A multinational pharmaceutical company has accused the heads of Nevada’s prisons and health departments of conspiring to illegally buy one of its drugs to use in an execution on Wednesday.



A federal judge has called a hearing just hours before the killing is due to take place to listen to a demand by the drug manufacturer Alvogen for a block on the use of its sedative, midazolam, in putting to death Scott Dozier for murder.



Alvogen claims in court papers that the drug was obtained by state officials through subterfuge, including the misuse of the Nevada chief medical officer’s licence to buy controlled medications that were then illegally diverted for use in the execution chamber.

The midazolam would be used to sedate Dozier before he is killed using fentanyl, a drug at the forefront of the US opioid epidemic that was also allegedly obtained illicitly.

Nevada has struggled to find drugs to carry out Dozier’s execution because of resistance from manufacturers.

Following the use of midazolam in a number of botched executions, Alvogen wrote to the governors, attorney generals and prison authorities in every state with a death penalty saying it “strongly objects to the use of its products in capital punishment”.

One of the letters was sent to Nevada’s Ely state prison where executions are carried out, addressed to the warden, Timothy Filson.

Alvogen alleges that the state began buying drugs covertly and that Nevada’s department of corrections used a licence held by the state’s chief medical officer to surreptitiously obtain the midazolam.

The company said the license was used on a purchase order in a deliberate attempt to dupe a drug wholesaler, Cardinal Health, into believing that the 90 vials of the medicine were to be used by a doctor in legitimate medical treatment.

The lawsuit said that to perpetuate the deception, the authorities had the midazolam shipped to the department of correction’s central pharmacy rather than to the prison where the execution is to take place.

Alvogen said that Nevada law is clear that it is an offence to obtain a controlled drug “by misrepresentation, fraud, forgery, deception, subterfuge or alteration”. The company said the authorities deliberately sought to circumvent attempts to keep the drug out of the hands of the executioners.

The lawsuit names the director of Nevada’s department of corrections, James Dzurenda, and the state’s chief medical officer, Dr Ihsan Azzam, as conspiring to buy the midazolam along with an unidentified doctor who will participate in the execution.

But Azzam denied any part in obtaining the drug. “I had absolutely no role, “ he told the Guardian. “I don’t know why I’m named. It may just be by default because I’m the chief medical officer of the state. But neither I nor our agency had any role in how this medication was purchased.”

Azzam also noted that he did not take up his post until several days after the first order for midazolam went in, in May, although he was chief medical officer for later deliveries.

The Nevada department of corrections said it had no comment on the lawsuit.

The company further alleges that the doctor who acts as medical officer at the execution will be breaking a Nevada law requiring that a physician administer controlled drugs solely for a legitimate medical purpose.

Alvogen said the Food and Drug Administration approved the use of midazolam as therapy and any other use is an offence. Nevada obtained the midazolam after its supply of another sedative, diazepam, commonly known as Valium, expired.

Alvogen said in its lawsuit that midazolam has been involved in a number of botched executions across the US when it failed to sufficiently sedate the condemned man. These included the 2014 attempt to execute Clayton Lockett in Oklahoma, which was called off after he regained consciousness but died of a heart attack 40 minutes later. The same year, the execution of Joseph Wood in Arizona dragged on for more than an hour after he was dosed with midazolam but was not fully sedated and appeared in great distress.