ATLANTA — A federal judge said he would likely rule by Tuesday on a lawsuit from a Georgia death row inmate who claims the state’s stockpile of a key lethal injection drug has expired and could cause him to die in excruciating pain.
Roy Willard Blankenship’s lawsuit raises questions about Georgia’s supply of sodium thiopental, a sedative that has been in short supply even before the drug’s sole U.S. manufacturer decided last month to stop producing it.
“No matter where Georgia obtained its supply of the drug, the drug is almost certainly expired and no longer effective,” said the lawsuit, which was filed by the Atlanta-based Southern Center for Human Rights.
The shortage has delayed executions in several states, and an Associated Press review found that at least five states — Arizona, Arkansas, California, Georgia and Tennessee — had to turn to England for their supply of the drug. Nebraska, meanwhile, secured a stockpile from an Indian firm.
State attorneys argued Monday that Georgia’s stockpile of the drug won’t expire until February 2014 and Blankenship’s lawsuit amounts to a backdoor attempt to commute his sentence.
“We have the pinnacle of speculation here,” said Tina Piper, an assistant state attorney. “He may suffer if it’s expired. He may suffer if the potency is affected. But there’s no evidence.”
Blankenship was set to be executed last Wednesday for the 1978 murder of an elderly woman, but the state pardons board postponed it to give authorities more time to conduct DNA testing on the victim’s remains.
The lawsuit urged the judge to call off the execution until the state releases more details of its supply of sodium thiopental, a barbiturate used by most states as part of a three-drug cocktail. It puts inmates to sleep before officials administer pancuronium bromide, which paralyzes the muscles, and potassium chloride, which stops the heart. The lawsuit contends the expired drug may not fully put Blankenship to sleep — which could make his death extremely painful as the other drugs take effect.
The lawsuit, citing state documents, claims the sodium thiopental is stored in vials labeled “Link Pharmaceuticals,” a firm purchased five years ago by Archimedes Pharma Limited, both British companies.
Link Pharmaceuticals didn’t exist in 2010, and its name hasn’t been on labels since May 2007, the lawsuit said. Sodium thiopental typically has a shelf life of four years, meaning even the state’s newest supply would expire in May of this year, according to the lawsuit.
“The drugs have expiration dates for a reason,” said Patrick Mulvaney, an attorney on behalf of Blankenship. “Every other state that has come across the situation has hit the brakes. And in this situation we have very little reason to believe the drug has not expired.”
Archimedes did not immediately respond to a request for comment. But it has said the firm does not export the drug to the U.S. and that it doesn’t keep information on the purchasers and users of its products.
State attorneys said Blankenship offered no evidence that the rest of the company’s labels and marketing changed when it was purchased and it was not uncommon for a brand name to continue even after a buyout.
Blankenship’s lawsuit also includes an affidavit from Randall Tackett, a University of Georgia pharmacy professor, who said using an expired batch of the drug could have grave consequences.
“There is an extremely high risk that the use of expired sodium thiopental would cause the individual being executed to experience excruciating pain due to inadequate sedation,” he said.
State attorneys pushed back, arguing the thiopental in question had already been effectively used by the state in two executions.
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