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.”