Drug Manufacturer Says Nevada ​‘Surreptitiously’ Obtained Drug for Execution in Violation of State and Federal Law

For the second time in three years, the Nevada Department of Corrections (NDOC) and the state of Nevada are facing legal action from a pharmaceutical manufacturer after obtaining drugs for an execution in violation of the drug manufacturer’s policies.

Hikma Phamaceuticals, a maker of the anesthetic ketamine, sent a cease-and-desist letter to Nevada Attorney General Aaron Ford on June 24, 2021, threatening to sue the state for illegally obtaining ketamine for the execution of Zane Floyd, unless it returns the drugs. Floyd is currently scheduled for execution during the week of July 26.

“Hikma has taken proactive action to prevent the sale and distribution of its products to NDOC, and NDOC’s misuse of its products in the State of Nevada’s lethal injection protocol,” Hikma’s lawyer, Josh Reid, wrote in the letter. “Nonetheless, it appears that NDOC has ignored Hikma’s repeated demands and, in knowing violation of Hikma’s legal rights, express communications with NDOC and express policies and controls, NDOC surreptitiously obtained Hikma’s Ketamine for use in an execution.”

The Nevada Department of Corrections (NDOC) allegedly obtained 50 vials of ketamine, which it intends to use as the second drug in an untried three- or four-drug protocol. Reid wrote: “NDOC’s purchase and intended use of Hikma’s products for capital punishment is in violation of state and federal law, in knowing violation of Hikma’s property and proprietary interests in its products, and these actions will cause significant damage to Hikma’s business reputation and the interests of its investors.”

A federal judge issued an order June 28 staying Floyd’s execution, saying Nevada’s late disclosure of the drugs it intended to use did not provide the court sufficient time to assess the constitutionality of the state’s untested execution method. “Even for individuals who have been condemned to execution by the state, fundamental due process and fairness is required to have an adequate amount of time to be able to investigate the method by which the state intends to take his life,” Judge Richard Boulware said.

Hikma’s letter alluded to a 2018 lawsuit brought against Nevada by drug manufacturer Alvogen, Inc., and joined by Hikma and Sandoz Inc., charging that the state had engaged in deceptive practices to obtain drugs for the execution of Scott Dozier. Finding that NDOC had obtained the drugs “by subterfuge” after Alvogen had specifically informed NDOC it would not sell its medicines for use in executions, a Nevada state court judge issued a restraining order barring Nevada from using Alvogen’s drugs. Hikma and Sandoz provided similar notice to the state as soon as they learned Nevada intended to use their drugs in the execution.

“This is not Hikma’s first rodeo with NDOC on this issue, and the [Office of the Attorney General] and NDOC are well aware of Hikma’s long history of opposing the purchase and misuse of its life-saving products for capital punishment,” Reid wrote. “It is nothing less than shocking, and embarrassing for the State of Nevada.”

The lethal-injection protocol released by Nevada on June 10, 2021 gives the state significant leeway in the selection of drugs for executions. It calls for either a three-drug protocol of an opioid (either fentanyl or alfentanil, depending on availability), the anesthetic ketamine, and a drug to stop the heart (either potassium chloride or potassium acetate, depending on availability). An alternative four-drug method adds the paralytic cisatracurium as the third drug in the sequence. The state prison director Charles Daniels said in a federal court filing that he asked the NDOC pharmacy director to purchase the drugs “through ordinary transaction efforts,” meaning they were ordered online. Invoices show that the drugs were purchased from a wholesaler, Cardinal Health. The state did not disclose to the distributor that the drugs were intended for use in executions.

Hikma has requested a “raised seal copy of an affidavit signed by the state attorney general (or governor), certifying under penalty of perjury that the product(s) will not be used for capital punishment.” The company’s earlier lawsuit was dismissed in 2020 after state officials returned the unused drugs, which had expired, to the manufacturers.

“The State of Nevada is again attempting to use medicine in an unlawful way to effectuate a barbaric form of justice,” ACLU senior staff attorney Jen Shomshor said in a statement. “Horrifically botched executions remain a reality associated with using drugs improperly and in an untested and dangerous manner. NDOC’s illegal procurement of ketamine for the purpose of being the first state in the nation to use it in an execution is a repudiation of both legal and social contracts.”