OKLAHOMA CITY – A federal judge has temporarily blocked an Oklahoma pharmacy from providing an execution drug to the Missouri Department of Corrections for an upcoming lethal injection.
The temporary restraining order was issued late Wednesday, after a federal lawsuit was filed in Tulsa by Missouri death row inmate Michael Taylor. His attorneys said the department contracts with The Apothecary Shoppe in Tulsa to provide compounded pentobarbital, which is set to be used in Taylor's execution on Feb. 26.
The lawsuit argued that several recent executions involving the drug indicate it would likely cause Taylor "severe, unnecessary, lingering and ultimately inhumane pain." In his order Wednesday, U.S. 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 an evidentiary 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 has declined to confirm or deny that it was the source of a drug used in an earlier Missouri execution.
A pharmacy spokeswoman did not return telephone calls seeking comment late Wednesday. Phone and email messages also were left with the Missouri Department of Corrections and the Missouri Attorney General's Office.
Taylor, 47, pleaded guilty in the 1989 abduction, rape and stabbing death of a 15-year-old Kansas City girl.
One of Taylor's attorneys, Matthew Hellman of the Washington, D.C., law firm Jenner & Block, said the lawsuit focuses attention on the drug used in Missouri's lethal injections and the laws regarding compounding.
"We're gratified the court entered the order," Hellman said after the Wednesday order. "This lawsuit is about an unacceptable option in carrying out the death penalty and this is why we're seeking to stop The Apothecary Shoppe from providing this unlawful drug."
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, 38. Within 20 seconds of receiving the lethal injection at the Oklahoma State Penitentiary on Jan. 9 Wilson said: "I feel my whole body burning." The lawsuit alleges the statement describes "a sensation consistent with receipt of contaminated pentobarbital."
The lawsuit also sites an Oct. 15, 2012, execution in which South Dakota death row inmate Eric Robert, 50, cleared his throat, gasped for air and then snored after receiving the lethal injection. His skin turned a purplish hue and his heart continued to beat for 10 minutes after he stopped breathing. It took 20 minutes for authorities to finally declare Robert dead.
"These events are consistent with receipt of a contaminated or sub-potent compounded drug," the lawsuit says.
Use of the same drug in Taylor's execution could result in a similar reaction, Hellman said.
"It is extremely disturbing," he said.
On Monday, Missouri Corrections Department Director George Lombardi told a legislative panel that the agency pays for the drug to be independently tested to make sure it works and is sterile. He also said the agency had found no substantial issues in a background check of its current supplier.
Lombardi did not release the name of the pharmacy that provides the drug, saying Missouri could not carry out lethal injections if that information were released. He said the state pays $8,000 in cash to the pharmacy for the drug.