Company blocked from selling execution drug
13 February 2014, 21:32
Oklahoma City - A federal judge late on Wednesday temporarily blocked an Oklahoma compounding pharmacy from selling a drug to the Missouri department of corrections for use in an upcoming execution.
The temporary restraining order was issued in a lawsuit filed a day earlier in US District Court by Missouri death row inmate Michael Taylor. His attorneys allege that the department contracts with The Apothecary Shoppe to provide the drug set to be used in Taylor's 26 February lethal injection.
The lawsuit argued that several recent executions involving the drug, compounded pentobarbital, indicate it will likely cause Taylor "severe, unnecessary, lingering and ultimately inhumane pain".
In his order on Wednesday, US district judge Terence Kern wrote that Taylor's attorneys submitted "facts demonstrating that immediate and irreparable injury, loss, or damage will result to plaintiff before defendant can be heard in opposition".
The judge set a hearing for Tuesday and ordered the pharmacy to submit a response to the injunction by Friday. He said the order would remain in effect at least until the hearing.
But it wasn't immediately clear if the execution would be delayed because of the ruling. The state has not revealed the name of the compounding pharmacy supplying the drug, and The Apothecary Shoppe previously declined to confirm or deny that it was the source of a drug used in an earlier Missouri execution.
A pharmacy spokesperson did not return telephone calls seeking comment late on Wednesday. Phone and email messages were also left with the Missouri department of corrections and the Missouri attorney general's office.
Taylor, aged 47, pleaded guilty in the 1989 abduction, rape and stabbing to death of a 15-year-old Kansas City girl.
A pharmacy spokesperson did not return a telephone call seeking comment earlier on Wednesday. Phone and email messages were also left with the Missouri Department of Corrections.
One of Taylor's attorneys, Matthew Hellman of the Washington, DC, law firm Jenner & Block, said the lawsuit focuses attention on the drug used in Missouri's lethal injections and the laws regarding compounding.
"This is not an acceptable option", Hellman said.
Missouri corrections officials turned to The Apothecary Shoppe to supply compounded pentobarbital after manufacturers of the drug refused to provide it for lethal injections, according to the lawsuit.
In January 2012, a Danish company that had produced pentobarbital under the trade name Nembutal sold the exclusive rights to the drug to an American company, Akorn Inc, on the condition that Akorn not sell the drug for use in executions.
"Those manufacturers do not want medication to be used for executions", Hellman said.
Taylor's lawsuit questions whether the pharmacy can legally produce and deliver compounded pentobarbital. It says the pharmacy is not registered as a drug manufacturer with the Food & Drug Administration and alleges it violates federal law each time it delivers the drug across state lines to Missouri corrections officials.
Along with asking for a temporary restraining order, the lawsuit seeks an injunction barring the pharmacy from delivering "this unidentified, unregulated, untested and unsafe pharmaceutical product".
Hellman declined to say whether The Apothecary Shoppe also sells compounded pentobarbital to states other than Missouri.
Several recent executions that involved compounded pentobarbital indicate use of the drug will subject Taylor to "inhumane pain", the lawsuit says.
One such execution was that of Oklahoma death row inmate Michael Lee Wilson, aged 38. Within 20 seconds of receiving the lethal injection at the Oklahoma state penitentiary on 9 January Wilson said: "I feel my whole body burning."
The lawsuit alleges the statement describes "a sensation consistent with receipt of contaminated pentobarbital."