Full opinion text
KETHLEDGE, J., delivered the opinion of the court in which BATCHELDER, GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, and THAPAR, JJ., joined, and WHITE, J., joined in the analysis of judicial estoppel. MOORE, J. (pp. 892-909), delivered a separate dissenting opinion in which COLE, C.J. and CLAY, STRANCH, and DONALD, JJ., joined, and WHITE, J., joined in all except part II.C. regarding judicial estoppel. STRANCH, J. (pp. 909-11), delivered a separate concurrence to Judge Moore’s dissent. OPINION KETHLEDGE, Circuit Judge. Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed. See State v. Phillips, 74 Ohio St.3d 72, 656 N.E.2d 643, 650-52 (1995). Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head. Two nights later, Otte pushed his way into a woman’s home and did the same things to her. After each murder Otte went out partying. See State v. Otte, 74 Ohio St.3d 555, 660 N.E.2d 711, 715-16 (1996). Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back. His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby. See State v. Tibbetts, 92 Ohio St.3d 146, 749 N.E.2d 226, 237-39 (2001). Phillips, Otte, and Tibbetts now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment. In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, — U.S. -, 135 S.Ct. 2726, 2732, 192 L.Ed.2d 761 (2015) (internal quotation marks omitted). The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court upheld in Glossip. Every other court of appeals to consider that procedure has likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical challenge in a procedural posture identical to the one here. See McGehee v. Hutchinson, 854 F.3d 488, 492 (8th Cir. 2017) (en bane) (per curiam), cert. denied, — U.S. -, 137 S.Ct. 1275, 197 L.Ed.2d 746 (2017); Glossip, 135 S.Ct. at 2739-40 (collecting cases); Brooks v. Warden, 810 F.3d 812, 818-22 (11th Cir. 2016); cf. Jordan v. Fisher, 823 F.3d 805, 811-12 (5th Cir. 2016). Yet here the district court thought the same procedure is likely invalid. We respectfully disagree and reverse the court’s grant of a preliminary injunction. I. The litigation that produced this appeal began in 2004, when death-row inmates challenged Ohio’s then-existing three-drug protocol under 42 U.S.C. § 1983. That protocol called for the injection of sodium thiopental (which anesthetizes the prisoner) followed by pancuronium bromide (which paralyzes the prisoner’s muscles) and finally p'otassium chloride (which stops the prisoner’s heart). By 2008, 30 of the 36 states with the death penalty had adopted that three-drug protocol. See Baze v. Rees, 553 U.S. 35, 42-44, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). Yet the Ohio inmates argued that the protocol created an unacceptable risk that, if the sodium thiopental were improperly administered, inmates would feel the painful effects of the second and third drugs. In 2008, the Supreme Court rejected that argument and upheld Kentucky’s nearly identical three-drug protocol. See id. at 41, 128 S.Ct. 1520. Nevertheless, the next year, Ohio announced that it was switching to the same one-drug protocol favored by the losing plaintiffs in Baze: a massive, lethal dose of either sodium thiopental or another barbiturate, pentobarbital. From 2010 to 2013, Ohio executed 20 inmates using those barbiturates. Meanwhile, opponents of the death penalty successfully pressured the pharmaceutical companies who make the drugs to stop selling them to states. See Glossip, 135 S.Ct. at 2733-35. Ohio’s supplies soon ran out, as did other states’. See id.; R. 941 at 31942-44. The shortage led some states with three-drug protocols to turn to midazolam, a sedative in the same family of drugs as Valium. See Glossip, 135 S.Ct. at 2733-34. In 2014, Oklahoma adopted a protocol that called for the administration of 500 milligrams of midazolam—about 100 times the usual therapeutic dose—followed by a paralytic agent (pancuronium bromide, roeu-ronium bromide, or vecuronium bromide) and potassium chloride. Death-row inmates filed a § 1983 action alleging that Oklahoma’s protocol violated the Eighth Amendment. AlS relief, the inmates sought a stay, which the district court denied. The Supreme Court affirmed the denial for two “independent reasons”: that the district court “did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution”; and that Oklahoma was unable to acquire either pentobarbital or sodium thiopental. Id. at 2731, 2738-39. In October 2016, Ohio adopted a lethal-injection protocol using the same three drugs that Oklahoma uses. Like the Oklahoma protocol, the Ohio protocol contains several procedural safeguards to ensure that executions are carried out humanely, including guidelines for identifying viable IV sites, detailed requirements for training execution team members, and a “consciousness cheek” after the 500-milligram injection of midazolam. If the prisoner is found to be conscious, a qualified drug administrator can inject another 500 milligrams of midazolam. After confirming that the prisoner is unconscious, the team can then administer the second and third drugs. See R. 667-1 at 19828-29. Ohio planned to use this protocol to execute Phillips, Otte, and Tibbetts during the first four months of this year. The three inmates then filed complaints and moved for a preliminary injunction, claiming among other things that Ohio’s three-drug protocol violates the Eighth Amendment’s ban on “cruel and unusual punishments.” The plaintiffs’ theory here is the same one the Court rejected in Glossip: that the first drug—a massive dose of midazolam—will not prevent them feeling severe pain after injection of the second and third drugs. After an evidentiary hearing, the district court found that “use of midazolam as the first drug” in Ohio’s three-drug protocol would create a “substantial risk of serious harm” under Baze and Glossip. The court separately held that Ohio was estopped from using the paralytic and heart-stopping drugs because of Ohio’s putative representations when it switched from its original three-drug protocol to the one-drug protocol in 2009. Thus, the court held that the plaintiffs had demonstrated a likelihood of success on their claims, and stayed the plaintiffs’ executions. This appeal followed. II. A. The plaintiffs first argue that Ohio’s three-drug protocol violates their Eighth Amendment right to be free from cruel and unusual punishment. As to that claim, we begin with two areas of common ground. First, we agree with the plaintiffs and the district court that the protocol’s second and third drugs—the paralytic and potassium chloride, which stops the inmate’s heart—would cause severe pain to a person who is fully conscious. (Hence the need for the first drug—the 500-milligram dose of midazolam.) Second, we reject the State’s argument that the Supreme Court’s holding in Glossip categorically bars the plaintiffs’ claim here. The Court’s holding—that the district court there “did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution[,]” 135 S.Ct. at 2739—is couched expressly in terms of a standard of review that cuts the other way here. But neither, as the plaintiffs suggest, is Glossip irrelevant here. Quite the contrary: the Court’s opinion contains plenty of reasoning that was not confined to the record there—and which therefore binds us just as much as the reasoning in any other opinion of the Supreme Court. 1. Yet here the district court’s opinion was seriously flawed nonetheless. To begin with, that opinion did not apply the relevant legal standard, which by now the Supreme Court and our court have recited a total of four times. Specifically, to challenge successfully a State’s chosen method of execution, the plaintiffs must “establish that the method presents a risk that is sure or very likely to cause” serious pain and “needless suffering[.]” Glossip, 135 S.Ct. at 2737 (emphasis in original) (internal quotations marks omitted); see also Baze, 553 U.S. at 50, 128 S.Ct. 1520 (same); Cooey v. Strickland (Cooey II), 604 F.3d 939, 944 (6th Cir. 2010) (same); Cooey v. Strickland (Cooey I), 589 F.3d 210, 220 (6th Cir. 2009) (same). Instead, the district court addressed only whether Ohio’s procedure presents a “substantial risk of serious harm,” Baze, 553 U.S. at 50, 128 S.Ct. 1520 (internal quotation marks omitted). That standard is correct so far as it goes; but it elides the more rigorous showing—that the method of execution is sure or very likely to cause serious pain— that the Supreme Court and our court have repeatedly said is necessary to satisfy the “substantial risk” standard in the particular context present here. Accord McGehee, 854 F.3d at 492. Nor, respectfully, did the district court offer much reasoning in support of its decision. (To some extent that omission is understandable, given the tight timelines applicable here.) The bulk of the court’s opinion merely summarized the expert testimony on both sides. The relevant question, to reiterate, is whether the plaintiffs met their “heavy burden,” Baze, 553 U.S. at 53, 128 S.Ct. 1520, to show that an inmate who receives a 500-milligram dose of midazolam is “sure or very likely” to be conscious enough to experience serious pain from the second and third drugs in the protocol. Glossip, 135 S.Ct. at 2737. As to that question the experts- offered diametrically opposed conclusions: the plaintiffs’ experts argued that serious pain was “highly likely” or a “virtual certainty,” while Ohio’s experts testified that the risk was “very, very low” or “speculative.” Compare R. 923 at 30802-03 and R. 844-1 at 24944 with R. 924 at 31063-64 and R. 852-2 at 25831-32. Yet the district court offered virtually no reason for its decision to adopt the conclusions of the plaintiffs’ experts wholesale. The court did say, “[wjithout knowing precisely why,” that inmates who are “administered midazo-lam” (including doses as low as ten milligrams—one fiftieth of the dosage at issue here) “take longer to die and exhibit different bodily behaviors in the process.” R. 948 at 32227. The court also noted that “there was little support in the record for the idea that midazolam would be used alone” (again, at doses that are a tiny fraction of the dosage at issue here) “for surgeries other than those performed on an outpatient basis.” Id. at 32228. The latter observation has little relevance in light of a passage from Glossip that does bind us here: “the fact that a low dose of midazolam is not the best drug for maintaining unconsciousness during surgery says little about whether a 500-milligram dose of midazolam is constitutionally adequate for purposes of conducting an execution.” 135 S.Ct. at 2742 (emphasis in original). And taken even on their own terms, neither of the district court’s observations provides much support for the conclusion that a 500-milligram dose of midazolam is very likely to leave an inmate conscious enough to feel serious pain. The court also drew what it called “reasonable inferences” from the abandonment of midazolam-based protocols by three states. R. 948 at 32228. First, the district court noted that, in 2014, Ohio abandoned the midazolam-opioid protocol that it used to execute Dennis McGuire. Id. But McGuire’s dose of midazolam was only 10 milligrams, so again his execution says little about the effectiveness of a 500-milli-gram dose. Second, the district court found that Florida, “despite having conducted many executions using midazolam, abandoned the drug while this case was in hearing.” Id. But the court did not explain why Florida changed its protocol or why that decision helps the plaintiffs here. And meanwhile, in Glossip, the Supreme Court observed that Florida had used midazolam in 11 executions, apparently “without any significant problems.” 135 S.Ct. at 2734, 2746. Third, the district court noted that Arizona had “abandoned midazolam shortly before [the hearing below] as a result of settling litigation over its use.” R. 948 at 32228. But Arizona’s settlement agreement says nothing about why the State abandoned midazolam, other than that the State had run out of it. See R. 976-2 at 36214. None of these states’ actions, therefore, provide reason to infer that 500 milligrams of midazolam is sure or very likely to leave an inmate conscious enough to feel serious pain. Otherwise, the district court merely observed that “there are not now and never will be clinical studies of the effect of injecting 500 mg of midazolam into a person[,]” and that “we certainly cannot ask the executed whether they experienced pain after the injection of midazolam[J” R. 948 at 32227-28. Those observations are obviously correct, but the district court’s reliance on them effectively shifted the burden of proof to the State. Fairly or not, the applicable legal standard requires the plaintiffs to prove their allegations to a high level of certainty; yet the district court based its decision, at best, on uncertainty. 2. The district court’s findings thus provide little support for its conclusion that Ohio’s three-drug protocol creates an unconstitutional risk of pain. Since we can affirm the district court’s decision on any ground supported by the record, however, we must consider whether the plaintiffs met their burden for reasons the court did not articulate. The plaintiffs’ evidence as to risk of pain fell into two main categories: testimony about midazolam’s effects, and testimony about executions carried out with midazolam. We address each in turn. Each side offered testimony from two experts as to midazolam’s effects. The plaintiffs offered testimony from Dr. Sergio Bergese, M.D., an anesthesiologist, and Dr. Craig Stevens, Ph.D., a pharmacologist. The State offered testimony from Dr. Joseph Antognini, M.D., an anesthesiologist, and Dr. Daniel Buffington, Ph.D., a pharmacologist. The experts generally agreed that mi-dazolam ultimately has a “ceiling” above which an increase in dosage will not have any greater anesthetic effect. (On that point Dr. Buffington was the only dissenter.) Dr. Stevens attempted to estimate the ceiling using two different methods. One method, based on extrapolations from pe-tri-dish experiments, suggested that the ceiling effect occurs at 228 milligrams. R. 923 at 30800. Another method, based on extrapolations from clinical studies, yielded an estimate of 25 milligrams. R. 836-1 at 24827. That Dr. Stevens’s estimates vary by a factor of nine, however, underscores that they are highly speculative. Moreover, even Dr. Stevens’s estimates suggest that any ceiling effect arrives only at doses five to 45 times greater than the usual therapeutic dose. And in any event the relevant question is not whether the ceiling effect arrives at the equivalent of five doses or 45, but whether, once it arrives, an inmate is sure or very likely to experience serious pain from the second and third drugs. See Glossip, 135 S.Ct. at 2743. As to that point, Dr. Stevens testified that midazolam cannot produce “general anesthesia,” the level of unconsciousness appropriate for major surgeries. Studies indicate that midazolam—at doses in the therapeutic range—produces “deep sedation,” a level of brain depression just short of general anesthesia. But none of those studies involved the massive doses at issue here. See id. at 2742 (“The effect of a small dose of midazolam has minimal probative value about the effect of a 500-milligram dose”). Meanwhile, the experts for both sides agreed that midazolam is sometimes used alone for intubation, a medical procedure in which a tube is inserted into a person’s windpipe. Dr. Antognini, one of Ohio’s experts, testified that intubation is “incredibly stimulating.” R. 924 at 31052. Dr. Bergese likewise acknowledged that intubation is “very reactive,” meaning that “people react to [it] quite a bit.” R. 923 at 30900. True, Dr. Bergese asserted in his expert report that the protocol’s second and third drugs are more painful than intubation. But Dr. Bergese did not cite any medical evidence to support that assertion. And Dr. Antognini did cite studies showing that injection of the paralytic drug has no effect on a sedated person’s level of consciousness as measured by a brain scan, even when the person appears to flinch in response. R. 924 at 31066. Dr. Antognini further testified that midazolam would reduce or remove any sensation of suffocation (commonly referred to as “air hunger”) caused by the paralytic. See id. at 31072, 31088-89. Thus, even Dr. Bergese—the plaintiffs’ principal expert as to whether Ohio’s execution protocol would cause inmates to experience severe pain—admitted that the science on this issue “could go either way.” R. 923 at 30844, 30909. What tipped the balance for him, rather, was “the eyewitness reports” from laymen who attended executions involving midazolam. Id. at 30909; see also id. at 30870. But that data came with a raft of problems of its own. First, the sample size was small: in his expert report, Dr. Bergese discussed only nine midazolam-based executions. See R. 844-1 at 24972-80. Second, most of those accounts came from witnesses who, according to the district court, were likely to be “highly biased”-—such as relatives of executed inmates, capital-defense attorneys, and even the inmates’ own lawyers. R. 923 at 30869. And none of these witnesses had any medical training. See, e.g., R. 922 at 30644, 30713. Thus, as Dr. Bergese himself admitted, “the quality of the data is not there.” R. 923 at 30910; see also id. at 30869. The reliability of Dr. Bergese’s opinion does not improve when one considers the evidence of the nine executions themselves. Two of them—the execution of Clayton Lockett in Oklahoma and the execution of Joseph Wood in Arizona—are ones that the Supreme Court has specifically said have “little probative value” because they “did not involve the protocol at issue here.” Glossip, 135 S.Ct. at 2746. And notwithstanding the plaintiffs’ assertion to the contrary, we are not free to disregard that reasoning simply because the plaintiffs’ experts have to some extent testified to the contrary here. Moreover, Lockett’s IV line was not properly connected. See R. 948 at 32147; Glossip, 135 S.Ct. at 2734, 2746. A third execution—the McGuire execution in Ohio—involved a dose of 10 milligrams of midazolam rather than 500. And the district court in McGuire’s case found that McGuire had a condition that “might make him susceptible to an airway obstruction.” R. 948 at 32191 n.26. Hence that execution too has “little probative value[.]” Glossip, 135 S.Ct. at 2746. That leaves six executions that were conducted using the same protocol at issue here. But five of those involved reports only of eyes opening, “head movements,” and “foot movements” after the injection of midazolam. R. 844-1 at 24974-80. And the plaintiffs concede that “evidence of slight movements might, in a vacuum, not be compelling evidence of consciousness.” Ap-pellee Br. 54. Dr. Bergese likewise testified that minor movements are possible even under general anesthesia. R. 923 at 30834, 30850. Moreover, even in executions involving barbiturates, inmates may have “convulsions” without a paralytic. Workman v. Bredesen, 486 F.3d 896, 909 (6th Cir. 2007). We upheld the use of a paralytic in executions for that very reason, finding legitimate a state’s concern that “lethal injection without [the paralytic] would typically result in involuntary movement,” which “might be misinterpreted as ... an indication of consciousness.” Id. That leaves only the execution of Ronald Smith in Alabama. The district court heard testimony about that execution from Spencer Hahn, a federal defender in the Alabama Capital Habeas Unit. According to Hahn, at some point after the injection of midazolam, Smith began coughing, clenching and unclenching his fists, flailing his arms, and moving his lips. R. 922 at 30619. Both sides’ experts agreed, however, that people’s bodies can move at reduced levels of consciousness. Dr. Antognini explained that surgical patients under anesthesia can respond to noxious stimuli in complex ways, sometimes by thrashing about violently. R. 852-1 at 25792; R. 924 at 31037, 31044, 31063-64. That is why patients’ arms are strapped down and their eyes taped shut. R. 924 at 31044. Indeed, as the “Lazarus phenomenon” illustrates, even brain-dead persons can move their limbs and seemingly respond to stimuli. See id. at 31036-37. Dr. Stevens agreed that “reflexive withdrawal from a noxious stimulus is not considered a purposeful movement.” R. 948 at 32196. Similarly, Dr. Bergese testified that “movement is ... in the spinal cord,” so “patients are going to move even when the consciousness is depressed.” R. 923 at 30834. And a reporter for the Columbus Dispatch, who witnessed 19 executions using barbiturate-based protocols, said that he had sometimes seen “clenching and unclenching of the hands.” R. 922 at 30708. As for coughing or gasping, neither demonstrates that the inmate is feeling air hunger. Dr. Antognini testified that mi-dazolam, like other anesthetics, can remove the sensation of air hunger by depressing the drive to breathe. R. 924 at 31071-73, 31088-93. Even Dr. Bergese admitted that an inmate who gasps repeatedly during an execution might not be conscious, and that involuntary respirations associated with the process of dying are hard to distinguish from purposeful attempts to breathe. See R. 923 at 30860-61. Dr. Antognini also testified that patients can cough vigorously while under anesthesia for surgery, though this behavior may signal that the patient is shifting to a lighter level of anesthesia. R. 924 at 31037, 31043, 31157, 31178. All that said, Hahn’s description of the Smith execution is the plaintiffs’ best evidence in support of their claim. But that evidence is far from compelling. Some people react differently to drugs than other people do, see R. 923 at 30896; and the amount of movement reported in Smith’s execution appears to be the exception, not the rule, for executions with the three-drug protocol. More fundamentally, as Dr. Bergese himself explained, consciousness falls on a “spectrum.” Id. at 30830. Yet he appeared to treat consciousness as binary when he opined that an inmate sedated with 500 milligrams of midazolam would feel pain the same way a conscious person would, simply because the inmate clenches his fists or coughs. In sum, we will grant that the plaintiffs have shown some risk that Ohio’s execution protocol may cause some degree of pain, at least in some people. But some risk of pain “is inherent in any method of execution—no matter how humane[.]” Baze, 553 U.S. at 47, 128 S.Ct. 1520. And the Constitution does not guarantee “a pain-free execution[.]” Cooey I, 589 F.3d at 220. Different people may have different moral intuitions as to whether—taking into account all the relevant circumstances— the potential risk of pain here is acceptable. But the relevant legal standard, as it comes to us, requires the plaintiffs to show that Ohio’s protocol is “sure or very likely” to cause serious pain. Glossip, 135 S.Ct. at 2737, 2745. The district court did not meaningfully apply that standard here. And the plaintiffs have fallen well short of meeting it. B. That shortcoming by itself is sufficient to defeat the plaintiffs’ claim under Glossip. But the district court also erred in its analysis of Glossip’s second prong— which requires the plaintiffs to prove that an alternative method of execution is “available,” “feasible,” and can be “readily implemented,” among other things. Id. at 2737. The court found this requirement met as to one of the plaintiffs’ proposed alternatives, namely a one-drug, barbiturate-only method using either sodium thio-pental or pentobarbital. The court acknowledged, however, that Ohio no longer has any supplies of these drugs, that “Ohio’s efforts to obtain the drug from other States and from non-State sources have not met with success[,]” and that Ohio is “not likely” to overcome these obstacles anytime soon. R. 948 at 32229. Yet the court concluded that barbiturates are “available” to Ohio because “there remains the possibility” that Ohio can obtain the active ingredient of pentobarbital and have it made into injectable form by a compounding pharmacy. Id. The district court was seriously mistaken as to what “available” and “readily implemented” mean. (For that reason the district court’s error is legal, and thus subject to de novo review. See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., — U.S. -, 134 S.Ct. 1744, 1748, 188 L.Ed.2d 829 (2014).) To obtain pentobarbi-tal or its active ingredient, Ohio would need to receive an import license from the Drug Enforcement Administration. R. 948 at 32229. Ohio’s application for that license has been pending, without apparent action by the DEA, for more than four months. See R. 966-13 at 34506-10; R. 966-14 at 34512-17. Ohio does not know whether the DEA will approve its application, or even when that decision might be made. R. 948 at 32229. And even if that application is approved, Ohio might not be able to locate a willing supplier or manufacturer, for reasons the Supreme Court explained at some length in Glossip. See 135 S.Ct. at 2733. As the district court acknowledged, even the plaintiffs’ expert, Dr. Stevens, “was unable to identify any manufacturers or suppliers of thiopental and/or pentobarbital who were willing to sell those drugs, or even those drugs’ active'pharmaceutical ingredients, to Ohio for the purposes of conducting lethal injection executions.” R. 948 at 32163. The plaintiffs, for their part, rely on Dr. Buffington’s testimony about an affidavit he filed in a prior Alabama case, in which he stated that he believed “there are pharmacists in the United States that are able to compound pentobarbital for use in lethal injections because other states have been reported to have obtained compounded pentobarbital for use in executions.” R. 925 at 31440-41. But that is quite different from saying that any given state can actually locate those pharmacies and readily obtain the drugs. And Dr. Buffington testified that he personally contacted 15 pharmacies to that end without success. Id. Indeed, in the very case in which Dr. Buffington submitted his affidavit, the Eleventh Circuit rejected the claim that pentobarbital was available to Alabama. Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1296 (11th Cir. 2016), cert. denied sub nom. Arthur v. Dunn, — U.S. -, 137 S.Ct. 725, 197 L.Ed.2d 225 (2017). Meanwhile, Ohio itself contacted the departments of correction in Texas, Missouri, Georgia, Virginia, Alabama, Arizona, and Florida to ask whether they would be willing to share their supplies of pentobarbital. All refused. See R. 905-1 at 30313-14. Granted, for the one-drug protocol to be “available” and “readily implemented,” Ohio need not already have the drugs on hand. But for that standard to have practical meaning, the State should be able to obtain the drugs with ordinary transactional effort. Plainly it cannot. The reality is that the barbiturate-only method is no more available to Ohio than it was to Oklahoma two years ago in Glossip, for precisely the same reasons. C. That leaves the district court’s determination that Ohio is judicially estopped from returning to a three-drug protocol. The plaintiffs ask us to review that determination for an abuse of discretion, citing the Supreme Court’s reference to judicial es-toppel as an “equitable doctrine” in New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). But we have twice rejected that argument and “continue[d] to apply de novo review.” Mirando v. U.S. Dep’t of Treasury, 766 F.3d 540, 545 n.1 (6th Cir. 2014); Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, LLP, 546 F.3d 752, 757 (6th Cir. 2008). And here, as in a recent Second Circuit case, “the choice between the two standards is immaterial, for under either,” the doctrine of judicial estoppel “is inapplicable[.]” Chevron Corp. v. Donziger, 833 F.3d 74, 128 (2d Cir. 2016). The doctrine’s purpose is to prevent a party “from abusing the judicial process through cynical gamesmanship” by changing positions “to suit an exigency of the moment.” Mirando, 766 F.3d at 545. And when, as here, the doctrine is invoked against a state, it must be “construed narrowly.” See United States v. Owens, 54 F.3d 271, 275 (6th Cir. 1995). According to the plaintiffs, Ohio’s plan to use a three-drug protocol contradicts Ohio’s statements in 2009 that it was switching to a one-drug protocol and that “going forward, pancuronium bromide [the paralytic drug] no longer will be used as part of the lethal injection process.” R. 718-3 at 22390. Ohio also stated in a motion for summary judgment that a then-pending challenge to its prior three-drug protocol was moot—because Ohio was no longer using it. R. 966-2. The district court never granted Ohio’s motion, but our court soon held that any challenge to Ohio’s old three-drug protocol (using sodium thiopental) was “now moot.” Cooey v. Strickland, 588 F.3d 921, 923 (6th Cir. 2009) (per curiam). Thus, the plaintiffs argue, Ohio prevailed by “permanently” renouncing the paralytic and potassium chloride—a promise on which Ohio has putatively now reneged. The argument is meritless. As an initial matter, the plaintiffs nowhere explain how they have been harmed in the current litigation, or how the State has been helped, by the fact that the parties in the prior litigation did not have a trial about-the sodium-thiopental three-drug protocol in 2009. To the contrary, by all appearances, the absence of that trial has made zero difference in this litigation. The effects of the two drugs that the old and new protocol share (namely, the paralytic and the heart-stopping drug) are undisputed. What is disputed, rather, is the effects of midazolam; and there is no reason to think that a trial about sodium thiopental would have affected that issue one way or the other. More to the point, Ohio represented in 2009 that it was switching to a one-drug protocol in the context of a particular case involving particular named plaintiffs, which apparently do not include the named plaintiffs here. Ohio then proceeded to execute 20 death-row inmates with the new one-drug protocol, which should be proof enough of the State’s truthfulness in making those representations. Ohio did argue in support of its summary-judgment motion (which the State itself later withdrew) that “[tjhere is absolutely no reason to believe that defendants will reinstate-the previous ‘three-drug protocol’ if the plaintiffs’ suits were dismissed.” R. 966-2 at 34329. But that was before death-penalty opponents successfully prevented Ohio (along with other states) from obtaining the drugs necessary to use the one-drug protocol. See Glossip, 135 S.Ct. at 2733-34. Ohio then ceased executions altogether for about three years, before switching to the three-drug protocol that the Supreme Court had recently upheld in Glossip. A state’s change in policy in response to unforeseen circumstances like these is hardly the kind of inconsistency that warrants estoppel. See New Hampshire, 532 U.S. at 749-50, 121 S.Ct. 1808; Owens, 54 F.3d at 275. Judicial estoppel prohibits “playing fast and loose with the courts”—that is, “abusing the judicial process through cynical gamesmanship” by changing positions “to suit an exigency of the moment.” New Hampshire, 532 U.S. at 749-50, 121 S.Ct. 1808; Mirando, 766 F.3d at 545. Suffice it to say that, if any gamesmanship led us to this pass, it was not gamesmanship by the State. The plaintiffs have failed to demonstrate a likelihood of success on their claims. That failure is “dispositive.” Cooey II, 604 F.3d at 946. We therefore vacate the district court’s January 26, 2017 preliminary injunction.
DISSENT KAREN NELSON MOORE, Circuit Judge, dissenting. There is a narrow question before this court: Should Gary Otte, Ronald Phillips, and Raymond Tibbetts have a trial on their claim that Ohio’s execution protocol is a cruel and unusual punishment, or should Ohio execute them without such a trial? The majority has concluded that there is no need for a trial on the merits of Plaintiffs’ constitutional claim. I disagree. There is no dispute that the second and third drugs in Ohio’s execution protocol cause immense pain. There is significant evidence that the first drug, midazolam, cannot prevent someone from feeling that pain. After a five-day hearing on Plaintiffs’ motion for a preliminary injunction, the district court determined that there should be a full trial on the merits of Plaintiffs’ claim that Ohio’s use of midazolam as the first drug in a three-drug execution protocol creates a constitutionally unacceptable risk of pain. Despite the deferential standard of review that this court should apply, the majority casts aside the district court’s determination that Plaintiffs should have a trial before the state executes them. The majority also determines that despite Defendants’ unequivocal sworn testimony that they would no longer use pancuroni-um bromide or potassium chloride in executions, judicial estoppel does not prevent their renewed attempt to use those drugs. For the reasons discussed below, I would hold that Plaintiffs should have a trial on their Eighth Amendment and judicial-es-toppel claims, and I respectfully dissent. I. BACKGROUND Because a key issue in this case is whether the district court made the requisite findings of fact to support a preliminary injunction, I begin by discussing the evidence presented to the district court and the district court’s findings of fact based on that evidence. Over the course of the five-day hearing, the district court heard testimony from four experts: Dr. Craig Stevens, PhD., a Professor of Pharmacology at Oklahoma State University who testified as an expert witness for Plaintiffs; Dr. Sergio Bergese, M.D., a Professor of Anesthesiology and Neurological Surgery and practicing anesthesiologist at The Ohio State University Wexner Medical Center who testified as an expert witness for Plaintiffs; Dr. Joseph Antogni-ni, M.D., a retired anesthesiologist and faculty member at University of California, Davis who testified as an expert witness for Defendants; and Dr. Daniel Buffington, Pharm.D, a pharmacologist in private practice who testified as an expert witness for Defendants. The district court also heard testimony from: Edwin Voorhies, the Managing Director of Operations for the Ohio Department of Rehabilitation and Correction; Gary Mohr, the Director of the Ohio Department of Rehabilitation and Correction; and two Ohio Department of Rehabilitation and Correction Execution Team members (who testified anonymously). A reporter, Alan Johnson, testified as an eyewitness to the execution of Dennis McGuire by the State of Ohio. Five legal professionals testified as eyewitnesses to out-of-state executions in which midazolam was part of a multi-drug execution protocol. In his 119-page Decision and Order Granting in Part and Denying in Part Plaintiffs’ Motions for Preliminary Injunction, the magistrate judge discussed this testimony and set out his findings of fact. First, the district court discussed the testimony of three eyewitnesses to Ohio’s execution of Dennis McGuire: ODRC Director Gary Mohr, Execution Team Member No. 10, and reporter Alan Johnson. All three testified that after McGuire appeared, to be unconscious, McGuire’s stomach began repeatedly to knot up and then relax, and McGuire began to snort. Decision & Order at 20-21. According to Johnson, “McGuire began coughing, gasping, choking in a way that I had not seen before at any execution.” Id. at 21. Johnson also testified that McGuire gasped “in a way that almost seemed to be choking,” clenched and unclenched his hands, and “attempted to kind of lift up off the table.” Id. Johnson testified that McGuire gasped fifteen or sixteen times, and that the gasping or choking went on for twelve to thirteen minutes. Id. Johnson has witnessed twenty Ohio executions, and had never previously seen anything like the intensity or duration of McGuire’s reaction. Id. Mohr has overseen eleven executions, and testified that he had not previously seen a reaction like McGuire’s. Id. at 20. Next, the district court discussed the testimony of five eyewitnesses to midazo-lam-involved executions that took place outside of Ohio. Two of these out-of-state executions occurred after the Supreme Court’s Glossip decision. Spencer Hahn, an Assistant Federal Defender in the Capital Habeas Unit in the Middle District of Alabama, witnessed the December 8, 2016 execution of Ronald Smith by the State of Alabama. Like Ohio’s current execution protocol, the protocol used to execute Smith called for 500 milligrams of midazo-lam. It also called for a 600-milligram dose of a paralytic drug, and 240 milliequiva-lents of potassium chloride. Decision & Order at 22. Hahn testified that “[tjhere were two periods in which [Smith] appeared to rest somewhat briefly” but then he began “coughing, heaving, flailing, or attempting to flail arms, clenching and un-clenching of fists, movement of lips ... and then doing this asthmatic cough, barking-type cough.” Id. at 22. Terry Alang, an attorney employed as an investigator in the Capital Habeas Unit in the Middle District of Alabama, witnessed the January 20, 2016 execution of Christopher Brooks by the State of Alabama. Alabama used the same execution protocol that it used in the Smith execution, most notably 500 milligrams of midazolam. According to Alang’s testimony, after the execution team members administered midazolam, Brooks’s chest began heaving. Id. at 24. The district court also discussed testimony about three executions that occurred before the Supreme Court’s Glossip decision. Id. at 22. First, Sonya Rudenstine, a Florida lawyer who specializes in capital post-conviction work, witnessed the execution of Paul Howell by the State of Florida. Like Ohio’s current execution protocol, the protocol used to execute Howell called for 500 milligrams of midazolam in two separate injections of 250 milligrams each. Id. at 23. The protocol then called for 200 milligrams of vecuronium bromide in two 100-milligram injections, followed by 240 milliequivalents of potassium chloride. Id. Rudenstine observed Howell open his eyes after the consciousness check. Id. Second, Dale Baich, a supervisor in the Federal Defender Capital Habeas Unit in Arizona, witnessed the execution of Joseph Wood by the State of Arizona. Id. The protocol used to execute Wood called for injection of a mixture of 50 milligrams of midazolam and 50 milligrams of hydromor-phone. Id. During Wood’s execution, the State injected this mixture fifteen separate times. Id. “Wood continued to gasp and try to breathe until his death ... almost two hours after the process began.” Id. In a settlement agreement entered on December 19, 2016, Arizona agreed to “never again use midazolam, or any other benzo-diazepine, as part of a drug protocol in a lethal injection execution.” R. 976-2 (Stipulated Settlement Agreement at 2) (Page ID #36214); see also id at 23. Third, Dean Sanderford, an Assistant Federal Defender in Colorado, witnessed the execution of Clayton Lockett by the State of Oklahoma. Decision & Order at 24. The protocol used to execute Lockett called for 100 milligrams of midazolam followed by a paralytic agent and potassium chloride. Id. According to Sanderford, three or four minutes after the administration of the paralytic, Lockett began writhing and attempted to speak. Id. The district court then discussed, at great length, the testimony of the four expert witnesses. Dr. Stevens discussed sedation and general anesthesia. He explained that there are different levels of sedation: minimal sedation (i.e., the sedation that would be appropriate for a root canal); moderate sedation; and deep sedation. General anesthesia is beyond the deepest level of sedation, and is the state appropriate for surgery. Only at the level of general anesthesia is someone unconscious. Dr. Stevens explained that midazo-lam can bring someone to the state of deep sedation, but not to general anesthesia or unconsciousness. Decision & Order at 78. Similarly, Dr. Bergese testified that he would never use midazolam alone as an anesthetic. He also testified that when mi-dazolam is used as an anesthetic, it is for relatively minor procedures, such as colo-noscopies, as opposed to more invasive surgeries. Id. at 47. To explain why midazolam cannot render someone unconscious, Dr. Stevens explained midazolam’s ceiling effect. Id. at 31-32. Midazolam acts on a receptor called GABAa (GABA is short for gamma-amino-butyric acid), and can decrease neural activity only when GABAa is present. Once there is no GABAa left for midazolam to act on, midazolam cannot decrease neural activity anymore and the drug reaches its maximum potency, or ceiling. At this point, administering more midazolam does not increase midazolam’s effect. Dr. Stevens explained that midazolam’s reliance on GABAa, and consequential ceiling effect, is a distinction between mi-dazolam and barbiturates like thiopental sodium. Id. at 31-32. Midazolam is a ben-zodiazepine, whereas thiopental sodium is a barbiturate. Although both benzodiaze-pines and barbiturates work on the central nervous system and can be used as sedatives, barbiturates can decrease neural activity without GABAa present. According to Dr. Stevens, because barbiturates do not depend on GABAa, they do not have a ceiling effect. Dr. Bergese agreed generally that midazolam has a maximum impact, but he emphasized that his main concern is that midazolam is simply the wrong drug to use. Id. at 87. In response to Dr. Stevens’s discussion of ceiling effects, Dr. Antognini testified that midazolam’s ceiling effect is not germane. In his view, a 500-milligram dose of midazolam is sufficient to render a person unconscious. Whatever ceiling effect mi-dazolam may have beyond the amount necessary to render someone unconscious is irrelevant. Decision & Order at 70. He also testified that data on midazolam’s ceiling effect is unclear. Id. at 71. Taking an entirely different tack, Dr. Buffington disputed that midazolam has a ceiling effect at all. Id. at 93. However, he also testified that when midazolam is used alone, it is usually in situations where general anesthesia is not required, such as resetting bones, vasectomies, or placement of tubes or implanted devices. Id. at 92. Dr. Antognini and Dr. Stevens disagreed strongly about whether midazolam possesses any analgesic (painkilling) properties. Dr. Antognini testified that midazo-lam does possess some analgesic properties, at least in massive doses. Dr. Stevens, by contrast, was adamant that midazolam does not treat pain. Id. at 75. Dr. Bergese agreed with Dr. Stevens. Id. at 47. Without addressing midazolam’s analgesic properties, Dr. Buffington said that mi-dazolam would sedate someone sufficiently to render them insensate to the pain caused by a paralytic and potassium chloride. Id. at 94. Dr. Antognini testified that the risk that someone would experience pain after receiving a 500-milligram dose of midazolam is “very, very low.” Id. at 66. Dr. Stevens, by contrast, concluded that “ ‘the use of midazolam as the first drug in a three-drug protocol is highly likely to cause intolerable pain and suffering,’ stemming from the administration of the second and third drugs.” Id. at 40. Again, Dr. Bergese agreed with Dr. Stevens. Id. at 47. The testimony of Dr. Stevens and Dr. Bergese that midazolam does not eliminate pain is unequivocal. II. DISCUSSION A. Legal Standards “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Glossip v. Gross, - U.S. -, 135 S.Ct. 2726, 2736, 192 L.Ed.2d 761 (2015). “The preliminary injunction posture of the present case thus requires petitioners to establish a likelihood that they can establish both that [Ohio’s] lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.” Id. at 2737. An appellate court must review a district court’s decision granting or denying a preliminary injunction for an abuse of discretion. Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 664, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004). “Under this standard, the court reviews the district court’s legal conclusions de novo and its factual findings for clear error.” Babler v. Futhey, 618 F.3d 514, 520 (6th Cir. 2010); see also Glossip, 135 S.Ct. at 2739. “[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). The clearly erroneous standard “plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently.” Id. In particular, “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Id. at 575, 105 S.Ct. 1504. Recently, the Supreme Court reiterated the deference owed to a district court’s findings of fact, even when other trial courts have made different findings. “The rule that we review a trial court’s factual findings for clear error contains no exception for findings that diverge from those made in another court. Whatever findings are under review receive the benefit of deference, without regard to whether a court in a separate suit has seen the matter differently.” Cooper v. Harris, — U.S. -, 137 S.Ct. 1455, 1468, 197 L.Ed.2d 837 (2017) (citing Fed. R. Civ. P. 52(a)(6); Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion)). The Supreme Court continued by explaining that an appellate court “must ask not which court ... had the better view of the facts, but simply whether the court below’s view is clearly wrong.” Id. “[T]he very premise of clear error review is that there are often ‘two permissible’—because two ‘plausible’—‘views of the evidence.’ Even assuming [another] court’s findings capture one such view, the District Court’s assessment may yet represent another. And the permissibility of the District Court’s account is the only question before [an appellate court].” Id. (quoting Anderson, 470 U.S. at 574, 105 S.Ct. 1504). Finally, the Supreme Court has also instructed appellate courts to err on the side of allowing trials in cases raising constitutional questions. “If the underlying constitutional question is close,” the Supreme Court instructs, an appellate court “should uphold the injunction and remand for trial on the merits.” Ashcroft v. Am. Civil Liberties Union, 542 U.S. at 664-65, 124 S.Ct. 2783. This last instruction is perhaps the most significant for this case. But the majority heeds neither the instruction to review district court findings of fact deferentially, nor the instruction to err on the side of allowing trials in cases raising constitutional questions. The majority has decided to forego a trial on the merits of Plaintiffs’ constitutional claims and to allow the State of Ohio to execute Plaintiffs without such a trial. More egregiously, the majority has decided to forego a trial even though the district court, which has the better view of the evidence, determined that Plaintiffs should have a trial because they are likely to succeed on the merits of their constitutional claim. B. Eighth Amendment Baze/Glossip Claim 1. Likelihood of success on the merits I would affirm the district court’s judgment that Plaintiffs were likely to succeed on the'merits of their Eighth Amendment Baze/Glossip claim, which the district court supported with factual findings that, first, Plaintiffs established that Ohio’s mi-dazolam three-drug protocol creates a substantial risk of severe pain and, second, Plaintiffs presented an available alternative method. a. Substantial risk of severe pain Under Glossip, to establish that a method of execution violates the Eighth Amendment, prisoners must first “establish that the method presents a risk that is ‘sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.’ To prevail on such a claim, ‘there must be a substantial risk of serious harm[.]’ ” Glossip, 135 S.Ct. at 2737 (quoting Baze v. Rees, 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion)) (emphasis in original). The majority is certainly correct that plaintiffs must meet a “heavy burden” to make the “rigorous showing” that a method of execution creates a substantial risk of serious harm. Maj. Op. at 886-87 (quoting Baze, 553 U.S. at 53, 128 S.Ct. 1520). The majority and I disagree about whether the determination that a method of execution creates a substantial risk of serious harm is a factual finding reviewed for clear error or a legal conclusion reviewed less deferentially. The majority characterizes the determination as application of a “legal standard” and reviews it without deference. Maj. Op. at 885-86. My view that this determination is a factual finding that must be reviewed for clear • error comes directly from the language of the Supreme Court. In Glossip, the Supreme Court said that the Oklahoma district court “did not commit clear error when it found that the prisoners faded to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.” Glossip, 135 S.Ct. at 2731. This statement is explicit that a district court’s determination as to whether midazolam entails a substantial risk of severe pain must be reviewed for clear error. In this case, the magistrate judge—relying on his “superior! ] ... position to make determinations of credibility” and “experience” in “the determination of fact”—evaluated evidence from scientific experts, eyewitnesses to executions, and ODRC employees discussing Ohio’s current execution protocol. Anderson, 470 U.S. at 574, 105 S.Ct. 1504. Based on this evidence, the district court found that Plaintiffs were likely to succeed on their claim that the use of midazolam as the first drug in a three-drug protocol creates a substantial risk of severe pain. Decision & Order at 104-05. The district court found “from both the expert opinions and the lay descriptions comparing executions with a barbiturate as the first drug and midazo-lam as the first drug that the drugs do not produce the same effects in those being executed.... [T]hose administered mi-dazolam ... take longer to die and exhibit different bodily behaviors in the process.” Id. at 104. Evaluating the evidence presented to it during the hearing, including the eyewitness testimony and the opposing viewpoints presented by the experts, the district court “conelude[d] that use of mi-dazolam as the first drug in Ohio’s present three-drug protocol will create ‘a substantial risk of serious harm.’ ” Id. at 105. For several reasons, the district court’s determination was not clearly erroneous. First of all, the district court did not base its opinion on uncertainty, as the majority asserts. Plaintiffs’ experts testified unequivocally that Ohio’s midazolam three-drug protocol is highly likely to cause intolerable pain. Id. at 40, 43, 47, 55. The district court was in the position to make credibility determinations about the competing experts’ testimony, and the district court’s discussion of the experts’ testimony indicates that it found Plaintiffs’ experts to be more credible than Defendants’. See Decision & Order at 103-05. For example, the district court recognized that Defendants’ experts did not agree with each other about whether mi-dazolam has a ceiling effect, and Dr. Buff-ington did not appear to agree with Dr. Antognini that midazolam has analgesic properties (only that it would sedate someone sufficiently to make them insensate to pain, which is distinct from actually eliminating pain). Id. at 71-75, 93-94. By contrast, Plaintiffs’ experts were in agreement that midazolam does not have analgesic properties, and, although he was less adamant, Dr. Bergese generally agreed with Dr. Stevens that midazolam has a ceiling effect. Id. 31, 87. The specific points of disagreement between Defendants’ experts support the district court’s determination that Plaintiffs’ experts were more convincing. It is also noteworthy that the district court in this case evaluated evidence that was not available to the Oklahoma district court in Glossip. The district court heard testimony from eyewitnesses to five executions. Two of those, the execution of Christopher Brooks and the execution of Ronald Smith, occurred after the Glossip decision. In addition to providing the district court with information about additional midazolam-involved executions, these recent executions also shed new light on earlier midazolam-involved executions. In Glossip, the Supreme Court noted that neither Lockett nor Wood received the dose of midazolam at issue in the case before it, and that there were problems with the Lockett execution that were not attributable to the drugs used (namely, “the execution team’s inability to obtain an IV access site”). Glossip, 135 S.Ct. at 2746. Taking into account these differences, the Supreme Court said that “[w]hen all of the circumstances are considered, the Lockett and Wood executions have little probative value for present purposes.” Id. This conclusion may have been reasonable given the circumstances at the time, but new circumstances entitle a district court to come to a different conclusion. The Brooks execution, and particularly the Smith execution, in which Smith coughed, flailed, and heaved for several minutes, cast the problems observed in the Lockett and Wood executions in a new light. Unlike Lockett and Wood, both Smith and Brooks were executed using 500 milligrams of midazolam followed by a paralytic drug and potassium chloride (like Ohio’s current protocol). Like Lockett and Wood, witnesses testified that Smith and Brooks moved and heaved during their executions. Witnesses’ testimony that Brooks was heaving and that Smith was heaving, coughing, and flailing could suggest that Lockett’s writhing and Wood’s gasping were attributable to midazolam’s inability to prevent the pain caused by paralytic drugs and potassium chloride, rather than to other circumstances. The district court made the specific finding that these eyewitnesses were credible, even though many “were from legal practices devoted to representing capital clients.” Id. at 24. The district court noted that “their testimony was carefully confined to observations rather than opinions,” in “contrast[ ] with some press characterizations of some of these executions as ‘botched,’ ‘horrendous,’ ‘barbaric,’ and so forth. These witnesses were carefully professional in not adding advocatory characterizations to their observations.” Id. at 24-25. The majority argues that the district court did not offer enough reasoning in support of its decision. Maj. Op. at 886-87. I agree that ideally the district court would have offered more reasoning in support of its findings. But it is clear that the district court’s specific findings were meant to be read in conjunction with its lengthy discussion of the testimony. And I do not agree that the district court’s 119-page opinion, which included a discussion of the testimony and specific findings of fact, did not provide sufficient reasoning to be entitled to the deference that we must give to district courts’ findings of fact. (The majority recognizes that the district court produced its opinion under tight timelines, but fails to acknowledge that these timelines were imposed by the State of Ohio.) In my view, the district court’s finding that “use of midazolam as the first drug in Ohio’s present three-drug protocol will create ‘a substantial risk of serious harm,’ ” Decision & Order at 105, was not clearly erroneous, and we are bound by this finding. b. Availability of an alternative To succeed on their Eighth Amendment claim, Plaintiffs must also show that there is “an alternative that is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’ ” Glossip, 135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 52, 128 S.Ct. 1520) (alteration in original). Glossip explicitly states that whether an alternative method of execution is available is a “factual finding” subject to the “clearly erroneous” standard of review. Glossip, 135 S.Ct. at 2738. Other than defining “availability” as a factual finding, the Supreme Court provides little guidance as to the definition of “availability.” As the district court observed, “In Baze and Glossip, the Supreme Court did not attempt to quantify how available the alternative method must be to qualify.” Decision & Order at 107. Plaintiffs proposed two alternative execution methods. For different reasons, each of these alternatives warrants a remand for a trial on the merits. As to the first alternative, a one-drug protocol using compounded pentobarbital, the district court found that by proposing compounded pentobarbital, “Plaintiffs have met their burden to identify a sufficiently available alternative method of execution to satisfy Baze and Glossip.” Decision & Order at 107. Ohio does not currently have pento-barbital on hand and it cannot purchase pentobarbital to use in executions directly from drug manufacturers. However, according to the district court, Ohio has taken key steps toward acquiring compounded pentobarbital, including passing secrecy statutes “to protect the anonymity of potential suppliers and compounders,” and applying for the import license necessary to purchase pentobarbital’s active ingredient. Id. This court resolved litigation over the secrecy statutes and entry of a protective order in Ohio’s favor. See In re: Ohio Execution Protocol Litig. (Fears v. Kasich), 845 F.3d 231, 240 (6th Cir. 2016); Phillips v. DeWine, 841 F.3d 405, 420 (6th Cir. 2016). These favorable resolutions facilitate the State’s access to compounded pentobarbital. The district court also noted that Dr. Buffington, who helped develop Ohio’s current execution protocol and who testified about the content of an affidavit he submitted in an Alabama case, “stated in his affidavit in that case that since other state's had been able t