Pharmaceutical company Fresenius Kabi USA sued for a temporary restraining order and a permanent injunction to stop Nebraska from executing convicted double murderer Carey Dean Moore on Aug. 14 using potassium chloride the company 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 the lawsuit.
Citing potential damage to investor and business relations, along with increased scrutiny from FDA and European Union regulators, the suit lists counts of tortious interference with a business relationship and violations of the Commerce Clause and due process in requesting the injunction, and a writ of replevin to obtain drugs it manufactured.
Nebraska Attorney General Douglas Peterson, a Republican, responded to the filing with a statement that claims that the state has done nothing illegal.
“Nebraska’s lethal injection drugs were purchased lawfully and pursuant to the state of Nebraska’s duty to carry out lawful capital sentences,” Peterson said.
Beginning in 2017, Nebraska adopted a new protocol and refuses to identify its sources of 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. Although a judge in Lincoln required the state to comply with records requests, that case is currently on appeal and corrections officials still refuse to reveal how and from where they obtained the drugs.
Previously, the state was foiled in its attempts to import drugs from a pharmaceutical compounder in India.
Despite the state’s obstinance, Fresenius Kabi deduced that Nebraska’s potassium chloride supply was manufactured in one of its facilities. As detailed in the complaint, the potassium chloride Nebraska intends to use in the Aug. 14 execution is stored in 30-milliliter vials and Fresenius Kabi is the only manufacturer that produces potassium chloride in that measurement.
“These drugs, if manufactured by Fresenius Kabi, could only have been obtained by [Nebraska] in contradiction and contravention of the distribution contracts [Fresenius Kabi] has in place and therefore through improper or illegal means,” the company alleges in its suit.
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 to officials that its drugs are only to be used for “life-sustaining or lifesaving purposes.”
The company sent a letter to Nebraska Gov. Pete Ricketts, also a Republican, on July 24 requesting the return of its products in exchange for a refund. The state has yet to reply to this demand, the company says.
As far back as 2015 the company was aware one its distributors mistakenly sold potassium chloride to the Nebraska Department of Corrections. At the time, assistant legal counsel for corrections Mark Boyer made assurances that the drug was only used to treat the medical conditions of prisoners. In fact, the Nebraska Legislature had recently repealed the death penalty, although it was reinstated via a ballot initiative the next year. Referendum 426 passed with 60 percent of the vote.
The lawsuit was filed by attorney Mark A. Christensen of the Lincoln law firm Cline Williams Wright Johnson & Oldfather LLP.