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Drugmaker Loses Bid to Block Nebraska Execution

Deferring to “the will of the people,” a federal judge on Friday denied a request by a pharmaceutical company to stop a planned execution of a Nebraska inmate by lethal injection of drugs made by the company.

LINCOLN, Neb. (CN) – Deferring to “the will of the people,” a federal judge on Friday denied a request by a pharmaceutical company to stop a planned execution of a Nebraska inmate by lethal injection of drugs made by the company.

The execution slated for Tuesday will be Nebraska’s first since 1997.

Finding public interest outweighs “corporate self-interest,” U.S. District Judge Richard G. Kopf repeatedly referenced “the will of the people” in his analysis.

“Many people of good faith object to the death penalty. However, the electoral processes of Nebraska have worked as they were intended. The Nebraska Legislature decided to kill the death penalty, and after that, and very recently, the people decided to resurrect it,” he wrote, beginning his remarks by asserting that “the time has come.”

Pharmaceutical company Fresenius Kabi USA sued Nebraska late Tuesday seeking a temporary restraining order and a permanent injunction on the state’s use of two drugs the company manufactures that it says was obtained illegally.

“Fresenius Kabi and the companies with which it is affiliated across the globe will suffer great reputational injury in the event its drugs are used for the administration of capital punishment,” the company says in its lawsuit, citing potential damage to investor and business relations and increased scrutiny from the U.S. Food and Drug Administration and European Union regulators.

Assistant Nebraska Attorney General Ryan S. Post argued there was no evidence the company would suffer reputational harm, as the state has not disclosed the source of the four-drug cocktail it intends to use to put inmate Carey Dean Moore to death. Post said “commercial interests do not outweigh the state’s interest in carrying out a death sentence” and that it’s against public interest to allow a company to block the state from carrying out its constitutional duty.

Adding urgency to the proceedings, Nebraska’s supply of potassium chloride will expire Aug. 31, according to an affidavit filed by director of Correctional Services Scott R. Frakes.

Reading from his order, Kopf remarked, “While he is not a party, Carey Dean Moore is at the center of this lawsuit. Legal realism and common decency require that he not be forgotten.”

Moore was convicted of murdering two taxi drivers in 1979 and has spent nearly four decades on death row. The Nebraska Supreme Court has approved execution dates for Moore eight times.

The fact that Moore has expressed his wish that his death sentence be carried out and went as far as requesting that his court-appointed attorneys be dismissed weighed heavily on the decision.

“There is absolutely no doubt of his competence or his guilt. I will not allow the plaintiff to frustrate Mr. Moore and the laws of the state of Nebraska by plaintiff’s last-minute lawsuit,” Kopf said.

Fresenius Kabi’s attorney Mark A. Christensen of the Lincoln firm Cline Williams rejected the notion that this was last-minute lawsuit, pointing out the company has made repeated attempts to verify that Nebraska is not in possession of its drugs. State officials rebuffed those efforts, refusing to respond to requests for information about the source of its drugs, Christensen said.

“If they’re not our drugs, tell us,” Christensen said. “The case would be moot.”

However, Judge Kopf sided with the state and found the pharmaceutical company cannot show it will be harmed if it can’t prove the state will use drugs it manufactured.

“Unless Director Frakes is lying” about the fact that the state did not use illegal or improper means to acquire the drugs, Kopf noted, Fresenius Kabi will have a “rough row to hoe” in proving the merits of its claims.

Christensen said in court that he intends to file an expedited appeal to the Eighth Circuit on behalf of his client.

Fourteen states joined the proceedings as interested parties. Last month, the drugmaker Alvogen sued Nevada over its plans to use the company’s midazolam in a planned execution. A federal judge there delayed the execution indefinitely while the case plays out.

Beginning in 2017, Nebraska adopted a new protocol for capital punishment and now refuses to identify its sources for the four drugs it uses in its so far untried lethal cocktail, claiming that such information is an exception to public records laws – a policy that has spurred lawsuits from media outlets and the ACLU for the information. An appeal of a district court order for the state to comply with records requests is pending.

While it holds no official position on capital punishment, Fresenius Kabi – a subsidiary of the German health care group Fresenius SE & Co. – opposes the use of its products in lethal injection and imposes controls on how certain drugs can be sold and distributed in order to keep them out of the hands of corrections officials who intend to use them for lethal means. The company has communicated that its drugs are only to be used for “life-sustaining or lifesaving purposes.”

If no other court intervenes, Moore’s execution is scheduled for 10 a.m. on Tuesday, Aug. 14.

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