Two European-owned pharmaceutical companies joined a lawsuit Thursday aimed at stopping the state of Arkansas from using their drug compounds as part of a lethal injection cocktail for the planned execution of seven death row inmates over a two week period. Fresenius Kabi USA and West-Ward Pharmaceuticals Corp. filed amicus briefs with the district court in Arkansas Thursday arguing that both companies have protocols limiting distribution and prohibiting the sale of its drugs for lethal injections. Both companies argued that however the state of Arkansas procured its two drugs was improper and constituted a breach of contract.
“The only conclusion is that these medicines were acquired from an unauthorized seller in violation of important contractual terms that the manufacturers relied on,” the companies stated in the court filing. “More significantly, the use of the medicines for lethal injections creates a public-health risk by undermining the safety and supply of lifesaving medicines.”
Fresenius Kabi manufactures potassium chloride—used to stop the heart—and West-Ward Pharmaceuticals manufactures midazolam, a sedative, which has faced numerous legal challenges after a series of botched executions. “Arkansas has a strict secrecy law surrounding its execution procedures, and has refused to say how it acquired the drugs it intends to use,” the Guardian notes. “The state has conceded in court that it persuaded a third-party supplier to resell drugs, despite the terms of its contract.”
The state of Arkansas has not carried out an execution in over a decade due to legal challenges and drug shortages. The inmates set for execution have challenged the state’s use of the drug midazolam, as well as the speed at which the executions are scheduled to be carried out. “Arkansas prison officials announced last month they had obtained a new supply of potassium chloride, clearing the way for the executions to begin,” according to the Associated Press. “The executions are scheduled to occur before Arkansas' supply of midazolam, a sedative used in flawed executions in other states, expires at the end of April.”
"The use of the medicines in lethal injections runs counter to the manufacturers' mission to save and enhance patients' lives, and carries with it not only a public-health risk, but also reputational, fiscal and legal risks," the companies’ court filing said.