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November 17, 2018

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Execution blocked after judge rules for drug company

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Steve Marcus

Judge Elizabeth Gonzalez listens to attorney Todd Bice, representing the drug company Alvogen, during a hearing in court Wednesday, July 11, 2018. Alvogen produces one the drugs to be used in the execution of Scott Dozier.

Updated Wednesday, July 11, 2018 | 2:22 p.m.

Drug Company Lawsuit

Lauren Kaufman, staff attorney with the Nevada ACLU, speaks to reporters after Judge Elizabeth Gonzalez used in favor of the drug company Alvogen at the Regional Justice Center Wednesday, July 11, 2018. Alvogen produces one the drugs that was to be used in the execution of Scott Dozier. Launch slideshow »

Nevada’s first state execution in 12 years was blocked today after a judge sided with a pharmaceutical company that objected to its drug being used in the lethal injection.

Clark County District Court Judge Elizabeth Gonzalez ruled in favor of drugmaker Alvogen, which sought an injunction to stop the state from using its sedative in the execution of Scott Dozier, scheduled for tonight at Ely State Prison.

It would have been the state’s first execution since April 2006.

The company argued that Nevada officials purposely avoided informing Alvogen they purchased the drug for an execution, infringing on its right to decide whether to do business with the state.

The company filed a lawsuit Tuesday to block the use of midazolam in a lethal three-drug cocktail approved for executions by the Nevada Department of Corrections.

The Department of Corrections put out a statement today saying the execution "will not take place until further notice."

In court this morning, Las Vegas attorney Todd Bice, representing Alvogen, argued Nevada officials knowingly skirted the drugmaker when it purchased the drug in May from Cardinal Health, which specializes in the distribution of pharmaceuticals and medical products.

Midazolam is most commonly used as a sedative before surgery in hospitals, but it has been used in 32 executions in six states since 2013, including two executions this year in Alabama.

Alvogen officials, however, didn’t know the drug would be used in the Nevada execution until last week, when the Department of Corrections released the information to the public, Bice said. Had they been aware, they would have refused to sell the drug to the state, he said.

Nevada Deputy Solicitor General Jordan Smith argued that Alvogen’s dispute is with Cardinal Health for selling the drug, not Nevada for buying it.

Bice said the drug was never approved by the U.S. Food and Drug Administration for executions and that using for that purpose is “the opposite of what this drug was manufactured for.”

“We are in the business of making and selling life-preserving medications and drugs,” Bice said. “This use is completely harmful and incompatible with our business.”

He also cited reports of midazolam being used in “botched” executions where the condemned person experienced seizures, waking and notable suffering for up to an hour before dying.

Gonzalez ultimately sided with the drugmaker and set another hearing for Sept. 10.

Attorney Lauren Kaufman of the state American Civil Liberties Union said the organization, which fought to have the state disclose the execution drugs, was “very pleased” with the ruling, which came less than nine hours before Dozier was set to die.

Dozier was convicted by a Clark County jury in 2007 and sentenced to death for killing 22-year-old Jeremiah Miller in 2002 over a botched drug deal at the now-defunct La Concha Hotel in Las Vegas.

In 2005, Dozier was sentenced to 22 years for the 2001 murder of 26-year-old Jasen Greene, another drug-trade associate who was found dead outside Phoenix.

Today’s ruling followed a lengthy court battle in which Dozier waived his right to appeal his sentence in October 2016 and asked to be put to death.

He was initially scheduled to die in November, but the execution was stayed while the state Supreme Court considered whether a never-used three-drug lethal cocktail of diazepam, fentanyl and cisatracurium could create inhumane conditions or fail when administered.

The court ruled May 10 to let the execution move forward. But the state’s inventory of diazepam expired and was replaced with the now-disputed midazolam.

Dozier would be the 52nd person in Nevada history to be executed since the state began documenting executions in 1903.

The Associated Press contributed to this report.