Frost allowed the records to be reviewed, but on Friday he ruled there wasn't enough evidence given that the allergy could in fact impact the execution. Frost also said in his ruling that Durr's legal team waited too long to file this appeal, and relied too heavily on speculation for the appeal.
"Durr presents this court with an unproven allergy that might have an unknown effect on his execution and asks for time to fill in details that may or may not rise to the level of demonstrating a likelihood of success," Frost wrote. "Speculation is not evidence, however."
The state hired their own expert to review the appeal, who found there was no evidence to say that Durr wouldn't already be unconscious from the anesthesia before any allergy would set in. Mark Dershwitz, a University of Massachusetts professor and physician, told the state in an e-mail submitted as part of the state's filing on the appeal that the worst type of allergic reaction to anesthesia would result in death from low blood pressure and impaired breathing.
"Such effects are irrelevant in the context of an execution because they would occur after the inmate loses consciousness and because the intent is to bring about a rapid death," Dershwitz wrote.
According to Frost's ruling, Durr had dental surgery in 2004, and surgery for a hernia in 2007 and Frost wrote he could have known about his allergy as early as 2004.
Durr was allegedly given hydromorphone in 2004 and 2007 following surgery with no ill effects. Hydromorphone is used in Ohio's backup execution method.
The appeal on the grounds of an allergy has been cited in reports as the first of its kind. The only appeal similar was convicted killer Richard Cooey's unsuccessful argument in 2008 that his obesity caused poor vein access.
"It's a desperate twist on the 'cruel and unusual punishment' argument inmates have concocted to contest lethal injection," Miday said. "Too allergic to die won't work any better than Richard Cooey's 'too fat to die.'"
Witnessing Durr's execution this morning was McGarry, Durr's spiritual advisor Rev. Georgina Thornton, and Matthew Princehorn, a friend of Durr's according to Walburn.
Also there to witness the exection was Norma Godsey, Angel Vincent's mother, Wesley Brewer, her uncle, and Corennia Hatfield, her aunt, Walburn said.
According to Walburn, Durr did not request a special last meal and had spent the day yesterday not eating or drinking, observing what he called a religious fast.
"He didn't request a special meal at all," Walburn said. "The staff said he was very quiet, very easy to work with."
McGarry could not be reached for comment.