Nevada high court taking up execution drug supply question
September 17, 2018
LAS VEGAS — A judge in Las Vegas who heard more than three days of testimony about how Nevada obtained drugs for a twice-postponed execution said Monday she will need a few days to decide whether three drugmakers can block use of their products in a lethal injection the companies say they want no part of.
Pharmaceutical firm attorneys said during closing arguments that state prison officials used subterfuge to obtain the drugs for a never-before-tried combination — a sedative to calm the inmate, heavy doses of the powerful opioid fentanyl to slow the inmate's metabolism, and a muscle-paralyzing drug to ensure breathing stops.
"We're here now because the state of Nevada went around and bought drugs it knew it wasn't supposed to, and then tried to keep it a secret," said Todd Bice, attorney for Alvogen, maker of the sedative midazolam and the lead plaintiff in the lawsuit. "The state of Nevada is not above the law."
State Deputy Solicitor General Jordan Smith argued that the companies were overcome by sellers' remorse after being identified through a public records lawsuit as the manufacturers.
Smith said the firms had no ownership right to the drugs once Nevada obtained them, and it was the companies' fault that they did not strictly control distribution of their products by the third-party supplier that sold the products to Nevada.
"They didn't take a proactive approach," Smith said, blaming the companies for not obtaining signatures from the governor and attorney general blocking the purchase of their drugs.
Recommended Stories For You
"They made an economic decision, a cost-benefit analysis, and decided it wasn't worth the loss of potential sales," Smith said.
Clark County District Court Judge Elizabeth Gonzalez told attorneys for the state and pharmaceutical firms — also including Hikma Pharmaceuticals USA and Sandoz Inc. — that she hoped to issue her ruling by Friday.
That's the day the state Supreme Court plans oral arguments in Carson City on a fast-track bid by Nevada to reschedule the lethal injection of twice-convicted killer Scott Raymond Dozier, who says he wants to die.
However, justices signaled Monday that they might put the brakes on oral arguments, after attorneys for the drug companies filed documents citing testimony last week from Nevada's prisons pharmacy chief.
Department of Corrections Pharmacy Director Linda Fox acknowledged the state has stocks of drugs to carry out an execution into next year — casting doubt on the need for an expedited Supreme Court hearing.
Justices called for a written response by Tuesday afternoon from Smith, who has argued that unless the Supreme Court decides by mid-October that the execution can proceed, some drugs will expire.
Fifteen of the 30 other states in the U.S. with capital punishment are siding with Nevada in the state high court fight.
They argue that harassment from advocacy groups and threats of company boycotts are keeping prison officials from enforcing the will of voters in states with capital punishment. Dozier's lethal injection would be Nevada's first since 2006.
Pro-capital punishment states are led by Oklahoma and include Nebraska, where an inmate was put to death last month using a four-drug combination that for the first time included fentanyl. That's a drug blamed for illegal-use, drug overdose deaths nationwide.