A lawsuit filed Tuesday evening asks a federal judge to prohibit a Tulsa-area pharmacy from delivering compounded pentobarbital for use in an execution in Missouri later this month.
Attorneys for Michael A. Taylor claim that “recent incidents demonstrate that use of compounded pentobarbital in Mr. Taylor’s execution creates a very real and substantial risk that he will suffer severe, unnecessary lingering, and ultimately inhumane pain.”
The complaint, filed in Tulsa federal court, seeks a temporary restraining order and preliminary injunction that would stop the use of the drug in Taylor's execution, which is scheduled for Feb. 26.
Taylor, 47, was condemned to death for the 1989 abduction, rape and stabbing death of a 15-year-old girl.
The lawsuit also asks that The Apothecary Shoppe be permanently enjoined from delivering the substance to the Missouri Department of Corrections for use in the execution of any other condemned person.
It also asks for a
ruling that the Tulsa pharmacy’s delivery of compounded pentobarbital to the Missouri DOC for use in executions constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution.
Missouri and other states for decades had used a three-drug execution method, but pharmaceutical companies stopped selling the drugs in recent years for use in executions. Missouri eventually switched to pentobarbital, a powerful sedative, which was used to execute two men there last year and another man last month.
The Apothecary Shoppe has two locations in Tulsa and one in Broken Arrow, according to its website.
An attempt to garner comment from The Apothecary Shoppe was routed to company Executive Vice President of Sales and Human Resources Sarah Lees.
Lees said Tuesday evening that she had not had a chance to read the lawsuit but will not be able to comment on its specific allegations due to the restrictions in the Health Insurance Portability and Accountability Act of 1996 -- commonly known as HIPAA.
In 2010, Oklahoma became the first state to use compounded pentobarbital for executions.
Citing state law, the Oklahoma Department of Corrections will not reveal the compounding pharmacy that provides the compounded pentobarbital Oklahoma uses in executions.
But according to the lawsuit, The Apothecary Shoppe has contracted with Missouri’s DOC to produce and provide compounded pentobarbital as the lethal ingredient in the injection that is scheduled to be used to execute Taylor.
The complaint, filed on behalf of Taylor by Tulsa attorney Paul DeMuro as well as Washington, D.C.-based lawyers with the firm of Jenner & Block, alleges that The Apothecary Shoppe is not registered with the Food and Drug Administration as a drug manufacturer.
DeMuro said in a statement released Tuesday evening, “We’re asking the Court to stop a practice that, in violation of the Constitution and our shared moral values, inflicts unnecessary, protracted, and inhumane pain during the execution process.”
The lawsuit alleges that “the use of pentobarbital produced by this pharmacy is substantially likely to cause Mr. Taylor severe, unnecessary, lingering, and ultimately inhumane pain for a number of reasons.”
It also alleges that “it is unclear what ingredients defendant uses to create the pentobarbital compound it intends to sell to the (Missouri) DOC.”
The complaint says the suspected active ingredients used in the compound are obtained “from unknown sources and thus there is no way to verify whether these sources are regulated and approved by the FDA or what standards they use when developing their products.”
The lawsuit additionally alleges that “given the lack of regulation governing defendant’s compounding practices there are no assurances” that that the pentobarbital has been compounded in a sterile environment.”
The Apothecary Shoppe's website says its laboratories “are meticulously cleaned every day. Our pharmacy technicians are closely supervised by our doctors of pharmacy by weight checks and volume checks on every ingredient and final product check before the compound is prepared for dosage packaging.”
Taylor's lawyers also argue in their complaint that “there is no evidence that defendant will or even has the capacity to test the pentobarbital it will provide for the execution of Mr. Taylor to ensure it will not cause unnecessary pain and suffering.”
The lawsuit states, “as a result, the pentobarbital compounded by this substantially unregulated pharmacy is of unreliable sterility, identity, purity, potency and efficacy.”
Further, attorneys for Taylor allege that The Apothecary Shoppe has provided Missouri’s DOC “with dangerously inaccurate information regarding the proper storage of pentobarbital.”
The lawsuit alleges that if Missouri’s DOC heeds the guidance and stores the pentobarbital as The Apothecary Shoppe allegedly has suggested, “there is a grave risk that Mr. Taylor will suffer severe pain or an immediate, severe allergic reaction if injected with defendant’s pentobarbital compound.”
The complaint also alleges an “additional risk that the compounded pentobarbital will be sub-potent, meaning that Mr. Taylor could experience severe pain and suffering or a severe allergic reaction prior to losing consciousness and continuing throughout an unnecessarily long and inhumane execution.”
In January, Oklahoma death-row inmate Michael Lee Wilson said he felt his whole body burning after the drug was injected during his execution.
The lawsuit claims that the burning sensation is “consistent with receipt of contaminated pentobarbital.”
The case was assigned to U.S. Senior District Judge Terence Kern. A hearing date had not been set as of Tuesday night.