Updated July 11, 2018 - 8:20 pm
A drug company’s lawsuit halted the Wednesday night execution of condemned killer Scott Dozier about nine hours before he was set to die.
District Judge Elizabeth Gonzalez heard arguments in the civil case for about two hours before barring the Nevada Department of Corrections from using one of the three drugs it had planned to include in Dozier’s lethal injection.
The Department of Corrections later announced that it had postponed the execution.
“The execution, which was ordered by the court, will not take place until further notice,” according to the announcement.
Dozier, 47, was to be executed at 8 p.m. at Ely State Prison with a drug combination never before used in capital punishment. It would have been the first execution in Nevada since 2006.
District Judge Jennifer Togliatti signed Dozier’s execution warrant last month.
Alvogen Inc., which started distributing the sedative midazolam in August, filed a lawsuit Tuesday that accused the Department of Corrections of surreptitiously obtaining the drug for use in the execution.
In an April 20 letter distributed to governors, attorneys general and prison directors in each of the 31 states that carry the death penalty, the multibillion-dollar drug company “wrote in the clearest possible terms that Alvogen strongly objects to use of its products in capital punishment,” according to the lawsuit.
Within days of learning that their product was obtained by Nevada prison authorities, the company moved to stop the execution, arguing that Alvogen would suffer “immediate and irreparable harm” should it proceed.
Last week, the Department of Corrections disclosed its lethal injection procedures, revealing for the first time the planned use of the drug that had been banned in Arizona executions and decried by civil rights groups across the country.
Gonzalez said the case centers on Alvogen’s right to decide not to do business with someone, including the government.
“The plaintiff has a reasonable probability that it will suffer damages to its business reputation which will impact investor relations and customer relations,” the judge said in her ruling.
Assistant Solicitor General Jordan Smith, representing the prison system, said he planned to file an emergency appeal with the Nevada Supreme Court.
Gonzalez scheduled a status hearing for Sept. 10. Togliatti later issued a stay of execution.
In court Wednesday morning, Alvogen attorney Todd Bice said the company is in the business of making “life-preserving medication and drugs.”
“This motion is not about the merits of the death penalty and when it is appropriate,” Bice told Gonzalez. “This is a business dispute.”
Smith, who participated in the hearing from Ely via video conference, said the state made no misrepresentation.
“This whole action is just PR damage control,” he argued.
Smith told Gonzalez that she should consider the victim’s family, which has “waited a long time” for the state to carry out Dozier’s death sentence.
The lawyer said Gonzalez also should consider Dozier’s wish to die.
“He has said goodbye to his family,” Smith told the judge.
Officials planned to use a three-drug cocktail of midazolam, the painkiller fentanyl and the paralytic cisatracurium for Dozier’s execution.
In its complaint, the drug company demanded 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.”
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 still reviewing records Wednesday to determine further legal action.
“We’re absolutely pleased that the court has recognized through their ruling that there’s a very real possibility that NDOC received these drugs through subterfuge,” she said. “It just goes to show that without forcing transparency on this issue, the state was not going to do it on their own.”
Two murder convictions
Dozier was sentenced to die in 2007 after first-degree murder and robbery convictions in the slaying of Jeremiah Miller.
The victim’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.
Miller’s family had not planned to watch Dozier’s execution, but his father, David, reached out to Chief Deputy District Attorney Giancarlo Pesci, who prosecuted the killer, Wednesday afternoon.
“They were obviously interested and concerned about what was happening,” Pesci said. “They seemed disappointed and confused as to how something in business court could stop this.”
The family has declined, through the prosecutor, to speak with the Las Vegas Review-Journal.
Dozier also had a prior murder conviction.
He was convicted of second-degree murder in the Arizona slaying of Jasen “Griffin” Greene and was sentenced to 22 years in prison in 2005, before he was brought to Nevada to face charges in Miller’s death.