Seeing Red attended the hearing in United States District Court today in which pharmaceutical company Fresenius Kabi sought a temporary restraining order delaying the execution of Carey Dean Moore scheduled for Tuesday, August 14 at 10:00 a.m. Moore will be executed with a cocktail of four drugs. This is a summary of the hearing.
In their statement, Fresenius Kabi (FK) argued the following:
The State of Nebraska is misusing drugs to the detriment of Fresenius Kabi. FK makes drugs that are meant to be life-saving and life-sustaining, not life-ending. Their objections to this use of their product is well known. This suit is not about whether the state has the right to execute an inmate, only about their right to use FK’s medication in that process. A temporary restraining order is meant to maintain the status quo to allow time to resolve a dispute. The state claims that the last-minute nature of this request was tactical, but it is not. FK did not file suit sooner because the state refuses to disclose the source of the drugs.
FK has been communicating with Nebraska about this for years. In 2015 FK learned that a distributor mistakenly sold one of these drugs to Nebraska. FK contacted Nebraska and asked that the drug be returned. Nebraska refused, saying that the state was using the drug to save lives, and that the death penalty had been abolished so they wouldn’t be using the drug to execute anyone. In further communications, Nebraska ignored all requests from FK and never advised FK that the state was using their drugs to execute.
Only on July 13 of this year did FK learn that an inventory showed that Nebraska was still in possession of the disputed drugs. FK wrote Ricketts and Department of Corrections head Scott Frakes and asked that the drugs be returned for a full refund. The letter was ignored.
This last-minute lawsuit comes at no surprise, and FK would have filed it sooner if Nebraska had been open and had disclosed the source of the drugs. FK believes Nebraska has “unclean hands” in this matter.
Nebraska states that FK is bringing on harm to themselves by publicizing this matter, but actually Nebraska has been ordered three times to disclose the source of the drugs and has not done so.
Nebraska says that damage claims are speculative but also says that the drugs are impossible to get again, which shows that the pharmaceutical community almost universally condemns and prevents this type of use.
The harm FK will incur is immeasurable and includes the loss of good will and reputation. Temporary restraining orders are sometimes issued over immeasurable reputational harm, so the immeasurability should not be considered a strike against FK in this proceeding.
Nebraska says FK can’t prove Nebraska is using FK’s drugs. But Nebraska should prove that they are not using FK’s drugs. If they are not using FK’s drugs and show that to be the case, this lawsuit is moot.
A temporary restraining order will preserve the status quo and allow discovery. For example, Frakes said he asked 40 suppliers in six states to provide one of these drugs, and all but one said no. FK wants to know the identity of the other 39, as this proves FK’s point about reputation–their industry does not support this.
Additionally, FK has supplied several articles about botched executions. Just last night Tennessee executed a prisoner who was gasping and choking. We know that Nebraska has not been properly storing these drugs because the state’s storage protocol of keeping them at room temperature is not keeping the drugs cool enough, which will degrade the drug’s potency and lead to a higher chance of a botched execution.
FK wants the order based on a fair chance of success in a law suit.
The State of Nebraska responded with these points:
FK has not met their burden in this case. The commercial burden does not outweigh the state burden. The people have chosen capital punishment and the government has the right to use it.
The public has no knowledge of FK tied to drugs except for this lawsuit.
There is no evidence of fraud or deceit by a state official. FK’s claims of damages are speculative and based on whether FK as a source of the drugs comes out to the public. There is no reputational harm if the state does not disclose the source of the drugs. Also, the state is not regulating interstate commerce by refusing to return the drugs.
Fresenius Kabi rebutted:
The state acknowledged that they got the drugs after FK’s distribution protocols were in place. And again, Nebraska has been *ordered* to disclose the source of the drugs.
Judge Kopf’s Decision:
Carey Dean Moore is at the center of this lawsuit. Decency requires that he not be forgotten. Moore is 60 and has spent four decades on Death Row for cold, calculated killings. The Nebraska Supreme Court has given Moore seven execution dates during this time. Now Moore wants it to be carried out and has sought to dismiss his lawyers. There is no doubt about his guilt or mental competence. “I will not allow the plaintiff to frustrate Mr. Moore or the laws of Nebraska.”
Frakes has said that he has possession of these substances and that they were obtained by a licensed pharmacy and have been chemically analyzed. In a letter to Ricketts, FK demanded the state disclose the source of the drugs and return them. However, the governor interpreted this as a public records request and did not provide that information because he does not have it.
Courts are reluctant to resolve public law questions with declaratory judgments. The judge has denied expedited discovery because the request was overly broad, asking for information on all drugs in use, not just the ones in question as originating with FK.
He is denying the temporary restraining order.
The plaintiff wants to interfere with the death penalty. There are serious problems with their assertions. Reputational harm has to be based on evidence, not platitudes. There is no evidence that one of these drugs came from FK: we have “no way of knowing.” There is “no reason for anyone to think the plaintiff is complicit” in this execution.
The plaintiff worries about reputational harm, but this is speculative, and the plaintiff has made it widely publicly known that they are trying to prevent this use of the drug. This lawsuit publicizes their desire to not be associated with executions. There was even a news item in a French newspaper about this. Consequently, there is no reason to conclude that a rational person would blame FK for this execution.
No interstate commerce is effected by this claim—if there is a shortage of this drug it couldn’t be solved by the return of the drug anyway because it’s about to expire and couldn’t be sold.
The harm to FK in this execution is “vanishingly small to nonexistent.” But the harm to Nebraska if it is delayed is “irreparable.” Voters overwhelmingly reinstated the death penalty and a temporary stay would frustrate the will of the people. The argument that a restraining order is merely temporary is “laughable.” The plaintiff has shown that death penalty opponents have pressured pharmaceutical companies into avoiding this use of their products. Any delay would cancel the execution.
The balance of harm in this case tips heavily to the state. Conversely, the request has little merit. It’s a “very strange” case. Frakes has *promised* the drugs were not bought using fraud, deceit, or misrepresentation, and the Department of Corrections has no contract with FK. So unless Frakes is lying, the case against the state does not have much of a chance of prevailing.
Finally, the public interest is not served with a restraining order. That would be putting the interests of a corporation above the interests of democracy. The plaintiff fails in every factor and the motion is denied.
