . . shall be guilty of a Class 6 felony.”); Virginia Code Section

54.1-3310 (unlawful to “practice pharmacy, or to engage in, carry on, or be employed in the

dispensing . . . of drugs within this Commonwealth unless licensed by the Board as a

pharmacist”); Virginia Code Section 54.1-3302 (“A practitioner of the healing arts shall not sell

or dispense controlled substances except as provided in sections 54.1-2914 and 54.1-3304.1.”);

Virginia Code Section 54.1-3303(A) (“A prescription for a controlled substance may be issued

only by a practitioner of medicine . . . . The prescription shall be issued for a medicinal or

therapeutic purpose and may be issued only to persons . . . with whom the practitioner has a

bona fide practitioner-patient relationship.”2); Virginia Code Section 54.1-3303(B) (“The person

knowingly filing an invalid prescription shall be subject to the criminal penalties provided in

2 “For purposes of this section, a bona fide practitioner-patient-pharmacist relationship is one in which a practitioner

prescribes, and a pharmacist dispenses, controlled substances in good faith to his patient for a medicinal or therapeutic

purpose within the course of his professional practice. In addition, a bona fide practitioner-patient relationship means

that the practitioner shall (i) ensure that a medical or drug history is obtained; (ii) provide information to the patient

about the benefits and risks of the drug being prescribed; (iii) perform or have performed an appropriate examination of

the patient, either physically or by the use of instrumentation and diagnostic equipment through which images and

medical records may be transmitted electronically; except for medical emergencies, the examination of the patient shall

have been performed by the practitioner himself, within the group in which he practices, or by a consulting practitioner

prior to issuing a prescription; and (iv) initiate additional interventions and follow-up care, if necessary, especially if a

prescribed drug may have serious side effects. Any practitioner who prescribes any controlled substance with the

knowledge that the controlled substance will be used otherwise than medicinally or for therapeutic purposes shall be

subject to the criminal penalties provided in Section 18.2-248 for violations of the provisions of law relating to the

distribution or possession of controlled substances.” Virginia Code Section 54.1-3303(A).

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Section 18.2-248 for violations of the provisions of law relating to the sale, distribution or

possession of controlled substances. No prescription shall be filled unless there is a bona fide

practitioner-patient-pharmacist relationship.”); Virginia Code Section 54.1-3408(A) (“A

practitioner . . . shall only prescribe, dispense, or administer controlled substances in good faith

for medicinal or therapeutic purposes within the course of his professional practice.”); Virginia

Code Section 54.1-3408.01(A) (stating the requirements of a written prescription, including that

it “contain the first and last name of the patient for whom the drug is prescribed”); Virginia

Code Section 54.1-3408.01(C) (stating the requirements of an oral prescription); Virginia Code

Sections 54.1-3410(A) & (A)(1) (“A pharmacist, acting in good faith, may sell and dispense

drugs and devices to any person pursuant to a prescription of a prescriber as follows: A drug

listed in Schedule II shall be dispensed only upon receipt of a written prescription that is

properly executed, dated and signed by the person prescribing on the day when issued and

bearing the full name and address of the patient for whom . . . the drug is dispensed, and the full

name, address, and registry number under the federal laws of the person prescribing, if he is

required by those laws to be so registered.”); Virginia Code Sections 54.1-3410(B), (B)(1), &

(B)(2) (“A drug controlled by Schedules III through VI . . . shall be dispensed upon receipt of a

written or oral prescription as follows: If the prescription is written, it shall be properly

executed, dated and signed by the person prescribing on the day when issued and bear the full

name and address of the patient for whom . . . the drug is dispensed, and the full name and

address of the person prescribing. . . . If the prescription is oral, the prescriber shall furnish the

pharmacist with the same information as is required by law in the case of a written prescription

for drugs[.]”; Virginia Code Section 18.2-248(A) (“Except as authorized in the Drug Control

Act (Section 54.1-3400 et seq.), it shall be unlawful for any person to . . . give , distribute, or

possess with intent to . . . give or distribute a controlled substance[.]”); Virginia Code Section

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18.2-250(A) (“It is unlawful for any person knowingly or intentionally to possess a controlled

substance unless the substance was obtained directly from, or pursuant to, a valid prescription

or order of a practitioner while acting in the course of his professional practice, or except as

otherwise authorized by the Drug Control Act (Section 54.1-3400 et seq.); Virginia Code

Section 18.2-260 (“It shall be unlawful for any person to prescribe, administer or dispense any

drug except as authorized in the Drug Control Act (Section 54.1-3400 et seq.) or in this

article.”); 18 Virginia Administrative Code 85-20-120, 18-50-40 et seq., and 90-30-80 et seq. (in

order to insert a peripherally-inserted central catheter, a person should have the training,

qualifications, and expertise of a medical doctor, a physician assistant, a certified registered

nurse anesthetist, or a registered nurse with specific other qualifications); 18 Virginia

Administrative Code 85-20-330(B)(1) (in order to administer general anesthesia, a person

should have the training of an anesthesiologist or a certified registered nurse anesthetist).

22. The above violations are noted not to assert claims of separate causes of action, but to

demonstrate that Defendants are acting without due licensure or authorization. Due to the

complexity and highly regulated nature of the professions of medicine, anesthesiology and

pharmacy, Defendants are likely in violation of additional regulations and laws not yet

identified by Plaintiffs.

Defendants Have Engaged In the Following Examples of Specific Past Unauthorized Acts:

23. Defendants have engaged in the practice of the professions of medicine, pharmacy, and

anesthesiology without due licensure or authorization, including but not limited to the following

past examples:

a) As detailed in Exhibit D (Controlled Chemical Disposition Record of November 9,

2011), on November 9, 2011, at the DOC Pharmacy in Richmond, the Pharmacist

dispensed (or directed the dispensation of) three vials (7.5 grams) of prescription

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Pentobarbital, a Schedule II Controlled Substance, 15 vials (150 milligrams) of

prescription Pancuronium Bromide, a Controlled Substance that is at least Schedule

VI, and 18 vials (720 meq) of prescription Potassium Chloride, a Controlled

Substance that is at least Schedule VI. These drugs were delivered to Greensville

Correctional Center the same day. They were returned the following day to the DOC

Pharmacy. No lawful prescription existed for these drugs. At the direction of the

Director or his agents, these drugs were distributed by the Pharmacist or his agents

to the Director or his agents and the Team Leaders or their agents. The Team

Leaders and their agents, at the direction of the Director or his agents, possessed

these drugs.

b) As detailed in Exhibit E (Controlled Chemical Disposition Record of August 17-

18, 2011), on August 18, 2011, the following prescription Controlled Substances

were administered to inmate Jerry Terrell Jackson, without lawful prescription: 2.5

grams of Pentobarbital; 50 milligrams of Pancuronium; and 240 meq of Potassium

Chloride. These drugs were administered via peripheral IV lines by or at the

direction of the Team Leaders or their agents, and at the direction of the Director or

his agents. The Pentobarbital was administered for the purpose of inducing general

anesthesia prior to administering the highly painful and agonizing second and third

drugs to Mr. Jackson. The Pancuronium Bromide was administered to Mr. Jackson

for the purpose of generally paralyzing his body prior to the injection of the

Potassium Chloride, which stopped his heart.

c) As further detailed in Exhibit E, on August 17, 2011, at the DOC Pharmacy in

Richmond, the Pharmacist dispensed (or directed the dispensation of) three vials (7.5

grams) of prescription Pentobarbital, a Schedule II Controlled Substance, 15 vials

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(150 milligrams) of prescription Pancuronium Bromide, a Controlled Substance that

is at least Schedule VI, and 18 vials (720 meq) of prescription Potassium Chloride, a

Controlled Substance that is at least Schedule VI. These drugs were delivered to

Greensville Correctional Center, “L Unit,” the same day. No lawful prescription

existed for these drugs. At the direction of the Director or his agents, these drugs

were distributed by the pharmacist to the Director or his agents and the Team

Leaders or their agents. The Team Leaders and their agents, at the direction of the

Director or his agents, possessed these drugs.

d) As detailed in Exhibit F (Controlled Chemical Disposition Record of September 22-

23, 2010), on September 23, 2010, the following drugs were administered to inmate

Teresa Lewis, without lawful prescription: 2 grams of Thiopental Sodium; 50

milligrams of Pancuronium Bromide; and 240 meq of Potassium Chloride. These

drugs were administered via peripheral IV lines by or at the direction of the Team

Leaders or their agents, and at the direction of the former DOC Director or his

agents. The Thiopental Sodium was administered for the inducing general

anesthesia administering the highly painful and agonizing second and third drugs to

Ms. Lewis. The Pancuronium Bromide was administered to Ms. Lewis for the

purpose of generally paralyzing her body prior to the injection of the Potassium

Chloride, which stopped her heart.

e) As further detailed in Exhibit F, on September 22, 2010, at the DOC Pharmacy in

Richmond, the Pharmacist dispensed (or directed the dispensation of) twelve vials (6

grams) of the prescription Controlled Substance Thiopental Sodium, 15 vials (150

milligrams) of the prescription Controlled Substance Pancuronium Bromide, and 18

vials (720 meq) of the prescription Controlled Substance Potassium Chloride. These

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drugs were delivered to Greensville Correctional Center, “L Unit,” the same day. No

lawful prescription existed for these drugs. At the direction of the former DOC

Director or his agents, these drugs were distributed by the Pharmacist to the Team

Leaders or their agents. The Team Leaders and their agents possessed these drugs.

As further detailed in Exhibit F, on September 24, 2010, four vials of Thiopental Sodium and five vials

of Pancuronium Bromide were returned to the DOC Pharmacy by an agent of either a Team Leader or

the former DOC Director.

f) As detailed in Exhibit G (Controlled Chemical Disposition Record of May 19-21,

2010), on May 20, 2010, the following drugs were administered to inmate Darick

Demorris Walker, without lawful prescription: 2 grams of Thiopental Sodium; 50

milligrams of Pancuronium Bromide; 240 meq of Potassium Chloride. These drugs

were administered via peripheral IV lines by or at the direction of the Team Leaders

or their agents, and at the direction of the former DOC Director or his agents. The

Thiopental Sodium was administered to Mr. Walker for the purpose of inducing

general anesthesia before administering the highly painful and agonizing second and

third drugs to Mr. Walker. The Pancuronium Bromide was administered to Mr.

Walker for the purpose of generally paralyzing his body prior to the injection of the

Potassium Chloride, which stopped his heart.

g) As further detailed in Exhibit G, on May 19, 2010, at the DOC Pharmacy in

Richmond, the Pharmacist dispensed (or directed the dispensation of) twelve vials (6

grams) of the prescription Controlled Substance Thiopental Sodium, 15 vials (150

milligrams) of the prescription Controlled Substance Pancuronium Bromide, and 18

vials (720 meq) of the prescription Controlled Substance Potassium Chloride. These

drugs were delivered to Greensville Correctional Center, “L Unit,” the same day. No

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lawful prescription existed for these drugs. These drugs were distributed by the

Pharmacist to the Team Leaders or their agents. The Team Leaders and their agents

possessed these drugs.On May 21, 2010, four vials of Thiopental Sodium, five vials

of Pancuronium Bromide, and six vials of Potassium Chloride were returned to the

DOC Pharmacy by an agent of the former DOC Director, at the direction of either

the former DOC Director or a Team Leader.

h) Substantially similar occurrences took place in March 2010, November 2009, July

2009, February 2009, and will continue to take place in the future.

Defendants' Unlicensed Activities Cause Intolerable Degrees of Risk and Indignity, Proving the

Public Policy Basis for the Commonwealth's Regulation of Medicine, Anesthesiology, and

Pharmacy:

24. Defendants' actions have caused, and continue to cause, safety risks and indignity. This is

unsurprising, as they are engaging in highly regulated professions without licensure or due

authorization. For example:

a) The batch of Pancuronium administered to Mr. Walker on May 20, 2010 had been

recalled by its manufacturer over two months earlier, on March 16, 2010. See

Exhibit G (Controlled Chemical Disposition Record of May 19-21, 2010),

indicating Pancuronium Lot Number 07P132, and Exhibit H (DOC Documents

Pertaining to Recall of Pancuronium Bromide Lot Number 07P132).

b) The Pancuronium administered to Ms. Lewis was obtained by the DOC Pharmacy

from the University of Virginia Hospital Pharmacy on August 23, 2010, without full

knowledge by the University of Virginia of its intended use. See Exhibit I

(university of Virginia Hospital Pharmacy Department Pharmaceutical Loan/Borrow

Record dated August 23, 2010), and Exhibit B (Perpetual Inventory Log for

Pancuronium Bromide with entries of receipt of Pancuronium on August 23, 2010,

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and dispensation of Pancuronium on September 21, 2010)

c) The DOC injected Mr. Walker and Ms. Lewis with Thiopental manufactured by

Hospira, Inc. despite receiving a letter from Hospira on April 12, 2010 stating that

capital punishment procedures are not the intended use of that drug. See Exhibit J

(Letter from Hospira, Inc., to DOC dated March 31, 2010).

d) The Team Leaders and their agents have spent significant amounts time during

designated training sessions planning events such as barbeques, picnics, and the

collection of money for activities such as the creation of hats reading “One Team

One Mission.” See Exhibit K (Execution Team Log Entry, likely from May 2004).

In one session a rule was enacted that no “horseplay or talkings [sic]” were to occur

during execution simulations. See Exhibit L (Execution Team Log Entry dated

September 8, 2004).

e) The Director selected, and continues to order the use of, Pentobarbital as a general

anesthetic despite the fact that hospitals in the United States virtually never, if not

never, use Pentobarbital to induce anesthesia in a conscious person, that induction of

general anesthesia is not an indicated use of Pentobarbital, and that little to no

medical literature exists on the use of Pentobarbital for that purpose.

f) The Director selected, and continues to order, the dosage of Pentobarbital at an

amount 50% less than other states' departments of corrections use for the same

purpose;3

g) The Director has designated a “waiting period” after injection of the Pentobarbital,

presumably to allow the general anesthetic to take effect prior to the rest of the

procedure, but has chosen a time period of only 30 seconds – a period significantly

3 Although other states' lethal injection procedures are not part of this pleading, Plaintiffs note that other states also

engage medical personnel, such as licensed nurses, in their lethal injection procedures.

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shorter than other states' departments of corrections employ for that purpose,4 and

half the length of time noted in the documents upon which the DOC apparently

relied in choosing its waiting period. See Exhibit P (document from WebMD

labeled “Monograph – Pentobarbital, Pentobarbital Sodium,” which reads: “The

onset of action is within 1 minute following IV administration.” Highlighting in

original received from DOC)

h) The Director has failed to direct that the Team Leaders nor any of their agents

engage in activity designed to determine whether the Pentobarbital has taken effect

prior to continuing with the procedure. In other words, during a lethal injection by

the DOC, no person performs any sort of “consciousness check” whatsoever prior to

injection of Pancuronium or Potassium Chloride. Injections of Pancuronium and

Potessium Chloride would be excruciatingly painful and agonizing to an un-

anesthetized person. The DOC has admitted in prior litigation that no member of

the execution team measured anesthetic depth of the inmate after injection of

Pentothal. See Exhibit O ( Excerpt from Responses to Requests for Admissions,

Walker v. Johnson, 1:05cv934 (E.D.Va. Alexandria 2006), at ¶ 37).

i) During an execution, the Team Leader is the only member of the execution team that

has a view of the condemned inmate's body. The execution team stands behind an

opaque curtain. The Team leader may look through a small porthole in the curtain,

or through small holes cut in the curtain through which the IV lines run. The Team

Leader essentially has a view of the sites where the IV lines are attached to the

inmate's body, as well as the top of the inmate's head, and cannot (and does not)

adequately gauge whether the inmate is unconscious after injection of the anesthetic.

4 Other states' departments of corrections designate waiting periods between 2 and 5 minutes long.

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See Exhibits M and N (Deposition Excerpts of Secret Witnesses II and IV from

Walker v. Johnson, 1:05cv934 (E.D.Va. Alexandria 2006)). A past team leader has

stated that he did not look at the inmate during the injections, because he chose to

focus on the order of the syringes he was injecting. See Exhibit M (Deposition of

Secret Witness IV, page 23, lines 6-9: “I did not peek through the hole and watch the

inmate and the drugs. I concentrated on making sure I gave my syringes in order the

way they should be.”). Another team leader has stated that he was the only team

member with a view of the inmate from behind the curtain, that he could not see the

inmate's eyes, that he was never trained by nor had even spoken to a doctor about his

responsibilities as team leader, and received no training in assessing whether a

person is anesthetized. See Exhibit N at pages 38-39, lines 20-8; page 36, lines 13-

18; page 55, lines 19-21.

j) Prior to the execution of Mr. Jackson, detailed above, the DOC was asked by Mr.

Jackson's attorney to increase the dosage of Pentobarbital, to increase the waiting

period, and to perform a “consciousness check” on Mr. Jackson prior to injection of

the Pancuromium and Potassium Chloride. The DOC declined the request.

k) The Team Leaders and their agents have made careless and mathematical errors in

documents intended to record the amounts of drugs administered during past

executions. See Exhibit M (Deposition of Secret Witness IV), at pages 129-141

(describing oversights, mistakes, miscalculations, and “goofs”: “Q: Okay. Page

2710, in this case, it says that five vials of pentathal were destroyed. A: That's a

mistake in the form[,]” “Q: And does this indicate to you that five containers of

pentathal were destroyed? A: It says either four or five. There's two umbers mixed

together[,]” “A: On the pentathol, it signifies to me that they didn't write the right

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numbers down. Q: Okay. A: Two grams of pentathol, that's four syringes, one gram

– it doesn't match. Q: Okay. A: They must have wrote the wrong numbers down on

destroyed. On the amount given – the correct amount was given, but on the amount

destroyed, he just wrote down 1 gram. Q: And normally – A: It's only – he wrote

down that there were 4 grams. If you look at this, you would think it was 4 grams

that was destroyed, when it was only 2 grams that were destroyed. Q: Okay. So

someone – whoever wrote this, wrote under amount destroyed 1.0? A: Yes. Q:

Which you don't think is the number of vials that were destroyed? A: No, ma'am. I

think that's the grams – because I think this is delivered – this chemical is delibered

in half a milligram – 500 milligram containers. And if you destroy four 500

milligrams containers worth, that's 2 grams. I think he just got confused when he

filled it out[,]” “Q: 2721, this one wasn't filled out. A: Correct. Q: Do you know

why that would be? A: Overlooked when we were doing the – afterwards[,]” “A: No

ma'am. It's showing that two syringes were destroyed. That's just a goof[,]” and “Q:

Okay. On the next page, again, here it says six vials of Potassium Chloride, but only

one syringe? A: Six vials of Potassium Chloride would not fit into a syringe, so it's

two syringes. Q: Okay. And 2729, again, it's not filled out. Just oversight? A: Just

oversight.”

l) In the past, when desiring to increase drug dosages to accommodate an inmate's

weight or other concerns, the Director has directed that additional doses of

Pancuronium and Potassium Chloride be administered – but not additional doses of

the barbiturate anesthetic. This is extremely dangerous, because (as stated above),

improper dosage of the anesthetic will mean that the prisoner remains conscious and

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suffer an agonizing and torturous death.

m) Some Team Leaders and their agents who have participated in lethal injections in the

DOC have not held degrees higher than a high school diploma.

n) The Pharmacist releases controlled lethal injection drugs without designating, in

required forms, the person to whom they will be administered. See Exhibit Q

(DOC Controlled Medication Administration Count Sheet for Pentobarbital with no

inmate name specified).

o) The DOC's last supply of Thiopental expired in October of 2010. See Exhibit B

and Exhibit F. The DOC's current supply of Pentobarbital will have completely

expired by November 2013, see Exhibit R (Chart Created by DOC with Chemical

Expiration Dates), and the Director will likely select a new controlled anesthetic to

take its place, or has already done so, because the DOC's previous suppliers of

Thiopental and Pentobarbital have ceased manufacturing and have prohibited

distribution of the drugs to the DOC due to their improper use in lethal injections.

Specific Remedy Requested:

25. Plaintiffs request the issuance of a writ commanding the Sheriff to summon the Defendants to

appear before this Court at a date set forth in the writ, pursuant to Virginia Code Section 8.01-

637(B) (“If, in the opinion of the court, the matters stated in the petition are sufficient in law to

authorize the issuance of such writ, a writ shall issue thereon, commanding the sheriff to

summon the defendant to appear at a date set forth in the writ.”).

26. Plaintiffs request, pursuant to Virginia Code Section 8.01-643, the remedy of a “judgment as is

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