New Jersey-based pharmaceutical distributor Alvogen filed a lawsuit against the state of Nevada on Wednesday seeking to halt the use of their drugs in an execution.
A hearing in the Clark County District Court on Wednesday will determine whether the execution, scheduled for later this evening, will take place.
“Midazolam is not approved for use in such an application,” said court documents obtained by NBC News, adding that uses of Midazolam in other states “have been extremely controversial and have led to widespread concern that prisoners have been exposed to cruel and unusual treatment.”
The lawsuit is only the second of its kind from a drug company seeking to halt an execution over legal or ethical concerns. A similar court challenge in Arkansas failed last year.
A spokeswoman for the Nevada prison system, which will administer the execution of convicted murderer Scott Dozier tonight unless the legal challenge is successful, declined to comment to NBC News.
The lawsuit comes just a day after it was reported the state is considering using fentanyl, the highly pure synthetic painkiller that’s a major part of the nation’s opioid crisis, in an execution of Dozier in a process viewed as experimental.
Attorneys from the American Civil Liberties Union (ACLU) sued the state in a separate lawsuit, forcing it to turn over invoices revealing smaller purchases of fentanyl over months at a time in an apparent attempt to disguise the purpose of the drug’s purchase.
“Using fentanyl in an execution is particularly strange and confusing because of its place in the opioid epidemic,” ACLU legal director Amy Rose said. “But on top of that it’s never been used in an execution before. It’s extremely experimental. There is a very real risk of a botched execution.”
The ACLU said Tuesday that it is investigating whether any illegal activity occurred in the state’s production of drugs including fentanyl for executions, which were placed on hold for more than a decade due to lack of supplies.
“It’s concerning that [drug distributor] Cardinal Health would sell it to the department of corrections if it knew the drugs would be used in executions,” Rose said, adding that the ACLU is seeking to understand whether state authorities “lied to Cardinal in any way.”