The manufacturer of a drug to be used in the execution of Nevada death-row inmate Scott Dozier filed a lawsuit against the State of Nevada, Nevada Department of Corrections, and others to stop the use of a drug in the execution.
Drug manufacturer Alvogen, Inc. filed the lawsuit Tuesday in district court. The lawsuit claims the defendants plan to use an Alvogen drug, called Midazolam, in the execution which they “illegitimately acquired.”
In an "execution manual" released by the department of corrections, officials said they plan to use Midazolam in the execution. Midazolam will be used in place of the drug Diazepam, which expired. The other drugs that will be used in the execution are Fentanyl and Cisatracurium.
Dozier is scheduled to be executed Wednesday at 8 p.m. His execution faced delays in the past as justices ruled on the drug combination that would be used in the execution.
Alvogen executives learned of the plan to use the drug through a press inquiry on Saturday, the lawsuit stated.
Alvogen said it distributes Midazolam as an injectable medication, approved by the U.S. Food and Drug Administration, for use in inducing general anesthesia and preoperative sedation.
The lawsuit stated that Midazolam was introduced in executions by lethal injection to replace pentobarbital, a sedative, in the capital punishment regimen for some states when the manufacturer prohibited its use in executions.
The lawsuit states that the drug was acquired despite a warning from the Alvogen that the drug could not be acquired directly from the manufacturer and could not be acquired through a third-party distributor.
Alvogen learned from disclosures made in response to litigation by the Nevada Branch of the American Civil Liberties Union that the department of corrections acquired the drug from Cardinal Health, a distributor, through purchase orders from May 2018 that were to be completed in June 2018, according to the lawsuit. It claimed the department of corrections knew the drug was prohibited for use in executions.
In April 2018, Alvogen sent letters to the governor, attorney general and department of correction director in every state that has a death penalty stating that the company “strongly objects to the use of its products in capital punishment,” according to the lawsuit.
The lawsuit claims that the defendants “defrauded” the distributor and concealed the letter from April and/or the fact that the drug was intended to be used in an execution.
Alvogen claimed past attempts to use the drug in other lethal injections have been “extremely controversial” and led to concerns that inmates were exposed to cruel and unusual punishment. The lawsuit claimed that several attempts to use the drug were characterized by the media as "botched" procedures.
The lawsuit named three previous executions with use of the drug which resulted in the so-called “botched” punishments:In April 2014, Oklahoma attempted to use an untested three-drug cocktail which used Midazolam during Clayton Lockett’s execution. He reportedly regained consciousness and started speaking midway through the process. Prison officials reportedly canceled the execution and discussed taking him to the hospital before he died from a heart attack 40 minutes after the execution started. In July 2014, Arizona attempted to execute Joseph R. Wood III with a drug combination that also included Midazolam. Witnesses said he gasped, snorted, and convulsed for more than an hour after the drugs were injected. The execution was slated to last 10 minutes but lasted nearly two hours. In December 2016, Alabama attempted to execute Ronald Bert Smith using the drug. According to reports, the execution “went awry” after it was administered. Thirteen minutes after the drug was administered, reports stated that he appeared to be struggling for breath, clenched his left fist, while his lips moved and one eye appeared to be slightly open. The execution lasted 34 minutes.
Alvogen said if the drug is used in the execution the company will suffer immediate and irreparable harm, according to the lawsuit.
In the lawsuit, Alvogen asks for a temporary restraining order and preliminary or permanent injunctive relief preventing the use of any drug manufactured by the company, including Midazolam, in carrying out any capital punishment. The company is also asking the department of corrections to return all of the Midazolam to Alvogen and an impoundment of the 90 vials of the drug pending a hearing.
Dozier was convicted of a murder in Arizona and in Nevada. He repeatedly said he wants his sentence carried out despite if it is painful. Dozier also suspended his court appeals.
His execution would be the first in Nevada since 2006.
A hearing on the matter has been scheduled for 9 a.m. Wednesday.
Copyright 2018 KVVU (KVVU Broadcasting Corporation). All rights reserved. The Associated Press contributed to this report.