paint-brush
This Pharmacist Said Prisoners Wouldn’t Feel Pain During Lethal Injection, But Was That Really True?by@propublica
369 reads
369 reads

This Pharmacist Said Prisoners Wouldn’t Feel Pain During Lethal Injection, But Was That Really True?

by Pro PublicaNovember 9th, 2023
Read on Terminal Reader
Read this story w/o Javascript
tldt arrow

Too Long; Didn't Read

This story describes executions and violent deaths. Last winter, Dr. Gail Van Norman sat on the witness stand in the federal courthouse in Oklahoma City, testifying as part of a trial that would determine whether Oklahoma’s lethal injection procedure was constitutional.

People Mentioned

Mention Thumbnail
featured image - This Pharmacist Said Prisoners Wouldn’t Feel Pain During Lethal Injection, But Was That Really True?
Pro Publica HackerNoon profile picture

This article was originally published on ProPublica by Lauren Gill and Daniel Moritz-Rabson. Co-published with Type Investigations. Nina Zweig and Maha Ahmed of Type Investigations contributed research.


This story describes executions and violent deaths.


Last winter, Dr. Gail Van Norman sat on the witness stand in the federal courthouse in Oklahoma City, testifying as part of a trial that would determine whether Oklahoma’s lethal injection procedure was constitutional.


Two weeks earlier, at the request of lawyers representing more than two dozen prisoners, Van Norman, an anesthesiologist and professor at the University of Washington, had attended the execution of a man named Gilbert Ray Postelle.


In the execution chamber, she testified, Postelle was lying face-up on a gurney with his arms stretched out beside him. Executioners injected him with midazolam, a drug that was supposed to knock him unconscious so he didn’t feel pain from two drugs that would soon paralyze him and stop his heart. It didn’t appear to work.


For 2 1/2 minutes after receiving midazolam, Postelle continued to wiggle his hands and feet.


His eyes remained open, blinking and looking up at the ceiling. Postelle’s breathing became increasingly strenuous and rapid. Van Norman said his trouble breathing was a result of the large dose of midazolam.


Minutes later, executioners declared Postelle unconscious and injected him with two syringes of vecuronium bromide, a drug that would paralyze him and stop him from breathing. They then flushed the IV line with saline, pushing any remaining drug into his system.


That was when Van Norman saw him curl the fingers of his left hand and appear to try to make a fist. “This was not a reflex movement,” she said. “This was a conscious movement.” Officials then pumped a third drug into the IV, causing Postelle’s heart to stop.


Van Norman had reviewed documentation of three other executions that Oklahoma had carried out over the previous four months. “I conclude that they did experience extreme pain and suffering through the execution process,” she said.


The feeling, she said, would be akin to suffocation. In previous testimony, other expert witnesses for the prisoners had said they would feel like fire was burning in their veins and as if they were drowning.


At issue was the use of midazolam, a sedative typically used to ease anxiety and produce drowsiness before medical procedures. In circumstances like major surgeries, the drug is paired with other medications, such as opiates, to achieve general anesthesia.


But states have used midazolam alone — and at much higher doses — in executions since 2013, claiming the drug will render people insensate to pain before the administration of other lethal injection drugs. Research into how midazolam works at high doses has been limited because experimenting with such quantities on humans poses ethical problems.


In executions, though, a number of prisoners have reacted like Postelle, gasping, moving or convulsing after being injected with midazolam — actions that have prompted medical professionals to raise concerns that prisoners could still feel pain.


In Oklahoma, prisoners’ attorneys argued that these kinds of reactions showed that the state’s lethal injection protocol violated the U.S. Constitution’s Eighth Amendment ban on cruel and unusual punishment.


Attorneys for the state, however, responded with their own medical experts. Two were anesthesiologists who have regularly worked with the drug. The third was Daniel Buffington, a Florida-based pharmacist who had become a familiar, if divisive, face in the small pool of health care professionals who regularly testify for state governments on the merits of their execution methods. Since 2015, he had testified for seven states, which collectively paid him at least $354,541 for his services.


In Oklahoma, Buffington testified that if the state administered its lethal injection procedure properly, prisoners would not feel severe pain. He disputed the argument of prisoners’ experts that midazolam had a “ceiling effect,” meaning that at a certain point, increasing doses will not increase the drug’s sedative impact.


The pharmacist said there was no evidence of such an effect.


In what had become a familiar routine for Buffington, one of the prisoners’ lawyers challenged his qualifications. Had he ever authored any peer-reviewed articles on midazolam? Not that he was aware of, he said. Had he ever prescribed the drug? He didn’t remember.


Ultimately, U.S. District Judge Stephen Friot sided with the state, saying Buffington and the other experts had convinced him that midazolam would successfully render the prisoners unable to feel pain. He cleared the way for Oklahoma to continue carrying out lethal injections.


The state then scheduled 25 executions, including that of Richard Glossip, the lead plaintiff in the case. Glossip is set to die by lethal injection on May 18.


Similar scenes have played out in courtrooms across the country: Facing constitutional challenges to their lethal injection protocols, states have tapped Buffington to vouch for the ways they execute prisoners, and judges are persuaded, in part by his testimony, even as the controversy over midazolam and other lethal injection drugs has grown.


But an investigation by ProPublica and Type Investigations scrutinized the assertions Buffington has made under oath and found that, for years, as he crisscrossed the country to argue that midazolam ensured a humane death, he seemed to be exaggerating or misrepresenting the scope of what he could legally do as a licensed pharmacist.


Notably, on multiple occasions Buffington has testified that he has prescribed midazolam, which legal experts said could boost his credibility with judges.


But both Florida and Georgia, the states where Buffington is licensed, do not permit pharmacists to prescribe controlled substances, which include midazolam.


In response to the news organizations’ questions, a spokesperson for Buffington said “the word and process of ‘prescribing’ controlled substances” is commonly misunderstood and encompasses advising, recommending and ordering medication in collaboration with physicians — a definition that Buffington has not always used in court.


Some experts in health law disagreed with the characterization of Buffington’s spokesperson. William Allen, an associate professor of bioethics and medical law at the University of Florida, said that Buffington was “trying to stretch the definition of prescribing beyond its normal — and I would say legally appropriate — use.”


To be sure, there are provisions in Florida state law that permit pharmacists to prescribe some drugs under the guidance of, or in collaboration with, a physician. But those provisions do not allow pharmacists to prescribe controlled substances, a point that Buffington noted in a 2021 presentation to Florida medical professionals.


The findings of the news organizations’ investigation raise questions about Buffington’s conduct as an expert witness and the credibility of the testimony itself, which has helped facilitate a number of executions where witnesses said prisoners appeared to be moving or struggling to breathe.


They also highlight critical weaknesses in the judicial system, which relies on judges to act as gatekeepers for expert witnesses. When deciding whether to admit testimony, federal judges must determine that it is more likely than not to be reliable, but some jurists acknowledge this is a difficult duty when evaluating complex or technical science.


Even when prisoners’ attorneys have raised concerns about Buffington’s qualifications or credibility, judges have often allowed him to testify.


“He’s certainly better able to understand and explain induction of anesthesia than I am,” said U.S. Magistrate Judge Michael Merz in a hearing on Ohio’s lethal injection protocol, after a lawyer for prisoners argued that Buffington was inappropriately testifying about anesthesia.


In the cases Buffington has worked on, he has emerged as one of the most strident deniers of the claim that midazolam has a ceiling effect, arguing that concerns about prisoners feeling pain are “fundamentally defective.”


But unlike some of his fellow state experts, who allow for the possibility of such an effect, Buffington, by his own account, has never induced or maintained anesthesia, nor witnessed an execution. His own research has focused mostly on topics such as administrative practices and health care policy.


In vouching for the effectiveness of midazolam in lethal injections, Buffington has repeatedly cited a 2005 study. But the study’s lead author, Dr. Richard Bulach, told ProPublica and Type that his work only dealt with doses that were a fraction of what prisoners receive in executions using midazolam.


“Therefore any opinion re: ‘people unable to perceive pain’ becomes theoretical,” he said via email. “Not ideal if you want to be sure that the person you are executing is ‘insensate’ or better — completely anesthetized.”


A spokesperson for Buffington said the pharmacist stood by his interpretation of the study, saying it demonstrated that midazolam is capable of inducing general anesthesia. Bulach, however, disputed that characterization.


Buffington declined to be interviewed about the findings of this investigation but said in a statement that he had served as an expert witness on a broad range of topics over his 30-year career, testifying for the defense, for plaintiffs and for the prosecution.


“Though lethal injection cases constitute less than 1% of my expert testimony work, my overriding goal has always been to provide the most accurate, well-documented information on the accepted drug protocols commonly used in the United States,” he said.


“I always have — and always will — call for greater transparency in the lethal injection process so that much-needed state-by-state oversight can be provided and problematic executions are avoided.”


His spokesperson noted that Buffington has testified in more than 120 capital murder cases and “in almost every instance, he has testified on behalf of the defendant to spare him from execution.” That testimony has included statements about how medications, drugs or alcohol could have impacted a defendant’s mental state or behavior at the time of their crime.


But when he has testified about lethal injection on behalf of states, he has been squarely focused on their execution protocols.


After judges approved the protocols being challenged in these cases, officials used those methods to execute 34 people, accounting for 19% of all executions nationwide since 2015.


Not all of those executions have gone as smoothly as Buffington predicted they would. In 2017, for example, Buffington was one of two health care experts who testified that Arkansas’ lethal injection protocol, which included midazolam, would ensure prisoners did not experience severe pain.


The courts greenlit four executions. In three of those, prisoners lurched, moved or gulped for air. Likewise, in 2019, Buffington testified in support of Alabama’s lethal injection procedure after prisoner Christopher Lee Price argued it was unconstitutional.


In a filing to the U.S. Supreme Court, the Alabama attorney general cited that testimony as proof that midazolam would adequately anesthetize the prisoner.


The court cleared the way for Alabama to execute Price that evening. According to witnesses, his stomach heaved and he lifted his head after midazolam started flowing into his veins. A reporter from The Montgomery Advertiser observed, “His left fist remained clenched throughout the execution.”


For more than a century, experts have helped propel the development of capital punishment. In 1889, Thomas Edison, the inventor of the lightbulb, testified on behalf of the state of New York as officials were preparing to carry out the nation’s first execution by electrocution.


Lawyers for the prisoner, William Kemmler, alleged that the method violated the Eighth Amendment’s ban on cruel and unusual punishment.


Joining Edison in his approval of New York’s plan were physicians, future presidents of the American Institute of Electrical Engineers and people who had been shocked by electricity.


Like prisoners’ lawyers would do with Buffington more than a century later, Kemmler’s attorney attempted to discredit one of the state’s witnesses, pointing out that he did not have a formal education in electrical engineering, according to Deborah Denno, a Fordham University law professor, who wrote about the case in her 1994 article, “Is Electrocution an Unconstitutional Method of Execution?”


The lawyer also jabbed at Edison’s credibility, forcing him to admit that though he said that electrocution would not be painful, he did not know anything about the conductivity of the brain or the body.


Several lower courts ruled against Kemmler’s challenge, and his lawyers appealed to the U.S. Supreme Court, which allowed the execution to move forward. The court ruled that electrocution was “not inhuman and barbarous” but the “mere extinguishment of life.” It did not go as planned.


After shocks had pulsed through his body for 17 seconds, Kemmler was still alive; when a second current was applied for 70 seconds, the smell of burning flesh filled the room. Local newspapers declared the execution a “historic bungle.”


Nevertheless, grisly executions by electric chair, hanging, gas chamber and firing squad would proceed for the better part of the next century. Then, in 1977, Oklahoma became the first state to adopt lethal injection, offering governments a sanitized approach to executions.


Rather than smelling charred flesh or watching the dark spectacle of the gallows, witnesses saw something that mimicked a medical procedure. Thirty-one states would eventually adopt lethal injection.


It also created a new dilemma though, as prisoners’ attorneys once again challenged the method as unconstitutional: States needed medical and scientific experts to defend lethal injection in court, but physicians’ Hippocratic oath — which includes swearing to “do no harm” — contradicted working in favor of executing people.


In 1980, the American Medical Association made its opposition formal, and it has since prohibited its members from “participating” in executions — a term that it defines broadly to include providing technical advice to executioners as well as expert testimony on the efficacy of methods. Other medical organizations, such as the American Board of Anesthesiology, would follow in the AMA’s footsteps.


Some medical professionals teamed up with the government anyway.


But in the past decade, states hit another hurdle: pharmaceutical manufacturers stopped supplying them with lethal injection drugs. In 2011, the U.S.-based Hospira announced that it would cease selling sodium thiopental, a barbiturate that was used to render prisoners unconscious when administered as the first drug in a lethal three-drug protocol.


The drug was being manufactured in Italy, and the European Union, which had outlawed capital punishment, grew concerned over its use in executions. A Danish manufacturer of another execution drug, pentobarbital, followed suit later that year, prohibiting sales for executions, and the British government banned the export of the drug to the United States.


Amid the drug shortage, states turned to midazolam, a sedative that’s widely available in the U.S. The medication is typically used to help patients relax before they are administered anesthetic agents.


But in executions, midazolam is used differently; officials use much higher doses of the drug — enough, they say, to knock prisoners out and prevent them from feeling pain from the subsequent lethal injection drugs.


In 2013, Florida became the first state to use midazolam in an execution, but the drug did not produce the effect that officials promised. The prisoner, a man named William Happ, “remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection under the old formula,” reported The Associated Press, which was present.


Despite its apparent issues, midazolam was adopted by nine states in their lethal injection procedures, triggering a new round of legal challenges over the method of execution.


Faced with lawsuits and mounting evidence that the drug didn’t work, states relied on a small pool of experts to defend the drug’s efficacy.


In 2014, Dr. Mark Dershwitz, an anesthesiologist and professor at the University of Massachusetts Chan Medical School who had served as an expert in court cases for more than 20 states, stopped testifying. His decision followed an Ohio execution in which the prisoner gasped and choked for more than 10 minutes.


The entire execution lasted nearly half an hour — the state’s longest in 15 years. Dershwitz had previously vouched for the lethal injection protocol, which involved midazolam, and, according to a report in The New Republic, called it quits over concerns that the publicity surrounding the execution would lead the American Board of Anesthesiology to pull his board certification.


Dershwitz and the American Board of Anesthesiology declined to comment.


As new lethal formulations attracted a flurry of litigation, states tapped other medical experts, including some pharmacists.


While the American Pharmacists Association “discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care,” its members are not bound by the Hippocratic oath or rules banning them from testifying in favor of lethal injection.


But pharmacists aren’t medical doctors, and their experiences with midazolam and other controlled substances were largely limited to reading drug inserts, dispensing drugs or observing their use during procedures. “They’re not medically qualified,” said Denno, the Fordham law professor, who called states’ reliance on them “desperate.”


In the early 1990s, Buffington started Clinical Pharmacology Services, a Tampa-based business that provides consulting for health care facilities, physicians and patients on medications, as well as expert witness services for court cases.


Since then, retired pharmacist Paul Doering has encountered Buffington at professional events and courtrooms in Florida. The two served as expert witnesses on opposite sides of cases. And at first, Doering was impressed. Buffington, he said, was charming and confident, brimming with charisma.


Over the years, however, Doering said he was also troubled by something he noticed: Buffington seemed to overstate his experience and bend his opinions to fit his clients’ needs.


In 2011, for example, Buffington testified that he had the authority to prescribe a controlled substance “under specially collaborative practice” and that he was registered with the Drug Enforcement Administration, a requirement for prescribing or researching such drugs.


That credential was relevant because he had been tapped by the defense in a capital murder case to talk about what effects various medications, including an opioid, would have had on the defendant at the time of an interview with law enforcement.


Florida prosecutor Peter Magrino challenged Buffington’s claim about prescriptive power, though, citing affidavits from the DEA. While Buffington did hold two DEA registrations at the time, neither granted him any prescriptive authority.


One allowed him to study marijuana and the other allowed him to research additional controlled substances, according to the documents, which were reviewed by ProPublica and Type.


Buffington pushed back, saying the registrations “involve the capacity as a clinical pharmacologist to manage and dispense and prescribe” certain controlled substances, “specifically for research purposes.” The judge quashed the debate at the time, concluding that Buffington had “given sufficient qualifications” to be accepted as an expert witness in the case.


But a former DEA employee confirmed to ProPublica and Type that, as the affidavits indicated, Buffington has never had a DEA registration that would enable him to prescribe controlled substances.


Magrino was so troubled by Buffington’s testimony during the state case that he later wrote a letter to the dean of the University of Florida College of Pharmacy, where Buffington was a clinical associate professor, an unpaid role in which he supervised pharmacy students at his business. In the letter, a copy of which was obtained by the news organizations, Magrino sent a transcript for the dean to review and invited him to take “any actions you feel appropriate.”


“Having been an Assistant State Attorney since 1983 I have had many dealings with expert witnesses and rarely contact folks the witness is associated with,” Magrino wrote, “however this is one of those occasions.” In an interview, the prosecutor said that he never heard back from the dean.


(The dean did not respond to requests for comment for this story. The university said it was unable to confirm receipt of the letter, but noted that Buffington remains in the same unpaid role he had in 2011.)


“He was overstating his credentials, which qualified him to render some ridiculous expert opinions,” Magrino told ProPublica and Type. A spokesperson for Buffington did not comment on the prosecutor’s remarks but noted that Buffington did not face any disciplinary action or ramifications “if such a letter was ever sent.”


In another case, in late 2013, Buffington testified at a personal injury trial against a physician who had caused an accident after he had fallen asleep while driving. (Doering testified for the defense.) The doctor had a prescription for a sedative called temazepam, which is commonly used to treat insomnia.


When the plaintiffs’ lawyer, who had hired Buffington, asked whether someone could take temazepam and drive, Buffington responded, “No, sir. … You would never want to take this medication and get behind the wheel.”

Under cross-examination, he conceded that many people do use the drug and drive cars, but that “it is strongly cautioned against, because of the risk.”


Four months later, when Buffington testified for the defense in a murder case about medications detected in the victim’s autopsy, he offered a different opinion of temazepam.


This time, when asked about a person driving a car after taking the drug, which is also known by the brand name Restoril, he stated, “It is appropriate and it is done routinely.”


At one point, Miami-Dade County assistant state attorney Gail Levine accused Buffington of providing answers to benefit the defense case without providing data to back it up. “You have come here to say the victim in this case was not impaired because that’s what you have been paid to say; isn’t that true?” she asked.


“I take great offense at that,” Buffington responded.


Doering said the disparity in Buffington’s assessments was problematic. “I can’t condone Dan Buffington swinging like a weather vane on the top of a barn,” he said.


A spokesperson for Buffington said the “nature of these two cases was clinically very different and it is misleading to liken the two fact patterns.” The testimony in both cases was accurate and not contradictory, the spokesperson said.


Medical professionals in Florida also took note of Buffington.


In 2013, the pharmacist was called to testify on behalf of a defendant accused of beating a man to death. The medical examiner’s report stated that the victim’s cause of death was blunt trauma, which split the victim’s spleen and caused bleeding in his abdomen, broken ribs and head injuries.


Buffington, however, had a different opinion. The victim was a long-term cocaine user and laboratory tests had found drugs, including cocaine, in his system. Buffington said the victim’s cocaine use was “equally plausible” as a reason for his death.


Dr. Jon Thogmartin, the medical examiner in the case and a board-certified pathologist, testified that it made no sense to suggest that the victim could have died from cocaine use “right around the time of” a brutal beating.


“That’s just not how you practice forensic pathology,” he said in court. In an interview, Thogmartin said that he felt the court should not have allowed Buffington to testify about cause of death and that he thought “most experts should know the limits of their expertise.”


The judge who presided over the trial has since retired, and the Florida court where the case was heard did not respond to a request for comment.


A spokesperson for Buffington said that disagreement between expert witnesses is “a hallmark of the American justice system” and called it “unremarkable” that the opposing side disagreed with Buffington’s testimony. According to the spokesperson, Buffington never said that blunt trauma didn’t cause the victim’s death and he stands by his testimony.


For a few years, Roswell Lee Evans, then dean of the Harrison School (now College) of Pharmacy at Auburn University, was a key expert for some states that were defending their execution protocols, testifying that high doses of midazolam would prevent an individual from feeling pain and would induce unconsciousness. But by 2015, that opinion was being called into question.


The previous year, prisoners in two states showed what some medical professionals said were signs of consciousness during their executions. In Ohio, witnesses reported that a prisoner heaved and snorted. One Arizona execution lasted almost two hours.


Critics took aim at Evans’ qualifications. In one Florida case, he testified that he had never used midazolam during treatment and had never induced anesthesia. In a different case in Oklahoma, the reference section of his expert report contained over 180 pages of printouts from the consumer website Drugs.com.


Prisoners’ lawyers filed a motion to limit his testimony in that case because it would have extended beyond the scope of his expertise.


Friot, the district court judge who also oversaw the case in which Buffington and Van Norman testified last year, denied the motion and allowed Evans to testify. Friot’s denial was ultimately affirmed by the U.S. Supreme Court in 2015, when it ruled that Oklahoma’s execution protocol did not violate the Eighth Amendment.


The majority opinion, written by Justice Samuel Alito, said Evans’ testimony was credible, noting that Evans had relied on multiple sources, not just Drugs.com.


Justice Sonia Sotomayor harshly criticized the decision though, writing that Evans had offered “scientifically unsupported and implausible testimony” and made “wholly unsupported” claims about midazolam’s effect on the brain. (Evans did not respond to requests for comment on those criticisms and Friot declined to comment for this story.)


That year, Buffington accepted his first lethal injection case, according to a document he later submitted to a court. Attorneys at the Alabama attorney general’s office tapped both him and Evans to testify in defense of the state’s newly adopted lethal injection protocol.


Thomas Arthur, a death row prisoner, had claimed the use of midazolam carried a substantial risk that he would experience the pain of a massive heart attack he said he was likely to suffer during his execution because of a health condition.


Like Evans, Buffington opined that high doses of midazolam would leave the prisoner unable to feel pain. Arthur’s lawyer, Adam Brebner, asked Buffington directly, “You have never prescribed or administered midazolam.”


“That is correct,” Buffington replied.


But later in the same deposition, the pharmacist contradicted himself.


“Are you entitled to write prescriptions for Class IV medication?” Brebner asked.


“Yes,” Buffington replied.


“Have you ever written a prescription for midazolam?” Brebner asked.


“Yes,” Buffington said. He had prescribed the drug to “a patient,” he said.


Later that month, lawyers for Arthur filed a motion to exclude, or at least limit, Buffington’s testimony. They argued that his report and testimony went “well beyond the expertise of a pharmacist” and his opinions on midazolam’s effects were “unreliable.”


The district court did not consider Buffington’s deposition but decided the case in favor of Alabama, which executed Arthur in 2017.


Buffington went on to become one of a handful of experts that states tapped to testify in lethal injection litigation. And in some of those cases, he said that he had prescribed or could prescribe midazolam. His own accounting of his prescribing authority and experiences, however, varied from case to case, becoming a point of contention for prisoners’ lawyers.


In Ohio in 2017, he told lawyers that he had prescribed midazolam “probably three” times. Notably, he said he had done so only after his appearance in the Arthur case — a statement that contradicted his 2015 claim in that case that he had already prescribed the medication.


But when subpoenaed by an Ohio federal public defender for details of his experience with the drug, he did not provide specifics, writing that he didn’t recall patient names and wasn’t aware of records from when he prescribed midazolam.


Three months after his Ohio testimony, he testified in Arkansas that he had prescribed midazolam during a clinical research procedure, though he clarified that he would call it an “order” — the term Buffington has sometimes used in court to describe prescribing medication in an in-patient setting. He said he couldn’t remember how many times he had done so.


But Buffington is not legally permitted to prescribe controlled substances. According to a DEA spokesperson, “a pharmacist’s ability to prescribe controlled substances is determined by state law,” and, by the agency’s count, neither Florida nor Georgia give pharmacists that authority.


In response to questions for this story, the Florida Department of Health and the Georgia Pharmacy Board — along with several practicing and retired pharmacists, pharmacy professors and health law experts in the two states — confirmed those restrictions.


When asked about Buffington’s description of ordering controlled substances in an in-patient setting, health care law experts in Florida said that physicians — not pharmacists — are the ones who initiate such orders.


To be sure, Florida law has provisions that allow pharmacists to prescribe some drugs under the guidance of, or in collaboration with, a physician. But that power is strictly limited to noncontrolled substances for the treatment of minor conditions, like the flu and lice, or some chronic health conditions, such as asthma and Type 2 diabetes.


Outside the courtroom, Buffington himself has underscored that very point. In a presentation that he prepared for the Florida Pharmacy Association’s 2021 annual meeting and convention, Buffington noted that those provisions of Florida law do not permit pharmacists to prescribe controlled substances, according to a copy of the presentation obtained by ProPublica and Type.


In response to questions, a spokesperson for Buffington said that the pharmacist had used the term “prescribing” to mean that he has “on numerous occasions advised, recommended and ordered patient medication … in collaboration with physicians.”


In some testimony, however, he has appeared to use a narrower definition of the term, distinguishing between prescribing and other actions. In Ohio, for example, he said in court he had only “recommended” midazolam during consultations before December 2015 but had since prescribed the drug.


And in another case, in Florida, Buffington argued that the law allows him to actually write prescriptions for a wide range of medications.


Specifically, in a 2017 hearing on the state’s lethal injection protocol, he said that under the right circumstances, he could write a prescription for morphine and midazolam, among other drugs, for the prison.


When asked about that testimony, the spokesperson said Buffington had never testified that he wrote an “outpatient” prescription and had never written a prescription for a controlled substance to be filled at a community pharmacy.


Instead, “he has worked in concert with medical personnel in prescribing medication on an inpatient basis or special practice setting” in compliance with state and federal law.


Last year, his recollections of his prescribing history appeared muddier. Asked by an Oklahoma prisoners’ lawyer about whether he had written a prescription for midazolam, Buffington said the term had “broad meaning” but he did not remember whether he had prescribed the drug. “I would have to go back to look,” he said. “I said I don’t recall.”


In recent years, Buffington has won influential posts in state and national pharmacy groups, serving on the board of the American Pharmacists Association for three years and currently serving as chair of the Florida Pharmacy Association’s board.


Representatives from both organizations did not comment on specific findings by ProPublica and Type Investigations, but Helen Sairany, the executive vice president and CEO of the Florida Pharmacy Association, wrote in an email, “Dan Buffington is a noble man and someone I look up to.”


Some of his peers on the lethal injection circuit have been less charitable. Experts in these cases often pick at the science presented by opponents.


But in conversations with ProPublica and Type Investigations, and in expert reports submitted to the court, doctors and pharmacologists leveled an additional criticism akin to what Florida professionals had observed years ago: Buffington has testified beyond the scope of his education and training.


Buffington has a Doctor of Pharmacy degree and a master’s in business administration. And he has identified himself in testimony, depositions and court documents as a clinical pharmacologist and a toxicologist, specialties that can involve additional training and research into how drugs impact the body.


When asked to evaluate Buffington’s professional background, though, six professors who specialize in clinical pharmacology or toxicology felt his credentials did not meet the qualifications they would expect of someone who claims these titles.


While Buffington did complete a yearlong clinical pharmacology fellowship after pharmacy school, experts noted his resume lacked other relevant markers, like robust research publication in their area of expertise and board certifications specific to their field.


In court, prisoners’ experts have challenged his opinions on similar grounds.


“Dr. Buffington is not a clinical pharmacologist; he is a clinical pharmacist,” wrote Dr. David J. Greenblatt, a pharmacologist who conducted some of the earliest research on midazolam, in a 2019 rebuttal report.


“Based on his education, training, and professional experience and licensure, Dr. Buffington simply has, in my view as an actual clinical pharmacologist, no expertise or qualifications that would support his rendering expert opinions on the basic and clinical pharmacologic issues in the present case.”


In particular, opposing experts take issue with Buffington’s research experience, noting that it does not appear related to benzodiazepines — the class of drugs to which midazolam belongs.


Of the published work listed on his resume, much of it is about administrative practices and health care policy.


In response to written questions, a spokesperson for Buffington disagreed with those assessments, saying Buffington “has significant training and professional expertise in the areas in which he testifies as an expert witness.”


The spokesperson said that those with a doctor of pharmacy degree “have the greatest amount of clinical pharmacology training among all health care professionals, including physicians.”


The spokesperson also said board certification is not necessary for clinical practice or giving testimony and that “there is no threshold to determine practice, knowledge, or experience based on the number of publications a practitioner has authored.”


All of this matters because many lethal injection cases have involved highly technical debates about how midazolam works in the body. And Buffington’s opinion — that there is no evidence of a ceiling effect — represents a divergence from many experts in the field.


“It is widely recognized in the scientific and medical community that midazolam alone cannot be used to maintain adequate anesthesia for surgery,” reads a brief from 16 professors of pharmacology that was filed with the Supreme Court in 2015.


The drug “is incapable of rendering an inmate unconscious prior to the injection of the second and third drugs in the State of Oklahoma’s lethal injection protocol.”


Judges in two other lethal injection cases have cited similar concerns in temporarily halting executions using midazolam.


Notably, in Ohio, the judge observed that Arizona and Florida had abandoned their use of the drug after issues arose during executions there. Ohio’s use of midazolam, he wrote in a 2017 order, created an “objectively intolerable risk of harm.”


A spokesperson for Buffington said Buffington stands by his assessment. To be sure, prisoners’ expert witnesses acknowledge that there haven’t been studies on midazolam doses as high as the ones used in lethal injections, but they say that the ceiling effect has been shown in studies with lower doses.


Opposing experts, however, are not the only ones whose opinions diverge from Buffington’s. His fellow state experts have been less forceful in denying that midazolam has a ceiling effect and in vouching for its ability to anesthetize someone at high doses.


Last year in Oklahoma, for example, Buffington testified that general anesthesia induced solely by midazolam would last approximately 60 to 90 minutes.


But another state expert, an anesthesiologist, said that the drug alone cannot maintain general anesthesia. Under questioning from the judge, he said that he would only rely on midazolam alone to induce anesthesia — that is, without the addition of other drugs — for a short procedure “where it was going to literally take 30 seconds,” but not for a longer procedure. (Buffington did not respond to a question about this testimony.)


The same state expert has disagreed with Buffington’s assessment of another drug as well. In 2017, for example, Buffington said that the injection of vecuronium bromide, a paralytic used as the second drug in lethal injection in some states, would be a “peaceful experience.”


The anesthesiologist working for the state, however, disagreed, testifying in the same hearing that the resulting method of death would be the inability to breathe. (Buffington did not respond to a question about this testimony.)


When asked about his qualifications in court, Buffington has sometimes referred to his academic experience. “I am the person who teaches an anesthesiologist on medications used for anesthesia, for analgesia, for maintenance, for recovery,” he said two years ago in the Oklahoma lethal injection case.


Asked where he had done so, he replied that he had taught at conferences, consultations and colleges of medicine, including Emory University and the University of South Florida.


Emory did not return multiple requests for comment and a USF spokesperson said that the school could not speak to whether Buffington has taught anesthesiologists there. The spokesperson did note, however, that the university has not had a department of anesthesiology for about two decades.


In response to questions from the news organizations, Buffington’s spokesperson said that Buffington has “conducted lectures for anesthesiologists at USF and across the Tampa Bay area,” though, when asked, did not give any more specifics.


As for the claim about Emory, the spokesperson said Buffington doesn’t have those records, which would be from over 30 years ago.


Records obtained from 10 other universities, which were listed on Buffington’s resume, show that his teaching experience primarily consists of presenting guest lectures or instructing a single class. None mention anesthesiology.


Buffington has also worked as a consultant outside the courtroom in several states, including some that have faced challenges over the viability and constitutionality of their execution methods.


His spokesperson told ProPublica and Type that California, Georgia, Ohio, Florida and Alabama had asked Buffington “about the pharmacologic properties of drugs used in lethal injection protocols.” Those states did not respond to requests for comment, declined to comment or could not confirm Buffington's role.


In November 2020, Alabama tapped Buffington’s company to consult on nitrogen gas, which the state is planning to use to execute prisoners via suffocation. In a brief interview early in ProPublica and Type’s investigation, Buffington denied involvement with Alabama’s execution protocol, but confirmed that the state had asked him questions about “the pharmacology” of inert gasses.


He blamed problems in past lethal injections on executioners who carried the procedure out improperly, not on the drugs that were used. Nevertheless, nitrogen, he said, would make it easier to ensure that nothing would go amiss.


“I think that the use of the inert gasses represents a viable and effective alternative that may be quicker and potentially have fewer potentials for administration challenges,” he said.


In February, the state’s prison commissioner said that the department of corrections “should be” finished developing a nitrogen hypoxia protocol by the end of 2023. Alabama’s use would be the first time a state used such a method in an execution.


Meanwhile, Oklahoma is moving forward with lethal injection. It plans to execute Richard Glossip in May, roughly one year after a judge ruled against him based, in part, on the testimony of Buffington and the other state experts.


In an interview with ProPublica and Type, Glossip said he was not surprised by the ruling. He had challenged the state’s execution method as cruel and unusual before, in 2014, and lost then too.


He said he was now focusing on his family and bracing himself for the death chamber. “I tried to put as much of that behind me,” he said of the legal case, “because I know it’s a possibility that I’m gonna go back up there.”


Glossip, 60, has been scheduled for execution eight times before. Once, in September 2015, he was within hours of receiving the lethal injection when then-Gov. Mary Fallin called it off because Oklahoma had acquired the wrong drug.


More recently, officials have postponed the execution for other reasons. Glossip has long claimed that he’s innocent of the 1997 murder of a motel owner that sent him to death row, and last year, a bipartisan group of state lawmakers signed onto his cause, hiring a Texas law firm to investigate the case. The firm concluded that “no reasonable jury hearing the complete record would even have convicted Glossip.”


In November, Gov. Kevin Stitt granted him a temporary reprieve so that an appeals court could have more time to consider his case. The state’s attorney general, raising concerns about the evidence behind the murder charge, also asked the Oklahoma court of criminal appeals to throw out Glossip’s conviction and order a new trial.


The court, however, rejected that request last week, saying Glossip’s case “has been thoroughly investigated and reviewed.”


On Wednesday, the Oklahoma Pardon and Parole Board denied Glossip’s petition for clemency. His attorneys have asked the U.S. Supreme Court to stay his execution and have called on the governor to grant another temporary reprieve.


Still, correctional officers have told Glossip to start thinking about his last meal. In fact, he has eaten the same thing — a Baconator from Wendy’s, fish and chips, and a strawberry shake — so many times that they have recommended he try something new this time around: a local pizza place.


While his case plays out, Glossip spends the majority of his day confined in a small cell, where he has a TV and a digital tablet, which enables him to make calls. He talks to his wife, Lea, while eating dinner, and they watch old movies like “Rebel Without a Cause” together. On Sundays, she uses her phone to broadcast church services to him.


Since the court’s decision last year, Oklahoma has executed four prisoners: James Coddington, Benjamin Cole, Richard Fairchild and Scott Eizember. Each time, the cellblock grows quieter, Glossip said. And for those who are left, a key question about the execution process remains. “What if it goes wrong?” Glossip asked.


How We Reported This Story

To learn more about how Buffington became a regular on the stand in lethal injection cases over the last seven years, ProPublica and Type reviewed more than 14,000 pages of court transcripts, legal filings, personnel records, syllabi, emails, research studies, payment records and government contracts.


We also communicated with and interviewed more than 100 people, including physicians, lawyers, legal experts, expert witnesses, scientists and professors. Some of those sources were involved in cases where Buffington also testified, including lethal injection cases and other civil and criminal litigation.


Nina Zweig and Maha Ahmed of Type Investigations contributed research.


Photo by Raghavendra V. Konkathi on Unsplash