Judge to rule Friday on drugmaker’s lawsuit alleging that Nebraska officials may have illegally obtained execution drugs

Judge to rule Friday on drugmaker’s lawsuit alleging that Nebraska officials may have illegally obtained execution drugs
The Nebraska Department of Correctional Services' execution room in Lincoln, as seen from the viewing room. (World-Herald News Service)

LINCOLN — A federal judge plans to make a crucial ruling Friday in a lethal injection drug dispute that could delay next week’s execution of Nebraska’s longest serving death row inmate.

A pharmaceutical manufacturer alleged in a federal lawsuit filed this week that state officials may have illegally obtained two of the drugs they intend to use in the Tuesday execution of Carey Dean Moore, in line to be the first inmate put to death by lethal injection in Nebraska.

Attorney General Doug Peterson said Wednesday the drugs were obtained legally.

Senior U.S. District Judge Richard Kopf set a hearing for 3 p.m. Friday to decide whether to grant a temporary restraining order that could prevent Nebraska from using one or both of the drugs. The judge told the lawyers that he plans to rule from the bench after the one-hour hearing at the federal courthouse in Lincoln.

“I’m also aware that although he is not a party, the gentleman who will be executed on Tuesday, if I don’t do something, is going to want to know as quickly as he can,” Kopf said.

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

Drugmaker Fresenius Kabi, which has headquarters in Germany and in Lake Zurich, Illinois, says Nebraska officials did not acquire the two drugs through the company’s authorized distributors. It contends that the use of its medications in an execution would harm its business reputation and result in sales losses 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.

The attorney general said in a statement Wednesday that the four drugs 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.

Moore is scheduled to be executed for shooting two Omaha cabdrivers five days apart in 1979.

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 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 Nebraska dispute will be decided in federal court.

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 been used by any state.

The lawsuit filed late Tuesday said 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.

The company obtained drug inventory records released by prison officials late last year.

“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. Potassium chloride stops the heart. 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. The drugs are made with the purpose of saving lives and improving health, he added.

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 .

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.

State Sen. Ernie Chambers of Omaha has been publicly and privately urging pharmaceutical companies to sue, hoping it would block Moore’s execution. He called the state’s concealment of the drug sourcing “very shabby, very unprofessional and beneath the dignity of the state.”

“I think they have been caught dead to rights,” Chambers said. “All of this could be cleared up if the state would just come clean.”

Danielle Conrad, director of the ACLU 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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