Nevada judge stalls execution after company objects to use of its drug

Elias Hubbard
July 12, 2018

The drug company that create Midazolam, which was expected to be one of three drugs used in the execution, sued the State of Nevada and the Department of Corrections, claiming Alvogen was misled in what the drug would be used for.

Lauren Kaufman, staff attorney with the American Civil Liberties Union of Nevada, which filed a separate lawsuit last week seeking public records related to the state's lethal injection procedures, said the group was anticipating Wednesday's arguments.

In its complaint, the drug company demands the immediate return of the state's supply of midazolam, arguing that the sedative was purchased "by subterfuge with the undisclosed and improper intent to use it for the upcoming execution in complete disregard of plaintiff's rights".

That case wound up in the Nevada Supreme Court, where the justices unanimously overturned the district judge's ruling in May, according to CNN affiliate KSNV.

Scott Raymond Dozier appears in a photo provided by the Nevada Department of Corrections in Nevada, U.S., July 11, 2018. Nevada's first-of-its-kind plan also calls for the powerful synthetic opioid fentanyl to slow Dozier's breathing and the muscle paralytic cisatracurium to prevent movement and stop his breathing.

A spokeswoman for Nevada Department of Corrections, Brooke Santina, told the Reno Gazette Journal the agency would not comment on the pending litigation.

It was not immediately clear if the filing would stop the execution scheduled at Ely State Prison, 250 miles north of Las Vegas.

This would be the first time that fentanyl, one of the central drugs in the United States opioid epidemic, has been used in an execution in the U.S., and it likely would be a first for cisatracurium as well, said Robert Dunham, executive director of the Death Penalty Information Center.

Midazolam has been used with inconsistent results in states including Alabama, Arkansas, Arizona, Florida and Ohio.

The judge ruled that based on that letter, Alvogen had a reasonable chance of winning its lawsuit, and she issued the temporary restraining order against the use of the drug.

A second pharmaceutical company, Sandoz, also raised objections at Wednesday's hearing to the use of one of its drugs - the muscle-paralyzing substance cisatracurium - in Dozier's execution.

Pharmaceutical companies have resisted the use of their drugs in executions for 10 years, citing legal and ethical concerns.

New Jersey-based Alvogen says in a lawsuit filed Tuesday it doesn't want its product used in "botched" executions. But the legal challenge filed by Alvogen is only the second of its kind in the US, said Robert Dunham, executive director of the Death Penalty Information Center in Washington.

Nevada announced last fall that it was preparing to use fentanyl in Dozier's execution.

"You got something that's killing hundreds of people a day across the United States, and you got prisons who can't get death penalty drugs, so they're turning to the drug that's killing hundreds of people across the United States", he said.

Midazolam was substituted in May for expired prison stocks of diazepam, a similar sedative commonly known as Valium. The previous challenge, filed past year by a different company in Arkansas, was unsuccessful in halting that execution.

Dozier's execution was stayed last November at the request of the Nevada Department of Corrections after a judge blocked the state from using cisatracurim in a newly devised and untested three-drug combination to carry out the death penalty. The drug is meant to render the inmate unconscious.

His would be the first execution in Nevada since 2006.

Dozier has reportedly suspended any further appeals of his conviction or sentence, saying he can no longer bear life behind bars.

Dozier was sentenced to die in 2007 for first-degree murder with a deadly weapon and robbery with a deadly weapon in the slaying of Jeremiah Miller. His decapitated torso was found in a suitcase.

In 2005, Dozier was sentenced to 22 years in prison for shooting 26-year-old Jasen Greene, whose body was found in 2002 in a shallow grave outside Phoenix.

He did, however, let federal public defenders challenge the execution protocol drawn up previous year by state medical and prison officials.

Other reports by Click Lancashire

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