Drugmaker’s lawsuit alleges that Nebraska officials may have illegally obtained execution drugs

Drugmaker’s lawsuit alleges that Nebraska officials may have illegally obtained execution drugs
The Nebraska Department of Correctional Services' execution room. (MATT MILLER/THE WORLD-HERALD)

LINCOLN — A pharmaceutical manufacturer alleges in a federal lawsuit that Nebraska officials may have illegally obtained two of the drugs they intend to use in next week’s execution of a double murderer.

The claim sets the stage for a legal fight that could result in a delay of Tuesday’s execution of Carey Dean Moore, in line to be the first inmate put to death in Nebraska in 21 years.

Fresenius Kabi, with headquarters in Germany and Lake Zurich, Illinois, says its two products were not acquired by Nebraska officials through the company’s authorized distributors. It contends the use of its drugs in the execution would harm its business reputation and result in losses to net sales in excess of $75,000.

“These drugs, if manufactured by Fresenius Kabi, could only have been obtained by defendants in contradiction and contravention of the distribution contracts the company has in place and therefore through improper or illegal means,” the lawsuit stated.

Nebraska Attorney General Doug Peterson said in a statement Wednesday that the four lethal substances were obtained legally. He offered no other comment about the maker or supplier of the state’s drugs.

“Nebraska’s lethal injection drugs were purchased lawfully and pursuant to the State of Nebraska’s duty to carry out lawful capital sentences,” he said.

The company has asked a federal judge in Lincoln to grant a temporary restraining order to prevent the use of its products in the execution of Moore, on death row for shooting two Omaha cabdrivers in 1979.

Moore, 60, one of the longest-serving death row inmates in the nation, has dropped all of his appeals and wants to be executed.

If the judge grants the temporary restraining order, Moore’s execution could be postponed for what would be the eighth time in his 38 years on death row. The last stay of his execution, in 2011, also involved a legal dispute over the state’s lethal injection drugs.

Nebraska’s supply of one of the drugs named in the lawsuit will expire at the end of August, the attorney general has said.

A similar lawsuit filed by a different drug company recently prompted a delay of an execution scheduled in Nevada. But that lawsuit was filed in state court. The federal complaint filed in Nebraska will be decided by Senior U.S. District Judge Richard Kopf.

A hearing had not been scheduled as of Wednesday afternoon.

Nebraska officials have refused to identify the source of the drugs they intend to use to put Moore to death. The four-drug combination — diazepam, fentanyl, cisatracurium and potassium chloride — has never before been used by any state.

The lawsuit filed late Tuesday in U.S. District Court says the Nebraska Department of Correctional Services’ supply of potassium chloride is stored in 30 milliliter vials. Only Fresenius Kabi makes vials in that size, the lawsuit said.

“We can only conclude Nebraska may have acquired this product from an unauthorized seller,” said Matt Kuhn, the company’s spokesman. “Pharmaceuticals obtained in this manner are at risk of adulteration or chemical change due to improper handling.”

Fresenius Kabi is also one of several manufacturers of cisatracurium, a paralyzing agent that would be used to stop the inmate from breathing. The two other drugs in Nebraska’s protocol would be intended to render the inmate unconscious so he wouldn’t feel pain.

The lawsuit also said the company sent a letter to Gov. Pete Ricketts on July 24 objecting to the use of its products in capital punishment. Neither the governor nor corrections officials have responded, Kuhn said.

The company takes no position on the death penalty but opposes the use of its products in executions, Kuhn said.

It’s not the first time the company has tangled with Nebraska officials over drugs. The state obtained potassium chloride made by the company in 2015, apparently through a mistake by a distributor. Nebraska refused the company’s requests to return the drug, which expired before it could be used in an execution.

Earlier this week, Nebraska joined 15 other death penalty states in filing a brief in the Nevada case. Attorneys general for the states argued that pharmaceutical companies, prodded by anti-death penalty activists, will file last-minute lawsuits every time a state tries to carry out a lethal injection.

Three other pharmaceutical makers also have sent recent letters demanding that Nebraska officials return their drugs, if they have them.

Danielle Conrad, director of the American Civil Liberties Union of Nebraska, commended the company for taking legal action over the drug issue.

“Nebraska officials are rushing to carry out an execution cloaked in secrecy with an untested four-drug scheme that carries immeasurable risks for unnecessary pain and a botched execution,” she said.

Moore was convicted of the 1979 slayings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland. For years he fought efforts to carry out the sentence, but after 38 years on death row, he has said he wants to die.

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