German pharmaceutical company Fresenius Kabi had argued Nebraska cannot use its drugs to carry out an execution. A judge ruled that the execution can go ahead.
German pharmaceutical company Fresenius Kabi's argument that Nebraska illicitly obtained its drugs is not enough to prevent the US state from conducting an execution by lethal injection, US District Judge Richard Kopf ruled on Friday.
On Tuesday, state prison officials are scheduled to execute Carey Dean Moore, one of the nation's longest-serving death row inmates, using a four-drug cocktail. It will be Nebraska's first execution since 1997. Moore has stopped fighting the state's efforts to execute him.
As some 61 percent of people in Nebraska chose to reinstate capital punishment in 2016, Kopf said halting the execution would "frustrate the will of the people."
"I will not allow the plaintiff to frustrate the wishes of Mr Moore and the laws of the state of Nebraska," Kopf said.
A case based on packaging
Fresenius Kabi's lawyers said they would appeal the ruling. They had argued that the state should not have gained access to their drugs because it opposes the use of its products in executions.
Moore is scheduled to be executed with a combination of four drugs that have never been used together: the sedative diazepam, commonly known as Valium, to render him unconscious; fentanyl citrate, a powerful synthetic opioid; cisatracurium besylate to induce paralysis and halt his breathing; and potassium chloride to stop his heart.
Fresenius Kabi argued that it manufactured the potassium chloride and possibly the cisatracurium. It remains unclear where the drugs actually come from because Nebraska officials have refused to identify their source. Fresenius Kabi maintains it is the only company to package the drugs in the 30-milliliter bottles the state said it obtained legally.
A state judge ordered prison officials in June to release documents that might reveal the source of the drugs, but the state has appealed that ruling.
Nebraska left without drug supplier
As the source of the drugs remains uncertain, Kopf said Fresenius Kabi's concerns were too speculative to halt the execution.
"I can't say, in any way, that the public interest favors the plaintiff," the judge said referring to the drugmaker, according to television station WOWT.
Fresenius Kabi said Nebraska's use of its drugs would damage its reputation and business relationships. The company said it takes no position on capital punishment, which has been abolished in the European Union.
In an affidavit filed Thursday, Department of Correctional Services Director Scott Frakes said he contacted at least 40 suppliers in six states and found only one that agreed to provide his agency with the necessary drugs. But that supplier is unwilling to sell them any more of its drugs. The state also noted that one of its protocol drugs expires on Aug. 31, which will leave the state with no way to carry out future executions.
Last month, a judge in Nevada permanently postponed an execution by lethal injection after drugmaker Alvogen filed a similar lawsuit over the use of its drugs.
sms/cw (AP, AFP)