Nebraska Plans First Execution in 21 Years. Not So Fast, Drug Company Says.

Carey Dean Moore, who faces the death penalty next week for killing two taxi drivers in Omaha, Nebraska, in 1979, has stopped fighting his looming execution. But his life may be extended by a German drugmaker that says it produced two of the drugs that are to be injected into Moore’s veins.

Fresenius Kabi, one of Germany’s largest companies, has asked a judge to block the use of its drugs in Nebraska’s first execution in 21 years and its first-ever lethal injection. Use of the drugs, the company says, will cause grave harm to its reputation if products intended to help treat people are used to kill.

A hearing is planned for Friday afternoon in U.S. District Court in Lincoln, Nebraska, and if the judge grants the company’s request for an injunction it could delay the execution, scheduled for Tuesday.

Two drugs Fresenius says it manufactured, along with two other drugs, are set to be used in Moore’s execution.

Fresenius says it takes no position on capital punishment, but that it has strict contracts with distributors that ban sales to prisons for executions or to anyone other than hospitals and other medical users. It says Nebraska illegally obtained both a muscle relaxant and a drug that, when given at extremely high doses, can stop a beating heart.

In Nebraska, any delay could further complicate matters because the state’s supply of one of the drugs, potassium chloride, expires in three weeks, and its supply of the other, cisatracurium, expires Oct. 31, according to Scott R. Frakes, the state corrections director. The drugs used in lethal injection have become increasingly difficult to obtain as pharmaceutical companies try to clamp down on their use and death penalty opponents argue that new drug protocols are unproven or inhumane.

On Thursday night, Tennessee carried out its first execution since 2009, putting Billy Ray Irick to death for the rape and murder of a 7-year-old girl in 1985. The state used a combination of drugs that Irick’s lawyers had argued could make the condemned feel like they were burning alive and drowning.

According to The Tennessean newspaper, Irick “was coughing, choking and gasping for air” and “his face turned dark purple as the lethal drugs took over.”

In its lawsuit, Fresenius has raised the specter that use of the drugs could lead to a botched execution, saying its drugs, when obtained improperly, are at risk of being handled or transported in ways that leave them adulterated and chemically altered. For example, it says cisatracurium, the muscle relaxant, loses effectiveness when not refrigerated in the carton between 36 and 46 degrees Fahrenheit, but that Nebraska’s execution protocols call for the drugs to be stored at “room temperature storage conditions.”

The company says it determined it was the maker of the potassium chloride because an inventory of drugs kept by the state showed that its stockpile came in vials of 30 milliliters. Fresenius says it is the only manufacturer that packages the drug in vials of that size.

“We made no sales to the Department of Correctional Services, nor have any of our authorized distributors,” Fresenius Kabi wrote in a statement. “So we can only conclude Nebraska may have acquired this product from an unauthorized seller.”

Nebraska is fighting separate legal efforts to force it to disclose where it got the drugs. A statement issued by Attorney General Doug Peterson said the drugs “were purchased lawfully and pursuant to the state of Nebraska’s duty to carry out lawful capital sentences.”

But neither the statement, nor state officials on Thursday, said which company manufactured the drugs, what temperature they are being stored at or whether an injunction would delay the execution. The offices of Peterson and the Nebraska governor, Pete Ricketts, did not respond to messages Thursday.

The planned execution of Moore, 60, is also notable because it would be the first-ever lethal injection in the United States that uses fentanyl, a powerful opioid that is at the heart of the nation’s overdose crisis. Moore has ceased efforts to prevent his execution.

It is also the second time in a month that pharmaceutical manufacturers have sought to block a state from using their drugs in an execution.

In July, the execution of Scott Dozier in Nevada was delayed after a drugmaker, Alvogen, said one of the drugs in the state’s execution protocol had been obtained illicitly. Two other companies that also make drugs Nevada wants to use in the execution, Sandoz and Hikma Pharmaceuticals, have also sought to block the state from using their products.

Maya Foa, the director of Reprieve, a human rights organization in London, said there is now a consensus in the pharmaceutical industry that it should fight to prevent its products from being used in executions.

“We’ve come to a tipping point in terms of the industry’s desire to see their contracts and rights respected and enforced,” Foa said.

On top of that, she said, state governments are undermining public health by using murky or illegal drug distribution channels to traffic in powerful narcotics and other drugs.

“That’s scandalizing in a climate where we’re seeing a hundred people dying every day from the opioid epidemic,” she said.

The drug companies’ aggressive maneuvers have put officials in some death penalty states on the defensive. In a friend-of-the-court brief filed with the Nevada Supreme Court in the Dozier case, 15 other states contend that the drug companies’ arguments are groundless.

Their lawsuits “do not even need to succeed on the merits in order to achieve the desired outcome and prevent an execution,” their brief states. “Instead, they merely have to obtain an injunction preventing a state from carrying out an execution on the scheduled date. And that alone might delay an execution long enough that a state’s drugs could expire.”

Leslie Rutledge, the attorney general of Arkansas, one of the 15 states, argued that the companies “are being pressured by anti-death-penalty advocates to stop supplying the drug to carry out lawful executions,” adding: “The families of these victims deserve justice.”

The other states supporting Nevada’s effort to execute Dozier over the drug companies’ objections are Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas and Utah.