Doctor seeks to stop ‘illegal’ use of firm’s drugs in Florida execution

September 26, 2011

A leading neurologist who uses drugs produced by pharmaceutical firm Lundbeck in his work has taken legal action to prevent their use in lethal injections – notably in the execution of a Cuban prisoner who is set to die in Florida on Wednesday.Dr David Nicholl, who has led the professional debate on the issue in The Lancet and elsewhere, has filed an emergency petition with Florida’s Supreme Court seeking to prevent the state’s Department of Corrections from ‘unlawfully’ using the drugs in executions. Such use would violate the Controlled Substances Act, which bans the use of pentobarbital – the first drug in a three-stage execution ‘cocktail’ – for non-medical purposes. Dr Nicholl also raises the concern that using this drug in executions harms the medical profession and those who benefit from it, by creating a disincentive to companies that manufacture the drug.Manuel Valle, a Cuban national with ties to Spain, is set to be the first prisoner executed in Florida using pentobarbital this Wednesday (June 28th). Lundbeck, the firm headquartered in Denmark which manufactures the drug, is strongly opposed to its use in lethal injections, and has taken steps to prevent this from happening. However, some states – Florida included – hold stockpiles of the drug that were hoarded before protective measures were put in place.As a neurologist who relies on Lundbeck to supply products for legitimate medical use, Dr Nicholl has a strong interest in any reputational or commercial threats which they may face as a result of the improper use of their drugs. His position as a stakeholder deeply involved in the issue has led him to file a writ of Quo Warranto, in which he “asserts a direct interest in preventing the unlawful use of its products to end human life.” Dr Nicholl said: “To their credit, Lundbeck have made it clear that this drug should not be used for executions. The medical profession has been quite explicit that  pentobarbital has no role in executions. The use of this drug – which should only be used in an intensive care-type setting with full anaesthetic support – is nothing short of barbaric, and has resulted in botched executions. When both the medics and the manufacturer are saying the use of this drug is illegal, it is about time the State of Florida paid attention. Florida must stop using pentobarbital in a manner which is, in my view, unconstitutional and illegal.” ENDS Notes to editors 1. For further information, please contact Donald Campbell or Katherine O’Shea at Reprieve’s press office: +44 (0) 207 427 1082 2. The full text of Dr Nicholl’s petition can be found on Reprieve’s website. 3. Manuel Valle is a Cuban national with Spanish links, who has now been on death row for 33 years. He has been denied proper clemency proceedings, and (similarly to the recent case of Humberto Leal in Texas) did not receive the consular assistance to which he was entitled. 4. Further problems in the case, as cited by Mr Valle’s legal team and in the amicus brief, include:

    Mr Valle has not been granted a fair and meaningful clemency process – a clear and unequivocal right under international law. Mr Valle is due to be executed with a new method featuring controversial drug pentobarbital. Pentobarbital was not designed for use in surgical anaesthesia, and both medical experts and the manufacturer agree that use in executions could cause agonising pain and suffering. Executions using pentobarbital have failed properly to anaesthetize prisoners, leading to severe and prolonged agony. An eyewitness from the Associated Press has described the “thrashing, jerking death of Roy Willard Blankenship” during which “his eyes never closed”. The full text of Dr David Waisel’s affidavit on Roy Blankenship’s inadequate anaesthesia can be found on Reprieve’s website.  Mr Valle has been on death row for 33 years, due primarily to the errors in the way that proceedings were carried out by the State of Florida. Prolonged incarceration on death row amounts to cruel, inhuman or degrading punishment and violates international law.

5. Reprieve’s EC Project identifies and assists prisoners with European connections who are facing the death penalty in the USA.