Drugmaker Sues Nebraska, as 15 Death-Penalty States Oppose Ruling Blocking Use of Drugs in Nevada

Less than a month after a Nevada court halt­ed the exe­cu­tion of Scott Dozier in response to a law­suit filed by gener­ic-drug man­u­fac­tur­er Alvogen, anoth­er drug com­pa­ny has sued Nebraska, seek­ing to block the use of its med­i­cines in an upcoming execution. 

The German-based phar­ma­ceu­ti­cal com­pa­ny Fresenius Kabi filed suit in Nebraska fed­er­al court on August 8, 2018 alleg­ing that Nebraska intend­ed to exe­cute Carey Dean Moore on August 14 using drugs man­u­fac­tured by the com­pa­ny that had been obtained ​“through improp­er or ille­gal means.” The law­suit said the com­pa­ny’s dis­tri­b­u­tion con­tracts with autho­rized whole­salers and dis­trib­u­tors pro­hib­it sales to depart­ments of cor­rec­tions, and it alleges that Nebraska obtained the drugs ​“in con­tra­dic­tion and con­tra­ven­tion of the dis­tri­b­u­tion con­tracts,” most like­ly from an unauthorized supplier. 

Nebraska Attorney General Doug Peterson said the state’s exe­cu­tion drugs ​“were pur­chased law­ful­ly and pur­suant to the State of Nebraska’s duty to car­ry out law­ful cap­i­tal sen­tences,” an asser­tion that can­not be ver­i­fied because of the state’s secre­cy prac­tices. The state has refused to iden­ti­fy the source of the drugs it intends to use in Moore’s exe­cu­tion, but two of the drugs — the par­a­lyt­ic, cisatracuri­um, and potas­si­um chlo­ride, the drug used to stop the heart — are man­u­fac­tured by Fresenius Kabi and only that com­pa­ny makes vials of potas­si­um chlo­ride in the size obtained by the state. 

Nebraska is one of fif­teen death-penal­ty states that have joined in an ami­cus curi­ae (“friend of the court”) brief in the Nevada Supreme Court on August 6, 2018 urg­ing the court to over­turn a restrain­ing order that has pre­vent­ed Nevada from car­ry­ing out exe­cu­tions using sup­plies of the drug, mida­zo­lam, pro­duced by the phar­ma­ceu­ti­cal com­pa­ny Alvogen.

Alvogen’s suit alleges that Nevada had obtained the mida­zo­lam ​“by sub­terfuge” and ​“inten­tion­al­ly defraud­ed Alvogen’s dis­trib­u­tor” by con­ceal­ing its inten­tion to use Alvogen’s med­i­cine in Dozier‘s exe­cu­tion. The com­pa­ny’s plead­ings accused Nevada of ​“implic­it­ly ma[king] the false rep­re­sen­ta­tion that they had legit­i­mate ther­a­peu­tic ratio­nale” for buy­ing the drug and cov­er­ing up its true inten­tion by hav­ing the drug shipped to a state office sev­er­al hun­dred miles away from the prison. 

In addi­tion to issu­ing the restrain­ing order, the Nevada tri­al court stayed Dozier’s July 2018 exe­cu­tion. Like Fresenius Kabi, Alvogen alleges that the use of its prod­ucts in exe­cu­tions would dam­age its cor­po­rate rep­u­ta­tion and adverse­ly affect investor and customer relations. 

The ami­cus brief was filed by 15 of the 30 oth­er states that autho­rize cap­i­tal pun­ish­ment, all with Republican attor­neys gen­er­al — Arkansas, Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas, and Utah. The nine death-penal­ty states with Democratic attor­neys gen­er­al did not join the plead­ing, nor did six oth­er states with Republican attorneys general. 

The plead­ing claims, with­out pro­vid­ing any fac­tu­al sup­port, that Alvogen’s law­suit is the ​“lat­est front in the gueril­la war­fare being waged by anti-death-penal­ty activists and crim­i­nal defense attor­neys to stop law­ful exe­cu­tions.” The state offi­cials warn that, if the Nevada Supreme Court allows Dozier’s stay of exe­cu­tion to stand, activists will ​“flood” the courts in oth­er states with sim­i­lar ​“mer­it­less” challenges. 

In 2017, the drug dis­trib­u­tor McKesson sued Arkansas to pre­vent the state from using a sup­ply of the par­a­lyt­ic drug, vecuro­ni­um bro­mide, in exe­cu­tions, alleg­ing that the state had delib­er­ate­ly mis­led the com­pa­ny to believe that the drug would be used for legit­i­mate med­ical pur­pos­es. The brief asserts that ​“Alvogen’s mer­it­less claims mir­ror those reject­ed by the Arkansas Supreme Court” in McKesson case. However, court records reflect that the Arkansas Supreme Court actu­al­ly returned McKesson’s case to the tri­al court for fur­ther evi­den­tiary devel­op­ment and the case remained active until the expi­ra­tion of the state’s sup­ply of vecuro­ni­um bro­mide ren­dered the case moot in the Spring of 2018.

In 2011, Nebraska ille­gal­ly import­ed the exe­cu­tion drug sodi­um thiopen­tal from Harris Pharma, a ques­tion­able dis­trib­u­tor from India, that has told the drug man­u­fac­tur­er it was send­ing the drug to Africa for med­ical use. When the man­u­fac­tur­er, the Swiss com­pa­ny, Naari, learned its prod­uct had been pur­chased for use in exe­cu­tions, the com­pa­ny sued Nebraska. In 2015, Nebraska again attempt­ed to ille­gal­ly import exe­cu­tion drugs from Harris Pharma, but the ship­per, Federal Express, refused to bring the drugs into the coun­try cit­ing the lack of clear­ance from the Food and Drug Administration. Harris Pharma did not refund the $54,000 Nebraska had paid for the drugs. 

Hikma Pharmaceuticals USA, a man­u­fac­tur­er of fen­tanyl, has joined the Alvogen suit in an attempt to stop the use of its drug in the Nevada exe­cu­tion pro­to­col. A Las Vegas tri­al judge is expect­ed to decide on September 10 whether Sandoz Pharmaceuticals, which pro­duces the cisatracuri­um obtained by Nevada, may join that suit.