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Family alleges Ohio execution unconstitutional



COLUMBUS, Ohio (AP) - The prolonged execution of an Ohio inmate during which he repeatedly gasped and snorted amounted to cruel and unusual punishment which should not be allowed to happen again, the inmate's family said in a federal lawsuit.

The lawsuit, filed late Friday, also alleges the drug maker that produced the medications illegally allowed them to be used for an execution and should be prohibited from making them available for capital punishment.

McGuire "repeated cycles of snorting, gurgling and arching his back, appearing to writhe in pain," the lawsuit said. "It looked and sounded as though he was suffocating."

McGuire's execution lasted 26 minutes, the longest since the state resumed putting inmates to death in 1999, according to an Associated Press analysis of all 53 execution logs maintained by the Department of Rehabilitation and Correction.

It remains unclear what McGuire experienced. The AP observed him appearing to fall unconscious and remaining so while he snorted, gasped and opened and shut his mouth repeatedly.

McGuire's execution, during which his adult children sobbed in dismay, has led to several calls for a moratorium on capital punishment in the state.

In addition, a separate federal lawsuit filed Thursday seeks to stop the March execution of a northeast Ohio killer on the grounds that condemned inmates could be clinically alive for as long as 45 minutes after a time of death is announced in the state death chamber.

Attorneys for Gregory Lott, who is scheduled to die March 19 for setting an East Cleveland man on fire in 1986 and leaving him to die, also say Ohio is breaking state and federal law by using the drugs without a prescription.

The lawsuit by McGuire's family targets Lake Forest, Ill.-based Hospira Inc., the manufacturer of the drugs used in McGuire's execution.

The company knew its drugs were being used for executions but continued to sell them to Ohio, according to the lawsuit, which seeks damages above $75,000.

Hospira should have known that the drugs "would cause unnecessary and extreme pain and suffering during the execution process," the lawsuit said.

In 2011, Hospira ended production of sodium thiopental, a drug used by many states for executions, including Ohio, after it couldn't guarantee to Italian authorities where its factory was located that the drug wouldn't be used for capital punishment.

The company also has prohibited other drugs from being used in executions, and will take the same steps for midazolam and hydromorphone, the drugs used in the McGuire execution, according to a company statement.

Medical experts wouldn't comment on McGuire's execution or speculate about what he experienced. They agreed that used for surgeries, the two drugs by themselves wouldn't cause pain.

"They are actually used to prevent any pain or discomfort, in a surgical procedure or any other kind of procedure as well," said Robert Weber, administrator for pharmacy services at the Ohio State University medical center.

The first drug, midazolam - sometimes known by its trade name Versed - is administered in surgery to help calm patients, said Dr. Howard Nearman, professor of anesthesiology at Case Western Reserve University. The second, hydromorphone, known by the trade name Dilaudid, is a strong narcotic meant to reduce pain.

"By virtue of what they do, they cause unconsciousness and they inhibit pain," Nearman said.

An anesthesiologist hired by McGuire's attorneys before his execution predicted the inmate would suffer "agony and terror" as he experienced a phenomenon known as air hunger, or the desperate attempt to catch his breath as he suffocated.

An anesthesiologist hired by the state disputed that scenario. That doctor, Mark Dershwitz of the University of Massachusetts, also said McGuire's airways could become obstructed and he might snore as a result, though he would not suffer.

The obstruction of a patient's airways can be a common reaction to sedation, especially if the patient is obese, said Dr. Andrew Casabianca, interim chair of the University of Toledo College of Medicine's Department of Anesthesia.

"Their respiratory rate starts slowing down. Their heart rate may slow down. Their ventilation slows down," he said.

The drugs weren't designed to cause death, Jon Paul Rion, the McGuire family attorney, told the AP Friday.

"There's a clear distinction between a therapeutic use of a drug in a medical environment as opposed to using that drug in an execution style," he said.

"That's the concern, that we're taking drugs that have therapeutic value and we're not using them for the purposes for which the FDA approved nor for which the clinical tests were performed," he said.

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yaf555 January 27 2014 at 1:21 AM

an attorney will represent a cabbage for money

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Debbie January 26 2014 at 7:32 PM

Are these people nuts? The man did not suffer anywhere near as much as his victims. He didn't deserve any less pain than he inflicted on them. How would they feel if the shoe was on the other foot and their family member had been the victim. They're just looking to make money, that's all.

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Chris January 26 2014 at 6:46 PM

We're supposed to feel sorry for a monster who raped, sodomized, and murdered a woman who was eight months pregnant? Really? His family actually uttered the words "cruel and unusual punishment" in regard to HIM? Here's an idea: If you're afraid that the method of execution might be unnecessarily painful, DON'T BE A MURDERER.

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yaf555 January 26 2014 at 4:55 PM

I wonder if that attorney would like to be part of the clinical trial for that medication...did the person he murdered have the same cortesy extended them...ijs

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kennyk113 January 26 2014 at 3:02 PM

Did anyone figure how long it took and how much pain the victums endured? I hope that the victums family will sue the family of this animal.

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cocolava21 January 26 2014 at 2:20 PM

He clearly did not care if his victims suffered at his bare hands or not. I do not hear his son and wife or daughter crying for his dead victim and they have the nerve to SUE CAUSE HE SUFFERED really. They should win the lawsuit and it should be given to his dead victims families. This is BS.....

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Joepalooka January 26 2014 at 5:36 AM

outrageous. Don't permit them a dime!

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xdrumline1 January 26 2014 at 5:28 AM

Hmm....let's see....the inmate BURNED A MAN TO DEATH.....& yet the kids are crying foul???

CLEARLY the apple doesn't fall far from the tree here. They are just as messed up as him!!!

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jtoppa January 26 2014 at 5:09 AM

Why sue? He wasn't worth a plugged nickel. I bet his victims felt more pain than he did and his family is just pretending to see if they can score.

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cmatthews3528 January 26 2014 at 4:22 AM

so this family condones murder, how many times did his victim gurgle for air, did he care ? If they get any thing it will be such an injustice, what if they hung him or electric chair is thast injustice, this is just afamily trying to make money, ask them how long did it take for the victim to die

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