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Nebraska lethal injection

Nebraska's lethal injection chamber.

An Illinois-based pharmaceutical company has filed a lawsuit to prevent Nebraska from using lethal injection drugs next week in what would be the state's first execution since 1997.

The federal lawsuit filed late Tuesday by Fresenius Kabi, a manufacturer and supplier of intravenous generic drugs, said two of the drugs in Nebraska's execution protocol, cisatracurium and potassium chloride, are manufactured by the company. 

A hearing was scheduled for 3 p.m. Friday in U.S. District Court in Lincoln.

The lawsuit could delay Tuesday's scheduled execution of Carey Dean Moore, who was sentenced to death for killing two Omaha cab drivers in 1979. Moore has stopped fighting the state's efforts to execute him.

Nebraska Attorney General Doug Peterson responded Wednesday that the state's lethal injection drugs were purchased lawfully and pursuant to the state’s duty to carry out lawful capital sentences. Gov. Pete Ricketts said only that the "plan is to continue forward with the execution next week."

State officials have refused to identify the source of the drugs, and appealed a district court order to make public at least some information on the lethal injection drugs.

Fresenius Kabi said it has obtained inventories of the drugs in the possession of the department that include 30-milliliter vials of potassium chloride. It alleges that it's the only company with vials of the drug in that size.

Those drugs, if manufactured by Fresenius Kabi, could only have been obtained through improper or illegal means, the complaint said. 

The Nebraska protocol calls for the use of the two drugs, along with diazepam and fentanyl.

On July 24, Fresenius Kabi sent a letter to Ricketts requesting any of its drugs to be used in executions be returned without delay, and offered a full refund. To this day, the complaint said, the state has not returned the drugs or provided a "substantive response" to the letter. 

The company is asking for a temporary restraining order, and that the court permanently stop the department from using the drugs. It says it will "suffer reputational injury" and damage to business and investor relationships if its drugs are used in capital punishment. 

There is no urgency in conducting an execution, the complaint said. The department can wait longer to identify a method to put condemned inmates to death without using deceit or illegal or improper means to obtain drugs. 

The Department of Corrections reported in 2017 that it had on hand 10 20-milliliter units of cisatracurium, set to expire in October of this year; and 25 30-milliliter units of potassium chloride, set to expire this month.

The company noted that cisatracurium, if not stored under proper conditions — refrigerated at 36-46 degrees — could lead to adverse consequences for the person to whom it is administered. The Nebraska protocol provides the drugs be maintained at room temperature.

Potassium chloride, the company said, has been on the FDA drug shortage list since 2012, and stockpiling it for use in executions contributes to the shortage.

The company takes no position on capital punishment but opposes the use of its products in executions and does not sell certain drugs to correctional facilities, the complaint said. 

The company said it has specific distribution controls for eight products that have been identified for possible use in executions. Those include cisatracurium and potassium chloride. It sells those products to a limited number of wholesalers and distributors contracted to abide by requirements not to sell to prisons, other distributors, retailers or other resellers, or transfer in any way.

The drug manufacturer said it learned in 2015 that one of its distributors had mistakenly sold potassium chloride to the Nebraska Department of Corrections, and requested at that time that it be returned. 

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"The representative of the Department of Corrections advised that Nebraska had repealed the death penalty and there were no scheduled executions," the complaint said. "He refused to return the (potassium chloride) and said he was using the product to treat the state's patients."

Again in December 2016, the company sent a letter of concern about the potential use of its products in lethal injections.

The complaint by Fresenius Kabi refers to the department's refusal since November 2017 to identify execution drug manufacturers, and that the department has been sued by the Lincoln Journal Star, Omaha World-Herald and ACLU of Nebraska seeking the release of information about the source of the execution drugs.

Lancaster County District Court has ordered the department to release documents and records showing communications with suppliers, U.S. Drug Enforcement Administration records, invoices, inventory logs and photographs of packaging. Exempt from disclosure were purchase orders and chemical analysis reports that possibly could disclose names of execution team members. 

Omaha Sen. Ernie Chambers, who has long fought against the death penalty and has worked diligently in the past few weeks to stop the execution, said it was good news to him the complaint by Fresenius Kabi was filed. 

"Their name and the mission of their company are very important, and the court should consider that, as other courts have done," he said. 

Danielle Conrad, executive director of ACLU of Nebraska, commended Fresenius Kabi for intervening to ensure its products were not obtained illegally or used for illicit purposes and said such last-minute efforts would not be necessary if the department had complied with the state's open-records law.

Nebraska has joined 14 other states in siding with Nevada in a state Supreme Court fight against drug companies suing to prevent the use of their products to execute a condemned inmate. A Nevada execution was recently delayed after a drug company filed suit against that state for use of one of its drugs in a pending execution.  

Profiles of Nebraska death row prisoners' victims

Staff writer Lori Pilger contributed to this report.

Reach the writer at 402-473-7228 or jyoung@journalstar.com

On Twitter @LJSLegislature.

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State government reporter

JoAnne Young covers state government, including the Legislature and state agencies, and the people they serve.

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