Finding ​“Bad Faith,” Judge Grants Injunction Preventing Nevada From Using Drug in Execution

Finding that the Nevada Department of Corrections act­ed in ​“bad faith” to obtain the drug mida­zo­lam through ​“sub­terfuge,” a Las Vegas tri­al court has issued a pre­lim­i­nary injunc­tion bar­ring the state from using its sup­ply of that drug in car­ry­ing out any exe­cu­tion. The 43-page rul­ing issued by Judge Elizabeth Gonzalez (pic­tured) on September 28, 2018 effec­tive­ly freezes efforts by Nevada pros­e­cu­tors to exe­cute Scott Dozier, who has waived his appeals and asked to be put to death. 

Judge Gonzalez found that Nevada prison offi­cials knew when they pur­chased sup­plies of each of the drugs in the state’s three-drug lethal-injec­tion pro­to­col from drug dis­trib­u­tor Cardinal Health that the man­u­fac­tur­ers of all three drugs pro­hib­it­ed the use of their med­i­cines in exe­cu­tions. However, Judge Gonzalez lim­it­ed the injunc­tion to the mida­zo­lam pro­duced by the gener­ic-drug man­u­fac­tur­er Alvogen Inc., find­ing that the company’s dis­tri­b­u­tion con­tract with Cardinal Health specif­i­cal­ly barred sales of the seda­tive for use in lethal injec­tions. While Gonzalez said she was ​“dis­turbed by the con­duct of the State” in its pur­chase of the par­a­lyt­ic drug cisatracuri­um and its ​“ille­git­i­mate acqui­si­tion” of the opi­ate fen­tanyl, she said the absence of evi­dence that drug man­u­fac­tur­ers Sandoz Inc. and Hikma Pharmaceuticals USA Inc. had sales con­trols in place with Cardinal Health at the time Nevada pur­chased sup­plies of those drugs was suf­fi­cient to deny them injunctive relief. 

The court issued its order after week-long hear­ing on a law­suit filed by Alvogen just before Dozier’s sched­uled July 11, 2018 exe­cu­tion. Alvogen’s suit alleged that Nevada had obtained its sup­ply of mida­zo­lam ​“by sub­terfuge” and that Nevada had ​“inten­tion­al­ly defraud­ed Alvogen’s dis­trib­u­tor” by con­ceal­ing its inten­tion to use the drugs to exe­cute Dozier and by ​“implic­it­ly ma[king] the false rep­re­sen­ta­tion that they had legit­i­mate ther­a­peu­tic ratio­nale” for buy­ing the drug. 

Gonzalez’s order notes that even before begin­ning to dis­trib­ute mida­zo­lam, ​“Alvogen put in place con­trols to pre­vent the direct sale [of the drug] to any depart­ment of cor­rec­tions, or any sale that Alvogen believed could be divert­ed to be used in an exe­cu­tion.” The judge deter­mined that both Nevada’s prison direc­tor, James Dzurenda, and its prison phar­ma­cy direc­tor, Linda Fox, knew when they bought Alvogen’s drugs that the com­pa­ny ​“object­ed to their use in lethal injec­tion and that they had con­trols in place to pre­vent sales for such use… Indeed,” Judge Gonzalez wrote, ​“when pur­chas­ing the Alvogen Midazolam Product, Fox’s response to Alvogen’s objec­tions was ​‘Oh shit.’ She then asked if Mr. Dzurenda if he would like her to order more [mida­zo­lam] because she was ​‘cer­tain once it’s in the press that we got it [she] will be cut off.’” Knowing ​“that it was not allowed to acquire this prod­uct for use in cap­i­tal pun­ish­ment,” Judge Gonzalez wrote, the Nevada Department of Corrections ​“was not a good faith pur­chas­er” of Alvogen’s midazolam. 

The court also found that Nevada’s use of the med­i­cines in exe­cu­tions ​“will irrepara­bly harm the three com­pa­nies’ rep­u­ta­tions,’ … result[ing] in lost sales, lost licens­ing oppor­tu­ni­ties, weak­ened employ­ee recruit­ment, divesti­tures by investors, increased financ­ing costs, lost oppor­tu­ni­ties to enter the mar­ket for gener­ic drugs, and lost oppor­tu­ni­ties to devel­op new branded drugs.” 

The case is the first time a court has con­duct­ed a hear­ing into state mis­con­duct in acquir­ing exe­cu­tion drugs. In 2017, drug dis­trib­u­tor McKesson Medical-Surgical sued Arkansas and mul­ti­ple drug com­pa­nies alleged mis­con­duct by the state in obtain­ing its exe­cu­tion drugs. Although the Arkansas Supreme Court per­mit­ted that law­suit to move for­ward, the drugs expired and the par­ties agreed to dis­miss the action before the court could take evi­dence in the case.