A drug manufacturer filed suit Tuesday in an effort to stop Wednesday’s execution of convicted murderer Scott Dozier.
Alvogen Inc., which manufacturers the sedative midazolam, filed a “complaint for emergency injunctive relief and return of illegally obtained property” in Clark County District Court.
“Defendants acquired that drug despite a clear and unambiguous prior warning from Alvogen they could not acquire it directly from Alvogen and could likewise not legitimately acquire it through a third-party distributor,” the complaint alleges.
The company argues that it would suffer “immediate and irreparable harm” should the execution proceed. The execution by lethal injection is set for 8 p.m. Wednesday at Ely State Prison.
“Midazolam is not approved for use in such an application,” according to the lawsuit. “Past attempts by other states to use the medicine in lethal injections have been extremely controversial, and have led to widespread concern that prisoners have been exposed to cruel and unusual treatment. Several attempts have been characterized by media as ‘botched’ executions.”
Named as defendants in the lawsuit are the state of Nevada; the Nevada Department of Corrections, its director and medical examiner; and the execution’s attending physician, who has not been identified.
“NDOC has been advised not to comment on the lawsuit,” department spokeswoman Brooke Santina said in an email Tuesday.
District Judge Elizabeth Gonzalez held a brief hearing Tuesday afternoon. 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.
Assistant Solicitor General Jordan Smith, who represents the prison system, is expected to argue via video conference from Ely at Wednesday’s hearing.
Officials plan to use a three-drug cocktail of midazolam, the painkiller fentanyl and the paralytic cisatracurium for Dozier’s execution. That combination of drugs has never been used in an execution.
In its complaint, the drug company demands the immediate return of the state’s supply of midazolam, arguing that the sedative was purchased “by subterfuge with the undisclosed and improper intent to use it for the upcoming execution in complete disregard of plaintiff’s rights.”
Last year, the Food and Drug Administration confiscated execution drugs from Texas and Arizona that had been wrongly purchased from India, according to news reports at the time.
Dozier was sentenced to die in 2007 for first-degree murder with a deadly weapon and robbery with a deadly weapon in the slaying of Jeremiah Miller.
Miller’s torso was found on April 25, 2002, in a suitcase that had been dumped in a trash bin at the Copper Sands apartment complex in the 8100 block of West Flamingo Road.
It was Dozier’s second killing.
He was convicted of second-degree murder in the Arizona slaying of Jasen “Griffin” Greene and sentenced to 22 years in prison in 2005, before he was brought to Nevada to face charges in Miller’s death.
Lauren Kaufman, staff attorney with the American Civil Liberties Union of Nevada, which filed a separate lawsuit last week seeking public records related to the state’s lethal injection procedures, said the group was anticipating Wednesday’s arguments.
“We’re glad that the state is being held accountable and that the information regarding these execution drugs and how the state plans to proceed is open and transparent,” she said.
Las Vegas defense attorney Scott Coffee, who analyzes death penalty cases across the country, pointed to the drug company’s reference to irreparable harm and said that even if the judge denies Alvogen’s request, the company could pursue the claim with a higher court.
“Now you’ve got someone who can actually make a claim of standing if this goes forward,” Coffee said. “And that’s what you need is some kind of tangible injury.”