A leading neurologist who uses drugs produced by the pharmaceutical firm Lundbeck in his work, has taken legal action to prevent their use in lethal injections, notably in the execution of a Cuban prisoner whose execution date has been set for 28 September 2011 in Florida.
Dr David Nicholl, who has led the professional debate on this issue in The Lancet and elsewhere, has filed an emergency petition with Florida’s Supreme Court seeking to prevent the state’s Department of Corrections from ‘unlawfully’ using the drugs in executions. Such use would violate the Controlled Substances Act, which bans the use of pentobarbital – the first drug in a three-stage execution ‘cocktail’ – for non-medical purposes.
Dr Nicholl also raises the concern that using this drug in executions harms the medical profession and those who benefit from its legitimate use, by creating a disincentive to companies which manufacture the drug.
Manuel Valle, a Cuban national with ties to Spain, will be the first prisoner executed in Florida using pentobarbital if the execution goes ahead. .
The Danish firm Lundbeck which manufactures the drug, is strongly opposed to its use in lethal injections, and has taken steps to prevent this from happening. However, some states – Florida included – hold stockpiles of the drug created before protective measures were put in place.
As a neurologist who relies on Lundbeck to supply products for legitimate medical use, Dr Nicholl has a strong interest in any reputational or commercial threats which the firm may face as a result of the improper use of their drugs. His position as a stakeholder deeply involved in the issue has led him to file a writ of Quo Warranto, in which he “asserts a direct interest in preventing the unlawful use of its products to end human life.”
Dr Nicholl said: "To their credit, Lundbeck have made it clear that this drug should not be used for executions. The medical profession has been quite explicit that pentobarbital has no role in executions. The use of this drug – which should only be used in an intensive care-type setting with full anaesthetic support – is nothing short of barbaric, and has resulted in botched executions. When both the medics and the manufacturer are saying the use of this drug is illegal, it is about time the State of Florida paid attention. Florida must stop using pentobarbital in a manner which is, in my view, unconstitutional and illegal.”
Both medical experts and the manufacturers are in agreement that penobarbitol, which was not designed for use in surgical anaesthesia, could cause severe pain and suffering. An eyewitness from the Associated Press has described the “thrashing, jerking death of Roy Willard Blankenship”, executed in Georgia in June 2011 and in whose execution penobarbitol was used, adding that “his eyes never closed”.
Manuel Valle has been on death row for 33 years. The legal charity Reprieve says this is due primarily to the errors in the way that proceedings were carried out by the State of Florida. The charity considers prolonged incarceration on death row amounts to cruel, inhuman or degrading punishment which violates international law.
Dr David Waisel’s affidavit on Roy Blankenship’s inadequate anaesthesia can be read here: http://www.reprieve.org.uk/media/downloads/2011_06_28_PUB_Waisel_Affidav...