LINCOLN — Two more pharmaceutical companies have notified Nebraska officials that they don’t want their drugs used in a lethal injection scheduled to take place in less than two weeks.
Whether the manufacturers will back up their words in court remains to be seen, but such a legal challenge represents one of the last ways to potentially derail the Aug. 14 execution of double-murderer Carey Dean Moore.
Representatives of Sandoz Inc. and Hikma Pharmaceuticals said Wednesday that they have not yet confirmed whether the Nebraska Department of Correctional Services has obtained their products. Nebraska officials have repeatedly refused to disclose the source of the four substances they intend to use in the state’s first lethal injection execution.
In the meantime, Michelle T. Quinn, general counsel for Sandoz North America, has said we “reserve all of our rights to take necessary legal action to ensure the proper use of our medications.” The statement was contained in a Monday letter addressed to Nebraska’s governor, attorney general and corrections director.
Messages left after 5 p.m. with press officers for Gov. Pete Ricketts and Attorney General Doug Peterson were not returned Wednesday night. A spokeswoman for corrections said the department would take the four days allowed under the public records law to respond to a request for the letters sent by the drug companies.
The sequence of drugs Nebraska plans to use in Moore’s execution are diazepam, a sedative known more commonly as Valium; fentanyl citrate, a painkiller linked to the national epidemic of opioid addiction; cisatracurium besylate, a paralyzing agent that can stop breathing; and potassium chloride, which can trigger heart attack in high doses.
Sandoz is one of several manufacturers of cisatracurium, while Hikma Pharmaceuticals is one of several makers of fentanyl.
Some death penalty opponents view a lawsuit by a drug manufacturer as one of the last avenues to delay the first execution in Nebraska in 21 years. That’s largely because Moore, who has spent 38 years on death row, has not mounted his own legal fight to block the execution.
Recent events in Nevada lend credence to the view. Alvogen, a different drugmaker, prompted a last-minute delay of a July 11 execution in that state. Like Moore, the Nevada inmate also has said he wants his execution to be carried out.
London-based Hikma successfully joined the Nevada lawsuit on Monday after learning that corrections officials there had obtained the company’s fentanyl. Nevada officials bought the drug through a third-party distributor even though the company repeatedly said it didn’t want its products used for capital punishment, the company alleged in a legal document filed this week.
In addition to being the first two states trying to use fentanyl in an execution, Nebraska and Nevada also hold contracts with Cardinal Health, a third-party drug distributor. Legal filings in Nevada say Cardinal Health sold the two disputed drugs to Nevada prison officials.
Steven Weiss, a spokesman for Hikma, said Wednesday that the company has recently asked Nebraska officials to do two things. First, tell the company if the state government possesses any drugs manufactured by Hikma. And if so, provide an official affidavit pledging that the drugs will be used only for legitimate patient care.
“We are disappointed that these efforts in Nebraska have been unsuccessful to date,” Weiss said.
Weiss declined to say Wednesday whether the company will file a lawsuit to seek the return of any drugs Nebraska may have obtained. But the company has offered to refund the cost of drugs Nebraska purchased for the execution.
Earlier this week, an official for Pfizer renewed a demand the company first made in October that Nebraska return any Pfizer drugs purchased for capital punishment. Corrections officials have not responded to the demands.
Pfizer, which makes fentanyl, diazepam and potassium chloride, has ruled out taking legal action to force the return of the drugs.
The four-drug protocol planned by Nebraska has never been used in an execution. Death penalty opponents say that raises the possibility of a botched execution and unnecessary suffering for the inmate in violation of the U.S. Constitution.
The American Civil Liberties Union of Nebraska and state newspapers have sued to compel public disclosure of the source of the drugs. A district court judge ordered the information released, but the order was put on hold after the attorney general appealed.
Moore, 60, was sentenced to death row for the 1979 shootings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland. He is the longest-serving of the state’s 12 condemned inmates.