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The mystery behind Missouri’s execution drugs


JEFFERSON CITY, Mo. — Missouri’s supply of the anesthetic propofol, which until two weeks ago it intended to use to execute death-row criminals for the first time in history, was at least partially contaminated and the distributor and manufacturer of the drug are telling two different stories about where Missouri obtained the substance.

Last year, Missouri announced it would be using the drug to execute criminals, something never done before in the United States. States like Texas, Missouri and Florida have all been actively seeking new methods to carry out lethal injection executions after manufacturers announced the three-drug cocktail long used by correctional facilities would no longer be produced.

Propofol is the most commonly used general anesthetic in the country because of its powerful sedative qualities and relatively minor side effects. Nearly 90 percent of all propofol is produced in Europe, where the European Union threatened to halt shipments to the U.S. if correctional facilities here began using the drug to kill convicted criminals.

Missouri’s original supplier of the drug, Morris & Dickson, accidentally sent a case of 20 vials of the drug to Missouri last November because of an internal error, and despite frantic emails from Morris & Dickson representatives to DOC personnel — including director George Lombardi  — begging department officials to return it, Missouri kept the drug for 11 months, finally shipping it back during early October.

Photo via Hospira's website.
Photo via Hospira’s website.

During those 11 months, Morris & Dickson’s was restricted from selling propofol for a period of 4-6 months according to German supplier Fresenius Kabi, preventing the company from supplying it to the more than 600 medical facilities it serves throughout the south and Midwest. During this time, Fresenius Kabi supplied the drug directly to Morris & Dickson customers. However, as the most common general anesthetic on the planet, the drug’s sudden restriction was a “massive inconvenience,” that “potentially harmed the public,” according to one Morris & Dickson employee. A Fresenius Kabi spokesperson has refuted that claim, saying the German company was able to meet the market demand and that there was “absolutely no harm” to the public.

Upon learning that Morris & Dickson would no longer provide Missouri Department of Corrections with propofol, the state began seeking a new supplier. They eventually landed on Mercer Medical LLC, a Washington-based drug supply company.

A Mercer sales representative, who did not respond to numerous requests for comment, specifically mentioned the availability of propofol when approaching corrections officials about becoming a vendor for the state, according to department emails. The same representative provided weekly and even daily updates on their supply of drugs like propofol to the Missouri Department of Corrections.

The Department of Corrections and Mercer said, because their supplier was an American manufacturer, there would be no repercussions from using the drug for a lethal injection. Although, the European Union has still threatened sanctions if the drug is used to execute a criminal even if the drug wasn’t made on European soil. However, Mercer’s stated supplier of the drug, a company called Hospira, told The Missouri Times that Mercer Medical is not licensed by its company to distribute the drug, and it does not supply propofol to Mercer Medical. The Hospira official said the company didn’t even know how Mercer Medical got their drug in the first place.

“Mercer is not an authorized distributor for Hospira,” a spokesperson for Hospira told The Missouri Times. “Therefore, we didn’t sell this product to Mercer. We can’t speak to how Mercer ultimately procured the product, but we can confirm that they did so outside of Hospira’s authorized distribution channels.”

The Food and Drug Administration does not approve propofol for the purpose of executions, meaning the department has no records or tracking of the substance for non-approved purposes. However, if Mercer Medical obtained propofol manufactured by Hospira without proper licensing, it would constitute a violation of FDA regulations for schedule IV substances.

Mercer spokesperson Mike Rudoff declined to comment on who supplied his company with propofol, and he refused to confirm or deny Hospira’s claim that they have not, and do not, supply Mercer with propofol. Rudoff declined to answer questions about Mercer’s business arrangement with the DOC, and when asked how his company acquired the drug, and whether they were authorized to distribute the drug in the U.S., Rudoff hung up, and ignored all further inquiries.


Recall and changing stories

Hospira sent a letter to Mercer Medical requesting a return of propofol that was subject to a voluntary recall last August. That same letter was sent to the Missouri Department of Corrections, warning them some of its supply may be contaminated, appearing to confirm that Hospira manufactured and supplied the drug to Mercer Medical — despite its claims to the contrary — which was then sold it to the Missouri Department of Corrections. However Hospira officials said Mercer likely lifted the letter from their website or acquired it through a licensed vendor, because they deny ever sending the letter to Mercer.

The first letter about a recall arrived at the Department of Corrections in August. After the arrival of the original recall letter, DOC officials indicated on the forms for return they did not have any contaminated propofol in their possession.

However, documents from within the department show vials from one of the three contaminated batches was shipped to Missouri on June 20th of this year. It is difficult to determine just how many vials were contaminated and sent to Missouri because in this same shipment, Mercer Medical made an error. Like Morris & Dickson before them, an internal error occurred. While Missouri ordered 100 vials of propofol from Mercer last June, Mercer Medical shipped 500 vials of the drug to Missouri, including at least some of the recalled substance. Two weeks after sending the incorrect order, Mercer requested its shipment back, and sent a letter indicating that Missouri was in possession of recalled propofol, the same recalled propofol Hospira was trying to get back.

On this form, the department changed their story, confirming they did in fact have some of the contaminated substance. Why the change occurred in a two-week period is unknown, as DOC officials did not return numerous phone calls, and refused to see representatives from The Missouri Times in person. In the one and only correspondence from the DOC, The Missouri Times was directed toward the latest press release.

A few weeks after the DOC received 400 extra vials of propofol, it was all returned. What made the return of the drug so speedy when compared to the 11-month delay of 20 vials to Morris & Dickson is unknown, as neither Mercer Medical nor the DOC would respond to inquiries on the subject.


Rules changes, more lawsuits 

Adding to the confusion is a change from the DOC earlier this week. Administrative rules for the Department say members of an execution team cannot have their identities publically revealed. Earlier this week, the DOC moved to have pharmaceutical companies providing the deadly chemicals added to the definition of “execution team,” effectively prohibiting anyone from identifying the source of the DOC’s execution drugs.

The American Civil Liberties Union acquired more than 500 page documents in recent weeks because of a Sunshine Request on the DOC’s propofol supply. Following the DOC’s sudden change — which unlike any other administrative agency, is not subject to the public rulemaking process — the ACLU pulled all the documents from its site, because it identified companies likes Mercer and the state’s former supplier, Morris & Dickson.

The ACLU then quickly filed suit, saying the rule change violated not only First Amendment rights to free speech, but constituted an unwarranted concealing of government activity. The DOC’s move to make it harder to find out or publically declare who is giving them execution drugs came after weeks of scrutiny from local and national news organizations and lawsuits from the ACLU as well as several death row inmates in relation to the department’s use of propofol.

The change in policy came along with a second announcement: the state had selected a new drug to execute criminals with and it would not be administering propofol to death row inmates for lethal injection. The state selected pentobarbital, a substance commonly used to euthanize household pets, as its new execution drug. However, because of the change in its rules regarding execution teams, the name of the compound pharmacy producing and supply Missouri with the drug remains a mystery.