Scott Frakes (left), director of Nebraska Department of Corrections, delivers a statement after the execution of Carey Dean Moore in August. In the background are three of the four media witnesses: Chip Matthews (from left) of News Channel Nebraska, Joe Duggan of the Omaha World-Herald and Brent Martin of Nebraska Radio Network.
Documents delivered to the Lincoln Journal Star on Thursday show a Nebraska pharmacy, Community Pharmacy of Gretna, sold the lethal injection drugs used in the execution of Carey Dean Moore two years ago, and understood they would be used for that purpose.
The owner of the company, Kyle Janssen, said in a statement that Community Pharmacy Services, which describes itself as a family-owned, small business dedicated to supporting long-term care facilities in their pharmacy needs, regretted its decision to sell those drugs to the Nebraska Department of Corrections.
In a deviation from its core business, Janssen said, the pharmacy was hired to manage the pharmacy operations for the state's prisons from 2016-2018. During the course of that contract, the state asked the company to legally sell lethal injection drugs to the department. The company fulfilled the order following all federal Drug Enforcement Administration protocols and procedures and understood the potential use of those drugs, Janssen said.
"Community Pharmacy Services has never supplied drugs since then to the Nebraska Department of Corrections or any other department of corrections, nor will it ever again" Janssen said. "I regretted the decision as it does not align with our company’s values to provide the best patient care and customer service to the long-term care industry."
It wasn’t immediately clear if the state of Nebraska or Community Pharmacy could face legal repercussions for the drugs being used to carry out the death penalty.
All of the makers of the drugs were on record prior to Moore’s execution saying they were against their products being used in that manner.
Invoices included in the 44 pages of documents released Thursday show the pharmacy charged the state $10,500 for the lethal injection drugs, which were delivered in October 2017. Costs for the drugs themselves, excluding any discounts, were listed at:
* Fentanyl — $48.
* Potassium chloride — $66.
* Diazepam — $439.
* Cisatracurium -- $3,756.
The four-drug combination used was unique, as three of the drugs — diazepam, fentanyl and cisatracurium — had never before been used in the execution of a condemned prisoner.
In emails released Thursday, Tyler Johnson, director of pharmacy operations for Community Pharmacy, told Corrections Department medical director Harbans Deol that since most of the products needed are rare in the world, the pharmacy would have to bill for "most all of it."
Once obtained, the drugs were analyzed by several laboratories, including the state Department of Agriculture.
According to photos of the packaging, the cisatracurium and potassium chloride obtained by the prison both were produced by Fresenius Kabi or a subsidiary, APP Pharmaceutical. Hospira made the diazepam, West-Ward Pharmaceuticals the fentanyl and Teva the hydromorphone, which was included in the documents as one of the drugs purchased for use in lethal injection.
A label for one of the drugs used in the execution of Carey Dean Moore in August 2018.
Days before the execution, Fresenius Kabi filed suit to prevent the state from using any of its drugs in a lethal injection. The company had obtained inventories that showed potassium chloride vials of the size only provided by Fresenius Kabi.
The company said if they were manufactured by Fresenius Kabi, they could only have been obtained through improper or illegal means.
U.S. District Court Judge Richard Kopf denied a temporary restraining order and the 8th U.S. District Court of Appeals refused to delay or block the use of the drugs in question.
Obtaining drugs for use in lethal injection has become more difficult over the years, prompting more frequent questions surrounding executions of the source of the drugs.
Fresenius Kabi in 2018 said it opposed the use of its products in lethal injection and since has established an authorized distribution program to try to prevent it.
Teva in 2013 announced it would limit the sale and distribution of an anesthetic called propofol, which was being used in executions, to customers who agree not to sell it to correctional facilities.
In 2010, Hospira stopped making sodium thiopental because it couldn’t guarantee its products wouldn’t be used in executions and said publicly it didn’t condone the use of its drugs for that purpose. Pfizer, which later acquired the company, came out in 2016 saying it “strongly objects” to the use of its products in executions.
In 2017, West-Ward filed a brief in a lawsuit filed by Arkansas inmates, saying the use of its medicines in lethal injections “runs counter to the manufacturers’ mission to save and enhance patients’ lives, and carries with it not only a public-health risk, but also reputational, fiscal and legal risks.”
The Corrections Department had withheld information on the lethal injection drugs from the media, and it took a lawsuit by the Journal Star, the Omaha World-Herald and ACLU of Nebraska to obtain the documents.
ACLU of Nebraska Executive Director Danielle Conrad said Thursday was another win for open government and the ACLU was proud to be a part of the effort to shine a light on the source of the lethal injection drugs used by the state "as it rushed to carry out an execution shrouded in secrecy from start to finish."
The public will now have an opportunity to review records after securing this historic win at the Nebraska Supreme Court earlier this summer, she added.
"But make no mistake, the public was entitled to these records all along and this case has been litigated since 2017," Conrad said. "I have no doubt that as we analyze these records more carefully in the coming days and weeks we will all learn more about the crucial context behind the state’s first execution by lethal injection."
The documents were made available by a Nebraska Supreme Court ruling and an order by Lancaster County District Court Judge Jodi Nelson Thursday afternoon.
Moore, who killed two Omaha cab drivers — Reuel Van Ness Jr. and Maynard Helgeland — was executed at the Nebraska State Penitentiary on Aug. 14, 2018, after a 21-year de facto moratorium on the death penalty in the state.
In May, the Nebraska Supreme Court ruled that documents about the state's attempts to acquire lethal injection drugs used to carry out the death penalty in 2018 — including the name of the drug supplier — cannot be withheld from the public.
Prisons Director Scott Frakes had refused to release certain documents about the drugs used in Moore's execution, including photos of drug packaging, purchase orders, emails between a prison employee and the drug supplier and between the Drug Enforcement Administration and the prison, and invoices related to the drugs.
Frakes had argued the release of the documents would lead to the identity of members of the execution team.
The Supreme Court said documents with execution team members' names or other identifying information could be redacted.
The lethal injection drugs — diazepam, fentanyl, cisatracurium and potassium chloride — are controlled substances and their use, storage and dispensing are governed by federal laws, Conrad said.
Nebraska Department of Corrections Chief of Staff Laura Strimple said in May the supply of lethal injection drugs acquired to carry out the execution of Moore had expired, and the state had not acquired any new drugs.
Another death row inmate, Jose Sandoval, received notification in 2017 of the lethal injection drugs that would be administered to cause his death if an execution takes place. No death warrant in his case has been issued.
Sandoval was convicted with Jorge Galindo and Erick Vela of shooting and killing Lisa Bryant, 29, Lola Elwood, 43, Samuel Sun, 50, all of Norfolk; Jo Mausbach, 42, of Humphrey; and Evonne Tuttle, 37, of Stanton; in a botched Norfolk bank robbery.
Reach the writer at 402-473-7228 or jyoung@journalstar.com.
On Twitter @LJSLegislature
