Judge blocks Nevada execution – rules that state may not use sedative against manufacturer’s wishes

July 11, 2018

A Nevada judge has blocked tonight’s scheduled execution of Scott Dozier by ruling that the state may not use the sedative midazolam as part of its lethal injection protocol.

The American pharmaceutical company Alvogen had sued Nevada to prevent the use of its medicines in the execution. Judge Elizabeth Gonzalez decided in the company’s favor. Her ruling: “The state is restrained and enjoined from using midazolam.”

As the state has said it will not proceed with the execution without its three drug protocol, the execution is effectively blocked.

Lawyers for Alvogen alleged that Nevada officials acquired Alvogen medicines “illicitly and through subterfuge,” in the process violating state laws intended to tackle the opioid epidemic and prevent the misuse of dangerous drugs.

“The situation is analogous to felon being told he cannot possess a gun, but finds a place to buy one,” the company’s lawyer told the court. “They’re on notice that they can’t legally acquire a firearm. We don’t have to wait until that gun is used in a crime to start forfeiture proceedings.”

Sandoz, another pharmaceutical company, also intervened in the suit brought by Alvogen, formally objecting to its medicines being used in this specific execution. Sandoz produces the paralytic in Nevada’s protocol, cisatracurium besylate, which is designed to paralyse the inmate so they show no outward signs of suffering if the sedative fails to work.

Nevada has not carried out an execution since 2006. Its three drug lethal injection protocol – Midazolam, the opioid Fentanyl, and the paralytic Cisatracurium Besylate – is untested in any state. Indeed, it was only announced last week, on July 3. Every state that has included midazolam in its lethal injection protocol has seen gruesome botched executions as a result.

Alvogen’s lawsuit is only the latest healthcare industry opposition to the misuse of medicines in executions. Over fifty companies have taken action to prevent their drugs being diverted to death rows for use in capital punishment.

Maya Foa, head of the Lethal Injection Information Center at Reprieve, said: 

“This ruling affirms that the makers of medicines have a right to decide how their products are used. Healthcare companies make drugs to save lives, not to end them in experimental executions.

“These lawsuits exposed how Nevada ignored drug safety laws designed to protect the public and used ‘subterfuge’ to undermine private contracts. In doing so, they endangered the lives of patients and flagrantly violated the business interests of the healthcare industry. The court is right to enjoin the state from proceeding with the execution using drugs that have been illegally procured.”