RENO, Nev. (News 4 & Fox 11) — UPDATE: July 25, 2018
Prison officials are asking the state Supreme Court to overrule a judge's delay of Nevada's first execution in 12 years after a drug company sought to block the use of its product.
The appeal filed Wednesday comes two weeks after twice-convicted killer Scott Raymond Dozier's lethal injection was postponed for a second time.
This is a developing story. Check back with us for updates.
UPDATE: July 11, 2018
Judge Elizabeth Gonzalez ordered a temporary injunction against the Nevada Department of Corrections from using the sedative Midazolam.
The Nevada Department of Corrections confirmed hours after the ruling that Dozier's execution would be postponed until further notice.
Drugmaker Alvogen filed a lawsuit that went before a judge Wednesday seeking to prevent its sedative midazolam from being used in a lethal injection for twice-convicted killer Scott Raymond Dozier.
Alvogen attorney Todd Bice says the state duped its regular pharmaceutical distributor, Cardinal Health, into selling the drug after Alvogen made clear that it opposed the use of its products in executions.
Assistant Solicitor General Jordan Smith says Nevada never tried to hide its purpose. He said Alvogen didn't have a contract in place with Cardinal Health that would have blocked the drug's sale for executions.
Alvogen issued the following statement regarding the use of its drug in execution protocol and today's decision:
Alvogen is a leading global pharmaceutical company that provides medicines to improve the lives of patients around the world.
While Alvogen does not take a political stance on executions, Alvogen endorses the use of its products in accordance with FDA-approved indications; and does not condone the use of any of its drug products, including midazolam, for use in state sponsored executions.
To avoid any improper, off label use of our products in executions, Alvogen does not accept direct orders from prison systems or departments of correction. Alvogen also works with its distributors and wholesalers to restrict any sale, either directly or indirectly, of our midazolam product to any prison system or department of corrections.
Upon learning of the Nevada Department of Corrections’ intent to use Alvogen’s midazolam in an execution scheduled for July 11, 2018, Alvogen filed a complaint with the Clark County District Court alleging the NDOC fraudulently obtained this drug to be used in this execution. Alvogen also filed a temporary restraining order seeking to block the use of Alvogen’s midazolam in the execution. A hearing was held this morning and the court granted the TRO. Alvogen is pleased with the court’s decision and will continue to work through the judicial process to ensure Alvogen’s products are not used in executions.
News 4-Fox 11 has reached out the Nevada Attorney General's Office about the State's legal options, and a spokesperson deferred comment to the Nevada Department of Corrections.
According to the Nevada division of the American Civil Liberties Union (ACLU), Judge Gonzalez called for 120 days of discovery in this case, with a status hearing slated for 60 days from now.
ACLU officials told News 4-Fox 11 a vigil in protest of Dozier's execution that was scheduled for this evening in Carson City has been cancelled.
UPDATE: July 10, 2018
A hearing has been scheduled for Wednesday in Las Vegas regarding the use of the proposed drug for Scott Dozier’s execution.
Alvogen filed suit on Tuesday, July 10, hoping to block its Midazolam product from being used in Dozier's execution.
The suit alleges that the State of Nevada illegitimately acquired the drug and that Midazolam is not approved for use in executions.
Alvogen says they sent Nevada Governor Brian Sandoval, Attorney General Adam Laxalt and Nevada Department of Corrections director James Dzurenda on April 20, 2018 saying that Midazolam should not be used for executions.
In May, NDOC bought the drug from its normal pharmacy supplier, Cardinal Health, according to a spokeswoman.
Judge Elizabeth Gonzales will hear arguments from both sides in courtroom 3E of the Las Vegas Regional Justice Center at 9 a.m. i
Read the full lawsuit below:
Alvogen makes one of the drugs that will be used in Scott Dozier’s execution.
Below is a statement from spokesperson Halldór Kristmannsson:
"Alvogen does not market, promote or condone the use of any of its approved prescription drug products, including midazolam, for use in state sponsored executions. To avoid any improper, off label use of our products, Alvogen does not accept direct orders from prison systems or departments of correction. Alvogen works with our distributors and wholesalers to restrict any resale, either directly or indirectly, of our midazolam product to any prison system or department of correction.
With respect to the alleged intent of the State of Nevada Department of Corrections to use our midazolam product in an execution, we are exploring all potential avenues, including legal recourse, to prevent the improper use of our product in this particular execution.”
ORIGINAL STORY: July 9, 2018
Nevada is just two days away from executing its first inmate in over a decade, but questions still linger about the controversial three-drug lethal injection combination the Department of Corrections plans to use.
After NDOC's supply of the sedative Diazepam recently expired, the state obtained adequate dosages of the sedative Midazolam, which has been linked to multiple botched executions in other states.
The new sedative drug Midazolam was made by the pharmaceutical company Alvogen, and distributed by Cardinal Health, according to a sales invoice obtained by News 4.
According to the Lethal Injection Information Center, "Alvogen is working to ensure that its distributors and wholesalers do not resell, either directly or indirectly, [Alvogen products] to prison systems or departments of correction.”
Midazolam has factored into botched executions in Ohio, Oklahoma, Arizona and Alabama, according to the nonprofit and nonpartisan Death Penalty Information Center.
The sedative was also used in an April 2017 Arkansas execution where witnesses described the inmate "coughing, convulsing, lurching and jerking."
Kelly Kissel, a longtime Associated Press news editor and the current metro editor at The Advocate, has witnessed over 10 executions, including the recent Arkansas one.
"Three or four minutes into the execution was when he started lurching forward. His forehead was pressing against the restraint that was around his forehead," Kissel said.
"For lack of a better term, it was the most violent execution that I had seen."
According to DPIC, the use of Midazolam factored into an Alabama inmate "heaving and gasping for breath" for about 15 minutes.
Both Florida and Arizona recently abandoned the use of Midazolam in three-drug lethal injection combinations.
Questions remain about the other drugs in the lethal injection combination — the opioid Fentanyl and the paralytic Cisatracurium.
The paralytic element Cisatracurium was the focus of court challenges late last year, with critics arguing that the drug would mask signs of possible suffering, or lead to so-called air hunger.
Fentanyl is in both Nevada and Nebraska's execution protocols, but has never been used in an execution in the United States.
Nevada plans to execute convicted murderer Scott Dozier, now 47, on July 11th at 8:00 p.m. at the Ely State Prison.
Dozier has voluntarily waived all his appeals and maintains that he wants to be executed.