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Sandoz seeks to intervene in drug manufacturer’s Nebraska execution lawsuit

August 12, 2018

Another drug company has jumped into the last-minute flurry of legal protests of the state’s lethal injection drugs.

Sandoz Inc. filed a brief Saturday in federal court asking to intervene in a lawsuit filed last week by drug manufacturer Fresenius Kabi. U.S. District Court Judge Richard Kopf ruled on that complaint Friday afternoon, denying a temporary restraining order and allowing the execution of Carey Dean Moore to go forward as planned on Tuesday.

Fresenius Kabi has appealed, and Sandoz’s motion to intervene will be heard by Kopf on Monday at 10 a.m.

Sandoz is a manufacturer of cisatracurium, a muscle relaxant, and wants to force the state to identify the manufacturer of the drug to be used in Moore’s execution.

“The use of cisatracurium in this unauthorized manner will cause substantial reputational and other harm to Sandoz, and compromise Sandoz’s longstanding efforts to ensure its products are not used for capital punishment,” the complaint said.

The drug has never been used in an execution, nor tested or approved for that purpose, the company said.

“The proposed misuse of the drug in executions is therefore experimental and without precedent establishing that it can be administered without causing unconstitutional suffering,” it said.

Sandoz seeks an injunction to require the Nebraska Department of Corrections to disclose the drug’s manufacturer and distributor.

Sandoz has for years been steadfast in disallowing use of its drugs for off-label use for lethal injection, the company said. In 2011 it took steps to prevent the sale of sodium thiopental in the U.S., a drug frequently used in lethal injection cocktails.

In 2013 it put restrictions on rocuronium bromide to prevent its capital punishment use. In 2017 it put those restrictions on Anectine, a paralytic. That same year, it began to add distribution restrictions for cisatracurium when customer agreements came up for renewal.

Sandoz sent a letter to Corrections Director Scott Frakes this year, and a second one to Frakes, Gov. Pete Ricketts and Attorney General Doug Peterson in August, objecting and requesting they immediately disclose whether the cisatracurium to be used in Nebraska’s protocol was manufactured by Sandoz.

The drug is made by multiple companies.

In his ruling on the Fresenius Kabi lawsuit, Kopf said he did not believe its reputation would be irreparably harmed if the execution proceeds using the drugs cisatracurium and potassium chloride, which the company believes are from its supplies.

But the state of Nebraska would be “greatly and irreparably harmed,” he said, if he stopped the execution.

-- JoAnne Young

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