The makers of ketamine, a drug planned for the execution of convicted killer Zane Floyd, have demanded that Nevada prison officials return the supply before the lethal injection scheduled for next month.
A lawyer for Hikma Pharmaceuticals wrote in a cease-and-desist letter to Attorney General Aaron Ford on Thursday that the Nevada Department of Corrections obtained 50 vials of ketamine illegally.
“NDOC’s purchase and intended use of Hikma’s products for capital punishment is in violation of state and federal law, in knowing violation of Hikma’s property and proprietary interests in its products, and these actions will cause significant damage to Hikma’s business reputation and the interests of its investors,” Hikma’s lawyer, Josh Reid, wrote in the nine-page letter obtained by the Review-Journal.
The prison system’s lethal injection cocktail calls for an injection of painkillers fentanyl or alfentanil, “depending on availability;” ketamine, an anesthetic; cisatracurium, a paralytic; and heart-stopping potassium chloride or potassium acetate, “depending on availability.”
A prison spokeswoman said this week that the department holds all the drugs listed in the execution protocol.
In a statement filed in federal court late Thursday, prison director Charles Daniels wrote that he had asked the department’s pharmacy director, Linda Fox, to purchase ketamine, fentanyl, alfentanil, cisatracurium, potassium chloride and potassium acetate “through ordinary transaction efforts,” which meant ordering the drugs online.
Floyd’s federal public defenders have argued that ketamine could cause “excessive secretions from the mouth” and vomiting and lead to a burning sensation in Floyd’s veins and lungs.
According to the letter and drug purchase invoices, the prison system purchased Hikma’s ketamine through wholesaler Cardinal Health last month.
The letter asks for a written confirmation from Ford that the drug will not be used for capital punishment.
Earlier court case
Less than three years ago, Hikma’s lawyers sued the state to ensure that another of its drugs, fentanyl, was not used in the planned execution of Scott Dozier, who had waived his appellate rights.
“This is not Hikma’s first rodeo with NDOC on this issue, and the OAG and NDOC are well aware of Hikma’s long history of opposing the purchase and misuse of its life-saving products for capital punishment,” Reid wrote. “It is nothing less than shocking, and embarrassing for the State of Nevada.”
Reid added that Hikma required a “raised seal copy of an affidavit signed by the state attorney general (or governor), certifying under penalty of perjury that the product(s) will not be used for capital punishment.”
Through a spokesman, Ford declined to comment on the demand. Prison officials could not immediately be reached.
Floyd shot and killed four employees and gravely wounded another inside an Albertsons on West Sahara Avenue in June 1999. He also was convicted of repeatedly raping a woman before the shooting. Now 45, he would be the first person executed in Nevada since 2006.
Last week, Floyd’s lawyers argued that the untested combination of drugs planned for his lethal injection would lead to “unconstitutional pain and suffering.”
Chief Deputy Attorney General Randall Gilmer filed an opposition on Thursday, arguing in part that Floyd’s lawyers did not cite any medical or scientific evidence that showed the proposed drugs would result in a painful execution.
In his opposition, Gilmer included statements from Daniels, Fox, doctors outside the prison system, including one who stated that the execution protocol was “likely to cause a death without significant pain or suffering.”
“Floyd relies solely on conclusory statements regarding what he or his counsel believe may occur if the NDOC Protocol is used,” Gilmer wrote. “On the other hand, NDOC provides this Court with undisputed medical and pharmaceutical evidence establishing that the NDOC Protocol will not result in unconstitutional pain or suffering—indeed, it is likely to result in very minimal to no pain.”
Gilmer also argued against a stay of execution, writing that prison officials provided the execution protocol as soon as it was finalized and that they have “acted ethically, above board, and, to the extent possible without waiving crucially important, and well-established privileges, in an open and public manner.”
In another brief filed this week, lawyers for the state’s chief medical officer, Ihsan Azzam, one of those tasked with obtaining the fatal prescription, joined the opposition to a stay of execution, while stating that Azzam had no authority in execution decisions.
“Director Daniels consulted with Dr. Azzam, who expressed his opinion about the execution,” attorneys Crane Pomerantz and Nadia Ahmed wrote. “Dr. Azzam played no role in the preparation of the execution protocol, and does not intend to play any role in the planning or carrying out of Mr. Floyd’s execution, if any, nor is he required to do so by statute.”
In early May, Gilmer pointed to a conflict of interest between Azzam and prison officials that came about in conversation, but details of the conflict have not been disclosed.
The drug purchase invoices show that the prison system’s efforts to stockpile lethal injection drugs date back as far as 2017, while Dozier’s case was still being litigated. He killed himself in January 2019, but two months later another death row inmate, Kevin Lisle, indicated that he wanted to give up his appeals.
By July of that year, the prison system had acquired ketamine from Par Pharmaceutical Inc. and potassium chloride through an undisclosed company, suggesting that the protocol for Floyd’s execution may have been in the works for nearly two years.
Gilmer has argued to keep the names of the drug companies secret, pointing to potential public harm, backlash, “copycats and cancel culture.”
But many pharmaceutical companies have written letters to governors and prison officials to request that their drugs not be used in executions, according to Robert Dunham, executive director of the Death Penalty Information Center.
Secretly obtaining execution drugs, he said, “delegitimizes the process. It shows that they care less about open government, public accountability, and the rule of law than they care about killing prisoners as fast as they can.”