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2nd drug company wants to join appeal seeking to stop Nebraska execution

August 12, 2018

LINCOLN — A second major pharmaceutical manufacturer wants to join a federal lawsuit seeking to stop Tuesday’s execution in a dispute involving Nebraska’s lethal injection drugs.

Sandoz Inc. said in court documents filed Saturday that it believes Nebraska prison officials may possess one of its drugs, which the manufacturer does not want used in Tuesday morning’s execution of Carey Dean Moore. Sandoz has filed a motion to intervene in a federal lawsuit filed late Tuesday by a different drugmaker.

Senior U.S. District Judge Richard Kopf scheduled a hearing for 10 a.m. Monday in Lincoln to consider Sandoz’s complaint.

On Friday, Kopf soundly rejected claims that prison officials had illegally obtained drugs made by the Germany-based Fresenius Kabi for use in the execution. The company filed an emergency appeal of the ruling with the 8th U.S. Circuit Court of Appeals in St. Louis.

Also Saturday, lawyers with the Nebraska Attorney General’s Office argued that the appeal should be dismissed because denials of temporary restraining orders may not be appealed. In other words, the state argued that the 8th Circuit doesn’t have jurisdiction to even hear the appeal by Fresenius Kabi.

It’s unclear when the court will rule in the matter.

The flurry of legal activity comes as Nebraska approaches its first execution in 21 years and its first-ever lethal injection.

Moore was sentenced to die for the 1979 killings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland. The 60-year-old Moore, one of the longest-serving death row inmates in the country, is not participating in the drug company litigation and has said he wants to be executed after 38 years in prison.

Nebraska officials have withheld information about the makers and suppliers of the four drugs it intends to use to execute Moore. The drugs are diazepam, fentanyl, cisatracurium and potassium chloride.

Because the fourth drug expires on Aug. 31, the state’s lawyers argued Friday that granting a restraining order to delay the execution would prevent the state from carrying it out altogether.

Kopf strongly agreed with the state’s case. He said delaying the execution would frustrate the will of the majority of Nebraska voters who overturned a legislative repeal of capital punishment in 2016.

Both drug companies produce the drug cisatracurium, a powerful muscle relaxant that the state wants to use to stop Moore’s ability to breathe. Both say that while they take no position on the death penalty, using their products in executions will cause them serious financial harm.

Sandoz said if the court won’t agree to block the state from using the drug, it should order the state to identify which company made the medication.

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