Nevada murderer's execution is blocked after drug company's lawsuit

Blanche Robertson
July 12, 2018

Dozier, 47, is not making legal challenges to halt his execution, telling the Las Vegas Review-Journal: "Life in prison isn't a life".

"Alvogen has undertaken controls to avoid diversion of this product for use in execution protocols", the company states on its website concerning midazolam.

A federal judge has called a hearing just hours before the killing is due to take place to listen to a demand by the drug manufacturer Alvogen for a block on the use of its sedative, midazolam, in putting to death Scott Dozier for murder.

A Nevada judge effectively put the execution of a two-time killer on hold Wednesday after a pharmaceutical company objected to the use of one of its drugs to put someone to death.

If the ruling sticks, Alvogen would become the first drugmaker to successfully sue to halt an execution.

In its filing, Alvogen says it could suffer immediate and irrefutable harm if the execution goes forward.

A Nevada prisons spokeswoman did not comment.

Nebraska is also considering the use of fentanyl in combination with other drugs for executions, according to the Death Penalty Information Center.

Nevada refused Pfizer's demand a year ago to return the company's diazepam and fentanyl, which has been blamed for overdoses nationwide but has not been used in an execution. The judge, who said she needed time to read the lengthy complaint and the accompanying application for a temporary restraining order, scheduled another hearing for 9 a.m. Wednesday.

Jordan T. Smith, an assistant Nevada solicitor general, countered at Wednesday's hearing that the state didn't put up a "smokescreen" or do anything wrong in getting the drugs.

Pharmaceutical companies have resisted the use of their drugs in executions for 10 years, citing legal and ethical concerns. But the legal challenge filed by Alvogen is only the second of its kind in the US, said Robert Dunham, executive director of the Death Penalty Information Center in Washington. He said drugs ordered by the state prison system are regularly shipped to Las Vegas.

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Alvogen said that Nevada law is clear that it is an offence to obtain a controlled drug "by misrepresentation, fraud, forgery, deception, subterfuge or alteration".

Midazolam has been used as a replacement for Valium - diazepam - after Nevada's stocks of the sedative expired, a Nevada Department of Corrections (NDOC) release said.

The health care supply company McKesson filed a similar lawsuit in Arkansas past year, but that challenge was rejected. Earlier that year, another inmate, Clayton Lockett, had been injected with midazolam, but instead of becoming unconscious, he twitched, convulsed and spoke. Fentanyl is used to slow the heart rate, sedate and continue to suppress breathing, and finally Cisatracurium to paralyze the inmate before death.

Alvogen learned from disclosures made in response to litigation by the Nevada Branch of the American Civil Liberties Union that the department of corrections acquired the drug from Cardinal Health, a distributor, through purchase orders from May 2018 that were to be completed in June 2018, according to the lawsuit. Dozier, who is on death row and is asking a judge to force the state to carry out his execution. In court hearings and letters, he said there is a limit to how much artwork and exercise a person can do in prison.

Dozier was convicted of first-degree murder in the death of Jeremiah Miller, who was killed and dismembered in 2002.

The lawsuit names the director of Nevada's department of corrections, James Dzurenda, and the state's chief medical officer, Dr Ihsan Azzam, as conspiring to buy the midazolam along with an unidentified doctor who will participate in the execution. Miller's torso was later found in a suitcase in a trash bin, local media reported.

Midazolam has been used with inconsistent results in states including Alabama, Arkansas, Arizona, Florida and Ohio.

He did, however, let federal public defenders review and challenge the execution protocol drawn up previous year by state medical and prison officials. A witness testified Dozier used a sledgehammer to break the victim's limbs so the corpse would fit in a plastic storage container.

It's unclear if there's enough opposition to stave off the execution, though the ACLU is looking into the legality of how Nevada obtained the fentanyl.

He did, however, let federal public defenders challenge the execution protocol drawn up past year by state medical and prison officials. Dunham noted the 2014 executions of Dennis McGuire in OH and Joseph Rudolph Wood III in Arizona left both inmates gasping and snorting before they died.

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