Drug companies say Arkansas may have improperly acquired lethal injection drugs

Two drug companies have thrown a new wrinkle in Arkansas’ planned executions of seven death row inmates with a late Thursday (April 13) filing indicating that state officials may have obtained two of the three lethal injection drugs from “an unauthorized seller.” The director of the state’s corrections department says the drugs were “donated” to the state but she did not disclose the source.

Fresenius Kabi, a Lake Zurich, Ill.-based company that produces drugs and medical devices, and Eatontown, N.J.-based West-Ward filed Thursday an amicus brief in a lawsuit filed on behalf of the inmates. The case is being heard by U.S. District Court Judge Kristine Baker, and testimony wrapped up late Thursday. Most of Thursday’s testimony dealt with issues related to the lethal injection drugs. It is uncertain when Baker will issue a ruling, but the first two executions are set for Monday.

Fresenius – once known as APP Pharmaceuticals – produces potassium chloride and West-Ward produces midazolam.

Gov. Asa Hutchinson on March 6 set execution dates two at a time over an 11-day period starting April 17 and ending April 27.
• April 17: Don Davis, Bruce Ward;
• April 20: Stacey Johnson, Ledelle Lee;
• April 24: Marcel Williams, Jack Jones; and
• April 27: Jason McGehee, Kenneth Williams.

However, the State Parole Board on April 4 recommended the governor grant clemency to one of the condemned, Jason McGehee. On April 6, U.S. District Court Judge D. Price Marshall ruled in federal court that there must be at least a 30-day period before the Parole Board makes that recommendation. That would place McGehee’s execution past April 30, when the state’s supply of midazolam, one of three drugs used in its executions, expires.

Thirty-four men are on Arkansas’ death row. The last inmate executed was Eric Nance, for the murder and attempted rape of Julie Heath of Malvern in 2005. Nance had six prior felony convictions after raping and beating two Oklahoma girls in 1982.

Fresenius did not say for certain their drugs were being used for lethal injections in Arkansas, but said they had reason to believe they might be in the state’s possession.

“If the State of Arkansas has obtained Fresenius Kabi-manufactured potassium chloride to use in capital punishment-as appears to be the case-it would have been contrary to and in violation of the company’s contractual supply-chain controls,” noted the filing. “Fresenius Kabi seeks to appear in this matter as amicus curiae to share with the Court the public-health risks of diverting these lifesaving medicines from the healthcare industry to the Department of Correction for capital-punishment purposes.”

The filing includes images of two redacted product labels the drug makers allege accompany their drugs and are in the state’s possession for use in the injections.

“The Manufacturers have knowledge, experience, and perspective that go beyond that of the parties in this case. They manufacture lifesaving medicines. But the State of Arkansas appears to be about to use some of those medicines to end life rather than save it. This is so despite the Manufacturers’ implementation of distribution protocols to prevent this and the public-health risk that could result from use of these medicines for capital punishment,” noted the filing.

Following is the full statement Fresenius provided to the media along with the amicus brief filing.

“Fresenius Kabi understands the state of Arkansas may have acquired quantities of the company’s potassium chloride from an unauthorized source, or sources, and that the state intends to use the medication in executions this month.

“While Fresenius Kabi takes no position on capital punishment, we strongly object to the use of our products for this purpose. Our products were developed and are approved solely for patient care, and we expressly restrict the sale of our products for use in lethal injection procedures.

“Our information indicates no sales of potassium chloride – neither directly nor through any of our authorized distributors – to the Arkansas Department of Correction. That is, we made no sales to the Department of Correction, nor have any of our authorized distributors. So we can only conclude Arkansas may have acquired this product from an unauthorized seller.  

“Pharmaceuticals obtained in this manner are at risk of adulteration or chemical change due to improper handling such as failure to maintain proper temperature levels during storage and transport.

“Fresenius Kabi is a global health care company that specializes in lifesaving medicines and technologies. We work closely with the FDA and hospitals to assure an uninterrupted supply of our products. The European Union has banned exports of certain medicines when they are used, or considered for use, in lethal injection, causing many to become in short supply in the United States.

“Our interest is to avoid unnecessary drug shortages and ensure the lifesaving medicines we supply remain immediately available to patients.

“Fresenius Kabi and most major U.S. and international pharmaceutical manufacturers have established distribution controls in the United States to assure their products are not sold for use in lethal injection. Medical associations have put in place similar restrictions on the participation of their members in state executions.

“Fresenius Kabi has written to the Governor and his staff on this matter, offered to speak to the governor and/or his staff, and asked the Governor to assure the company’s medicines would not be used in lethal injection. To date, neither the Governor nor his staff has responded to us.”

Talk Business & Politics reached out the the Governor’s office and the office of Arkansas Attorney General Leslie Rutledge. Neither office offered a comment at this time on the Fresenius and West-Ward filing.

However, late Thursday night, Arkansas Department of Corrections Director Wendy Kelley, after testifying in federal court, acknowledged that the drugs in question were “donated” to the state. She declined to reveal the source of the donation when asked by KATV Ch. 7 News.

Link here for a PDF of the amicus filing.

In Arkansas’ lethal injection process, the three drugs that are used include midazolam, vecuronium bromide and potassium chloride.

Midazolam is used every day by those suffering from insomnia. It makes users drowsy or sleepy. It can also be used to induce temporary amnesia in those who are undergoing surgical procedures. It’s used to cause a Death Row inmate to fall asleep during his/her execution.

Vecuronium bromide is used to relax muscles during surgery. It can also be used by those on a ventilation machine. In Death Row inmates, it relaxes their muscles and helps in the sedation process.

Potassium chloride is a supplement used to treat low levels of potassium in the blood. Variations can also be found in fertilizers and explosives. In a lethal injection, it stops the defendant’s heart.
–––––––––––––––––––
Editor’s note: Little Rock-based KATV Channel 7 contributed to this report.