Who Should Bear the Burden of Preventing Pain in US Executions?

A physician uses a cartoon lawsuit to question the burdens US execution law places on condemned prisoners.

As a physician, I have spent a career on the far side of a fact pattern I did not choose. This is the moment when something prescribed or administered goes wrong inside a body that trusted it not to. I have seen that more than once. It would be more comfortable to cast myself as the one who gets hurt. It is more honest to say I am the supplier. The drug, the dose, the device, and the airway all enter the body through me. In the cartoon, I am not the coyote. I am Acme.

I came to negligence law by a side door. After years of expert defense work in post-conviction capital cases, I began reading the autopsy reports of people executed by the state. I found that the questions I most needed answered were no longer strictly medical. I went back for a master’s in bioethics and then a Master of Jurisprudence. That is my partiality, declared up front. I came to negligence law because I had evidence and nowhere to put it.

What I found there was a doctrine that kept having to be rediscovered. Thomas v. Winchester, 6 N.Y. 397 (1852), held a druggist liable to a woman poisoned by belladonna he had labeled as dandelion extract, though she had bought it from someone else. That should have settled it. Sixty-four years later, Judge Cardozo had to dismantle privity again in MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916). Sixteen years after that, the House of Lords did it a third time in Donoghue v. Stevenson, AC 562 (1932), reaching across the Atlantic for Judge Cardozo’s reasoning as it went. The principle was a rediscovery at its birth.

Products law then expanded beyond negligence to include strict liability. Strict liability also has limits. Restatement (Second) of Torts § 402A cmt. k (1965) carves out unavoidably unsafe products. These are things that cannot be made completely safe for their intended use but whose benefit justifies the risk, provided the products are properly prepared and accompanied by appropriate directions and warnings. Prescription drugs and vaccines are examples. In my own work, the patient’s condition afterward does not by itself answer whether I met the standard of care. This is understood as what a reasonable physician should have foreseen and prevented. It also has a limit built into its own terms. It shields the unavoidable. It does not shield the uncorrected.

Which brings me to Coyote v. Acme, Ian Frazier’s 1990 mock complaint in The New Yorker: Wile E. Coyote sues the Acme Company over decades of defective rocket skates, spring-loaded boxing gloves, and anvils that reliably find his skull. The film adaptation, Coyote vs. Acme, was released on August 28.

Duty is the easy element. It took doctrinal labor in Donoghue only because May Donoghue was a stranger to the transaction. The Coyote is Acme’s direct, repeat, catalog customer.

Breach is where the case lives, and Acme’s best defense is not the fine print. It is misuse. Acme will say the rocket skate performs to specification and that no reasonable manufacturer foresees a customer strapping it on to overtake a bird at ground level on a mountain road, repeatedly, after each detonation. Misuse locates the defect in the user, and it is what the Acme lawyer leads with.

Assumption of risk comes second. He has used this skate, watched it explode, and strapped it on again. The tempting reply is that Acme’s knowledge cancels his, and that is wrong; both are true at once. Forty years of catalog orders are evidence the Coyote knew, and the identical 40 years are evidence Acme knew. But the Coyote’s knowledge does not answer the question of Acme’s responsibility. What should we make of a manufacturer that knows of repeated catastrophic failures and keeps shipping?

Coyote v. Acme uses comedy to relax us before considering a serious subject. Now comes the part I cannot make comedic.

I have read the autopsy reports of more than 250 people executed by lethal injection, and I have been retained to examine protocols in nine states and by the federal government. The recurring finding is pulmonary edema: lungs heavy and wet, frothy fluid in the airways.

Fluid at autopsy establishes that fluid accumulated. It does not establish that the person felt it accumulate. The state’s argument is not that the prisoner was comfortable; it is a claim about sequence. Anesthesia first, edema afterward, in a body already past sensation. That is the dispute. Foam speaks to the timing of breathing, though it does not by itself establish awareness. Frothy fluid is plasma whipped with air, and whipping it requires air still moving through the fluid. The froth is the record of breathing against a filling lung. Without the paralytic, witnesses have seen coughing, struggling, and other unexplained movements.

The defense is always some version of known, inherent, unavoidable. Knowledge does not excuse; knowledge is what creates the obligation. Disclosure does not excuse when the person disclosed to cannot decline. A known and correctable risk left uncorrected is not unavoidable.

The analogy will not go beyond that. Executions are not a negligence case. The death is intended, not merely foreseen. The underlying interests are inverted. Coyote wants the rocket skate to work while the condemned man wants the protocol to fail. Products law assumes a shared interest in the thing functioning. Nothing in Donoghue governs an execution, and I do not argue that it does.

The argument is about who carries the burden. Under Glossip v. Gross, 576 U.S. 863 (2015), and Bucklew v. Precythe, 587 U.S. 119 (2019), a prisoner challenging a method of execution under the Eighth Amendment must identify a known and available alternative procedure that would significantly reduce a substantial risk of severe pain. Read that as a tort lawyer. It is the correctability question with the burden reversed. Lord Atkin’s principle requires reasonable care to avoid foreseeable injury to those closely and directly affected by one’s conduct. In a constitutional challenge to an execution method, the condemned prisoner must identify a feasible alternative that would significantly reduce the risk of severe pain.

I argued in JURIST last year for a constitutional safeguard against botched executions. This is the prior question, and the one that decides the rest: who must prove the protocol is broken? We have answered: the prisoner strapped to the table.

Here is the fact about Donoghue I find hardest to shake. The House of Lords did not determine whether the alleged snail was actually present. The case turned on a preliminary question of whether the pleadings, if true, disclosed a cause of action.

So the doctrine governing what I owe a patient was built on a snail that may not have existed, and it holds when tested against an anvil that certainly does not. The principle does not depend on the sympathy of its facts. Mrs. Donoghue did not have to prove the snail’s presence for the House of Lords to recognize a duty of care on the facts alleged. The condemned man has more than 250 autopsies, and the law asks him for something else entirely. That is not a doctrine tested against hard facts and found wanting. It is a doctrine kept from ever meeting them.

Which returns me to where I started. If knowledge of a correctable harm creates the duty to correct it, the principle indicts the state, and it was never going to spare me. I am the supplier. I am the one who has been told. Acme’s worst moment is not the anvil. It is the next catalog.

Source: jurist.org, Joel Zivot, September 18, 2026. 

Joel Zivot is professor of anesthesiology and surgery at Emory University School of Medicine and adjunct professor at Emory Law. He has been retained as a medical expert by counsel for prisoners in capital post-conviction litigation, including matters currently pending, and has examined lethal injection protocols in nine states and for the federal government. The views expressed are his own.

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde

Death Penalty News For a World without the Death Penalty