Drug companies drop lawsuit to keep Nebraska from using their products in executions

August 30, 2018 GMT

LINCOLN — Two pharmaceutical manufacturers will suspend their legal fight to prevent Nebraska from using their products in lethal injection executions.

Fresenius Kabi filed a notice Wednesday in U.S. District Court for the voluntary dismissal of a lawsuit that unsuccessfully tried to keep Nebraska from using drugs that the company believed were its in the Aug. 14 execution of Carey Dean Moore. Sandoz Inc. withdrew a motion to intervene in the same lawsuit.

Both companies made a late attempt to keep the state from going ahead with Moore’s execution, arguing that they would suffer serious financial harm if their products were linked to a lethal injection.

Nebraska carried out its first lethal injection using diazepam, fentanyl, cisatracurium and potassium chloride. Fresenius Kabi presented evidence that the potassium chloride was its product, while Sandoz argued that the cisatracurim could have been made at one of its plants.

Lawyers with the state argued that prison officials obtained the drugs legitimately, and the state refused to halt the execution.

The state’s supply of potassium chloride will expire Friday, and the cisatracurium expires Oct. 31. Although prison officials have said they are working to obtain fresh supplies, they also recently said they have no immediate source to replace the drugs.

Like many drug companies, Fresenius Kabi and Sandoz require their suppliers to sign contracts preventing the sale of their products for use in capital punishment.

Just days before the execution, Senior U.S. District Judge Richard Kopf denied a restraining order sought by Fresenius Kabi. The judge said he would not frustrate the will of Nebraska voters, 61 percent of whom voted in 2016 to overturn a legislative repeal of capital punishment.

The judge’s ruling was upheld on appeal by the Eighth U.S. Circuit Court of Appeals. Company officials decided not to appeal to the U.S. Supreme Court.

Moore, 60, was put to death with the four-drug combination after spending 38 years on death row. He was convicted of the 1979 slayings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland.

Nebraska had gone 21 years between executions. The last one was carried out with the electric chair before the method was ruled unconstitutional in the state.