Nevada Execution Halted On Claims State Obtained Execution Drug Through ​“Subterfuge”

In response to a law­suit filed by phar­ma­ceu­ti­cal man­u­fac­tur­er Alvogen, Inc., a Clark County, Nevada District Judge has stayed the July 11, 2018, exe­cu­tion of Scott Dozier and issued a tem­po­rary restrain­ing order bar­ring Nevada from using drugs pro­duced by Alvogen to execute Dozier. 

Saying Nevada had obtained a sup­ply of the drug-mak­er’s seda­tive mida­zo­lam ​“by sub­terfuge,” the multi­bil­lion-dol­lar gener­ic drug com­pa­ny sued Nevada and the state Department of Corrections on July 10 to pre­vent the state from using its drugs in any exe­cu­tion. The law­suit alleged that Nevada ​“inten­tion­al­ly defraud­ed Alvogen’s dis­trib­u­tor” by con­ceal­ing its inten­tion to use Alvogen’s med­i­cine in Dozier‘s exe­cu­tion and by ​“implic­it­ly ma[king] the false rep­re­sen­ta­tion that they had legit­i­mate ther­a­peu­tic ratio­nale” for buy­ing the drug. 

In grant­i­ng the restrain­ing order, District Judge Elizabeth Gonzalez wrote that the mis­use of mida­zo­lam in an exe­cu­tion would result in ​“irrepara­ble harm to [Alvogen’s] rep­u­ta­tion as a com­pa­ny that pro­duces life-enhanc­ing and life-sav­ing drugs” and that the dam­age to its busi­ness rep­u­ta­tion could adverse­ly affect investor and customer relations. 

Alvogen has a pol­i­cy not to accept direct orders from prison sys­tems or depart­ments of cor­rec­tion and ​“does not con­done the use of any of its drug prod­ucts, includ­ing mida­zo­lam, for use in state spon­sored exe­cu­tions.” Alvogen’s lawyers said that the com­pa­ny also had sent a let­ter in April to the gov­er­nors, attor­neys gen­er­al, and prison direc­tors of all of the death-penal­ty states in the U.S. express­ing ​“in the clear­est pos­si­ble terms that Alvogen strong­ly objects to use of its prod­ucts in capital punishment.” 

After Nevada’s sup­ply of anoth­er drug expired and it decid­ed to switch to mida­zo­lam, prison offi­cials bought the drug from phar­ma­ceu­ti­cal dis­trib­u­tor Cardinal Health with­out dis­clos­ing its intend­ed pur­pose. Alvogen said Nevada offi­cials direct­ed Cardinal Health to ship the drug to a state office more than 200 miles from the state prison ​“to fur­ther the impli­ca­tion that the mida­zo­lam was for a legit­i­mate medical purpose.” 

Alvogen’s suit is the sec­ond time a phar­ma­ceu­ti­cal com­pa­ny has tak­en legal action to stop its drugs from being used in exe­cu­tions. In April 2017, McKesson Medical-Surgical sued the state of Arkansas over the use of the par­a­lyt­ic drug vecuro­ni­um bro­mide, but ulti­mate­ly was unsuc­cess­ful in block­ing the state from using the drug. The Clark County court has ordered a sta­tus con­fer­ence in this case for September 10.