Nebraska Pharmacy May Have Violated Drug Distribution Policies, State Refused Drug Give-Back Demands, Records Show

Nebraska may have exe­cut­ed Carey Dean Moore in August 2018 using drugs sup­plied by a phar­ma­cy in vio­la­tion of phar­ma­ceu­ti­cal man­u­fac­tur­ers’ dis­tri­b­u­tion poli­cies, Nebraska Department of Correctional Services (NDCS) records suggest. 

The records show that Community Pharmacy Services, a local phar­ma­cy based in Greta, Nebraska, pro­vid­ed the state with sup­plies of five poten­tial exe­cu­tion drugs. The dis­tri­b­u­tion poli­cies of the com­pa­nies that pro­duced the med­i­cines pro­hib­it­ed their sale for use in exe­cu­tions. Nebraska sub­se­quent­ly rebuffed requests by the man­u­fac­tur­ers to return the drugs.

NDCS released the doc­u­ments July 23, 2020, in response to a Nebraska Supreme Court order in open-records law­suits filed by the Omaha World-Herald, Lincoln Journal Star, and the ACLU of Nebraska. The records show that Community Pharmacy, which nor­mal­ly pro­vides phar­ma­ceu­ti­cals for long-term care facil­i­ties, received a $492,000 two-year con­tract to man­age NDCS’s phar­ma­cy from October 1, 2016, to September 30, 2018. The com­pa­ny invoiced NDCS $8,000 and $2,500 — dis­guised on invoic­es as ​“Miscellaneous expense” pay­ments — for sup­plies of fen­tanyl, diazepam, cisatracu­ri­am, and potas­si­um chlo­ride for the state’s one-of-a-kind four-drug exe­cu­tion pro­to­col. The state also pur­chased a sup­ply of the drug hydro­mor­phone but did not use it in the exe­cu­tion. Hydromorphone was one of the drugs impli­cat­ed in the botched exe­cu­tion of Joseph Wood in Arizona in July 2014. 

The pharmacy’s own­er, Kyle Janssen, post­ed a state­ment on the company’s web­site, say­ing he ​“regret­ted the deci­sion as it does not align with our company’s val­ues to pro­vide the best patient care and cus­tomer ser­vice to the long-term care industry.” 

The state­ment said: ​“In a devi­a­tion from our core busi­ness, we were hired to man­age the phar­ma­cy oper­a­tions for the Nebraska Department of Corrections facil­i­ties from 2016 – 2018. During the course of that con­tract, the com­pa­ny was asked by the state to legal­ly sell drugs to the depart­ment. The com­pa­ny ful­filled that order fol­low­ing all DEA pro­to­cols and pro­ce­dures, and under­stood the poten­tial use of those drugs. 

“Community Pharmacy Services has nev­er sup­plied drugs since then to the Nebraska Department of Corrections or any oth­er depart­ment of cor­rec­tions, nor will it ever again.”

In 2017, the Omaha World-Herald, Lincoln Journal Star, and the Nebraska chap­ter of the ACLU sep­a­rate­ly sued NDCS after the depart­ment denied open-records requests for lethal-injec­tion records relat­ed to the planned exe­cu­tion of Carey Dean Moore. In June 2018, two months before Moore’s sched­uled exe­cu­tion, a Nebraska tri­al court ordered NDCS to dis­close the records. However, the state appealed the deci­sion, suc­cess­ful­ly thwart­ing release of the doc­u­ments in advance of Moore’s exe­cu­tion. In May 2020, the Nebraska Supreme Court unan­i­mous­ly ordered NDCS to release the records.

Shortly before Moore’s exe­cu­tion, the German-based phar­ma­ceu­ti­cal com­pa­ny Fresenius Kabi learned that Nebraska intend­ed to exe­cute Moore with drugs man­u­fac­tured by the com­pa­ny. The com­pa­ny filed suit in Nebraska fed­er­al court alleg­ing that Nebraska had obtained the drugs ​“through improp­er or ille­gal means.” The law­suit said the company’s dis­tri­b­u­tion con­tracts with autho­rized whole­salers and dis­trib­u­tors pro­hib­it­ed sales to depart­ments of cor­rec­tions. It fur­ther alleged that Nebraska had obtained the drugs ​“in con­tra­dic­tion and con­tra­ven­tion of the dis­tri­b­u­tion con­tracts,” most like­ly from an unauthorized supplier. 

Two oth­er com­pa­nies who man­u­fac­tured drugs that Community Pharmacy Services sup­plied for the exe­cu­tion — Hikma Pharmaceuticals USA and Pfizer Inc. — said they also asked the Nebraska Department of Correctional Services to return their drugs. The state refused. ​“We strong­ly object to the use of any of our prod­ucts in the lethal injec­tion process for cap­i­tal pun­ish­ment,” Pfizer spokes­woman Sally Beatty told the Lincoln Journal-Star.

Community Pharmacy Services would not respond to media ques­tions as to whether its pur­chase of the drugs for use in lethal injec­tion vio­lat­ed phar­ma­ceu­ti­cal com­pa­ny drug dis­tri­b­u­tion con­tracts or could sub­ject the phar­ma­cy to legal liability.