Posted: Feb 17, 2014 4:53 PM
Updated: Feb 17, 2014 4:54 PM
OKLAHOMA CITY (AP) An Oklahoma pharmacy has submitted a sealed response to a Missouri death row inmate's lawsuit accusing it of illegally providing Missouri with a made-to-order drug to be used in his lethal injection.
The Apothecary Shoppe, of Tulsa, filed its response to Michael Taylor's lawsuit last week after getting permission from U.S. District Judge Terrence Kern to keep its response sealed. The company hasn't publicly acknowledged that it supplies a compounded version of pentobarbital to Missouri for use in lethal injections, as Taylor alleges, and says it can't because of a Missouri law requiring the identities of those on the state's execution team to be kept confidential.
"It's based on Missouri law," was all that one of the pharmacy's attorneys, Michael Lewis, would say about the case when reached by phone Monday.
Kern issued a temporary injunction barring the pharmacy from selling the compounded drug to Missouri, if it has been doing so. He scheduled a hearing for Tuesday to weigh arguments about whether the pharmacy's response should remain sealed. The hearing will remain closed to the public pending a ruling on the matter.
Taylor, 47, is scheduled to die on Feb. 26. He pleaded guilty to abducting, raping and stabbing to death a 15-year-old Kansas City girl in 1989.
In his lawsuit, Taylor alleges that Missouri corrections officials turned to The Apothecary Shoppe to supply compounded pentobarbital because the only licensed manufacturer of the drug refuses to provide it for lethal injections. That company, Illinois-based Akorn Inc., agreed to that condition when it bought the exclusive rights to the drug in January 2012 from a Danish company that had produced it under the trade name Nembutal.
Taylor contends that several recent executions in which compounded pentobarbital was used showed it would likely cause him "severe, unnecessary, lingering and ultimately inhumane pain."
Within 20 seconds of receiving his lethal injection on Jan. 9 at the Oklahoma State Penitentiary, 38-year-old Michael Lee Wilson said: "I feel my whole body burning." This statement describes "a sensation consistent with receipt of contaminated pentobarbital," Taylor alleges.
The lawsuit also cites the Oct. 15, 2012, execution in South Dakota of Eric Robert. Robert, 50 cleared his throat, gasped for air and then snored after receiving the lethal injection, which included compounded pentobarbital. His skin turned a purplish hue and his heart continued to beat for 10 minutes after he stopped breathing, the lawsuit contends. 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.
Taylor's lawsuit questions whether the Tulsa pharmacy can legally produce and deliver compounded pentobarbital. It says the pharmacy is not registered as a drug manufacturer with the U.S. Food & Drug Administration and alleges that it violates federal law each time it delivers the drug across state lines to Missouri corrections officials.