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Fresenius Kabi USA, LLC v. State

United States District Court, D. Nebraska

August 10, 2018

FRESENIUS KABI USA, LLC, Plaintiff,
v.
STATE OF NEBRASKA, NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, and SCOTT FRAKES, in his Official Capacity as Director of the Nebraska Department of Correctional Services, Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         The Time Has Come

         While he is not a party, Carey Dean Moore is at the center of this lawsuit. Legal realism and common decency require that he not be forgotten.[1]

         Mr. Moore is scheduled to die by lethal injection on Tuesday, August 14, 2018, at 10:00 a.m. Mr. Moore, 60, has spent nearly four decades on death row for the coldly calculated 1979 killings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland.

         Before the present one, the Nebraska Supreme Court has given Mr. Moore seven execution dates. This time Mr. Moore wants his death sentence to be carried out, and he has directed his court-appointed lawyers to do nothing. Indeed, Mr. Moore has sought to have his lawyers dismissed. There is absolutely no doubt of his competence or his guilt. I will not allow the Plaintiff to frustrate Mr. Moore and the laws of the State of Nebraska by Plaintiff's last-minute lawsuit.

         Brief Background

         The drug protocol that will be used to kill Mr. Moore has been publicly available since November 9, 2017, when Director Frakes publicly notified another death row inmate of the four drugs that would be used. On January 19, 2018, Director Frakes gave the same public notice to Mr. Moore. See Nebraska Department of Corrections, NDCS Provides Notice of Substances to be Employed in an Execution by Lethal Injection (January 19, 2018).[2] The four drugs that are to be used to carry out the death penalty are: (1) Diazepam; (2) Fentanyl Citrate; (3) Cisatracurium Besylate; and (4) Potassium Chloride.

         On April 3, 2018, the Nebraska Attorney General sought a death warrant from the Nebraska Supreme Court. On May 25, 2018, the State of Nebraska filed a motion to expedite consideration of the motion for execution warrant. Attached to that motion was an affidavit of Director Frakes that represented under oath the following:

         5. The Nebraska Department of Correctional Services has possession of the substances to be administered for execution by lethal injection, all of which have expiration dates as follows:

a. Diazepam, expiration date of September 1, 2019;
b. Fentanyl Citrate, expiration date of August 31, 2019;
c. Cisatracurium Besylate, expiration date of October 31, 2018; and d. Potassium Chloride, expiration date of August 31, 2018.

         6. The substances were obtained from a licensed pharmacy in the United States, and have been chemically analyzed and verified as required by 69 Neb. Admin. Code, ch. 11, § 008.

         (Italics in original.)

         On July 5, 2018, the Nebraska Supreme Court issued the death warrant. The court set the execution date for August 14, 2018, at a time to be chosen by the Department of Corrections. The Department of Corrections decided to execute the warrant at 10:00 a.m.

         On July 24, 2018, the President and Chief Executive Officer of the Plaintiff sent a letter to the Governor of Nebraska, presumably by United States mail. (Filing No. 1-6, Ex. E to the Complaint.) Noting that he had written “your predecessor on more than one occasion regarding lethal injection, ” the author made a demand upon the Governor. The author demanded that “you immediately disclose the quantities, lot numbers, inventory logs, and invoices for any Fresenius Kabi drugs the state may have acquired for executions, and that you return any such drugs to us without delay.” According to the Plaintiff, in a letter dated July 31, 2018, and mailed August 1, 2018, an aide to the Governor responded that Plaintiff's letter was construed as a public records request and that the Governor did not have custody of those records. (Filing No. 11 at CM/ECF p. 3 n.1.)

         After the close of business on Tuesday, August 7, 2018, and at 5:55 p.m., the Plaintiff filed the complaint in this matter. The Plaintiff alleged that it manufactured and distributed Cisatracurium Besylate (“Cisatracurium”) and Potassium Chloride (“KCL”). It alleged that the Nebraska Department of Corrections planned to use both of these drugs to execute Moore, and the Plaintiff suspected that these drugs had been obtained improperly from distributors doing business with the Plaintiff.

         The complaint does not seek damages. It seeks injunctive and declaratory relief. It sets forth six counts.

         Count I seeks a temporary restraining order prohibiting Defendants from employing the Cisatracurium and KCL improperly or illegally obtained from Plaintiff in the execution of Mr. Moore. Count II alleges tortious interference with business relationships in that one or more of the Defendants are alleged to have obtained Cisatracurium and KCL in violation of Plaintiff's policies and distribution agreements. Count III sets out a section 1983 claim alleging that the Defendants, acting under color of state law, through the procurement and threatened use of Cisatracurium and KCL, will proximately cause interference with in terstate commerce if they do not return the drugs. Count IV alleges another section 1983 claim based upon alleged violation of the Due Process Clause because of the Defendants' refusal to return the two drugs and the lack of any state-law procedure to contest the use of Plaintiff's products in executions. Count V is a replevin action seeking return of the Cisatracurium and KCL obtained from Plaintiff or from ...


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