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Nebraska ignored drug manufacturers demands to return execution drugs

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Carey Dean Moore execution

Nebraska State Patrol cruisers are parked outside the main entrance to the Nebraska State Penitentiary on Tuesday, Aug. 14, 2018, as the state executed Carey Dean Moore.

Less than three weeks before the fentanyl made by a company based in London was used to carry out an execution in Nebraska in 2018, its top executive fired off a letter to Gov. Pete Ricketts, Attorney General Doug Peterson and Corrections Director Scott Frakes.

The letter was to "remind you again" on Hikma's position on the misuse of their products.

"We object in the strongest possible terms to the use of any of our products for the purpose of capital punishment," said Daniel Motto, executive vice president of Hikma/West-Ward Pharmaceuticals.

He said it was the company's understanding the Nebraska Department of Corrections may possess fentanyl made by Hikma and that it may be used in a pending execution.

Execution Drugs

Documents released Thursday included photographs of vials of the drugs used in the execution of Carey Dean Moore in August 2018.

He asked for the immediate return of the drugs "unless the State of Nebraska is prepared to provide to us an original raised-seal copy of an affidavit signed by the governor or attorney general certifying it would only be used for patient care.

"The use of these products in executions would represent a serious misuse of life saving medicines," Motto said.

And he wasn't alone.

Records released Thursday, as the result of three lawsuits filed by the Lincoln Journal Star, Omaha World-Herald and the ACLU of Nebraska, revealed the manufacturers of each of the drugs in the state's unique four-drug cocktail used Aug. 14, 2018, to execute Carey Dean Moore.

The records also showed that Community Pharmacy in Gretna, which had a contract with the Department of Corrections to manage its pharmacy, purchased the drugs for the state.

The department paid Community Pharmacy $492,000 for the two-year contract that ran from Oct, 1, 2016, to Sept. 30, 2018, plus $400 for temporary staffing by a pharmacy technician in August 2017, the contract showed.

All of the manufacturers for those drugs have objected to them being used in executions.

One of the companies, Fresenius Kabi, had sued in 2018 to delay Moore's execution because it believed its drugs were to be used, but was turned down by both a federal district court and appeals court. The records request revealed that two of its drugs, cisatracurium, a muscle relaxant, and potassium chloride, which stops the heart, were used in Moore's death.

Carey Dean Moore execution

Scott Frakes (left), director of Nebraska Department of Corrections, delivers a statement after the execution of Carey Dean Moore in August 2018. In the background are three of the four media witnesses: Chip Matthews (from left) of News Channel Nebraska, Joe Duggan of the Omaha World-Herald and Brent Martin of Nebraska Radio Network.

The company's position is that it does not allow the sale of certain drugs to correctional facilities. For its products made in Europe, the unauthorized use of them for lethal injection could also lead to sanctions by the European Union and could threaten the U.S. supply of important drugs, potentially putting patients at risk.

Reached Friday, two others — Hikma and Pfizer — both said they also asked the state to return their drugs, which didn't happen.

Pfizer said in a statement Friday it makes its products to enhance and save the lives of the patients it serves.

"We strongly object to the use of any of our products in the lethal injection process for capital punishment," said Pfizer spokeswoman Sally Beatty. "Since 2016, we have informed the Nebraska Department of Correctional Services on multiple occasions that Pfizer strongly objects to the use of its products as lethal injections for capital punishment."

Execution Drugs

A label for one of the drugs used in the execution of Carey Dean Moore in August 2018.

She said the company asked the department to return any Hospira or Pfizer manufactured restricted product in their possession and provided them with procedures to follow to return for a full refund.

Teva, which manufactured the hydromorphone, a strong opioid painkiller purchased by the state initially for use as a lethal injection drug but not used, took a stand in 2013 that its drug propofol not be used in executions. It wanted to limit its sale and distribution to customers who agreed to use best efforts not to sell or distribute it to correctional facilities.

Laura Strimple, Corrections Department chief of staff, was asked whether the department has purchased lethal injection drugs since those purchased for the Moore execution have expired, or how actively the department is attempting to purchase drugs.

Execution Drugs

A package containing one of the drugs used in the execution of Carey Dean Moore in August 2018.

"It is the responsibility of NDCS to carry out the order of the court, which includes continuing to pursue procuring the necessary substances," Strimple said.

Gov. Pete Ricketts said Friday at a news conference his administration will continue to carry out the sentences the court ordered and the people of Nebraska support using the current execution protocol.

The protocol, created in 2016, says the director will determine which drugs and their quantities would be used for lethal injection. The drugs can be directly purchased or obtained through the pharmacy department or other sources, including pharmaceutical or chemical compounding.

Death row inmate Jose Sandoval was notified in late 2017 of the lethal injection drugs that would be administered in his death if an execution takes place. Those drugs were to be the same as those used in Moore's execution.

Community Pharmacy, which contracted with the Department of Corrections leading up to and during the time of Moore's execution, would not answer questions on whether it violated the policies of drug manufacturers by purchasing the drugs for purposes of lethal injection, or whether it could be held liable or sued for those purchases.

"The statement from Dr. Kyle Janssen (Thursday) is our only statement," the pharmacy responded.

Execution Drugs

A box containing one of the drugs used in the execution of Carey Dean Moore in August 2018.

With the contract, Community Pharmacy had oversight of 10 facilities, including managing and reviewing medications, records inventory, logs, quality control checks and prescriptions.

Strimple said the department now oversees its pharmacy.

The Gretna company posted its statement regarding its involvement with supplying the lethal injection drugs on its website, Facebook and Twitter. Comments on Facebook ranged from defending the company for simply fulfilling a contract to shaming it and asking if the company would refund the money if it really regretted its decision to supply those drugs.

Reach the writer at 402-473-7228 or jyoung@journalstar.com

On Twitter @LJSLegislature

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