Mo. returning execution drug year after demand from distributor

ST. LOUIS -- The Missouri Department of Corrections said Wednesday it will return a shipment of a common anesthetic it intended to use for executions, nearly a year after the drug distributer's urgent request for it to be sent back.

The department said in a news release it still has a supply of propofol, but it didn't clarify whether it had enough of the drug for two upcoming executions. Phone and email messages left with the agency's spokespeople were not returned.

The announcement came a day after the department released documents to the American Civil Liberties Union, in response to an open records request, that included a Nov. 2 email sent by Dale Kelley, an executive with Louisiana-based pharmaceutical distributor Morris & Dickson Co., to Department of Corrections Director George Lombardi.

The email said a "system failure" led Morris & Dickson to send propofol to the department in violation of the company's agreement with the drug's manufacturer, Germany-based Fresenius Kabi. The email said that because of the mistake, Morris & Dickson was suspended from distributing propofol, which is by far the most popular anesthetic used at U.S. hospitals and clinics.

The drug has never been used in an execution, and Missouri's plan to use it has prompted the anti-death penalty European Union to say it could limit the drug's export. Nearly 90 percent of the U.S. supply comes from Europe.

Fresenius Kabi spokesman Matt Kuhn said the company remained concern that the Missouri execution could prompt a propofol shortage -- even if the drug used is domestically produced.

"EU regulations do not make a distinction on the source of a drug as export sanctions or bans are considered," Kuhn said in a statement. "We continue to communicate with concerned stakeholders, U.S. state, federal and EU officials to ensure that propofol is used only for its intended therapeutic purposes."

In his email to Lombardi, Kelley wrote: "Please -- Please -- Please HELP ... this system failure -- a mistake -- 1 carton of 20 vials -- is going to affect thousands of Americans."

Phone messages left with Morris & Dickson were not returned.

The Corrections Department said its remaining supply of propofol was produced by a domestic manufacturer.

The state has scheduled executions for two death-row inmates: Allen Nicklasson on Oct. 23, and Joseph Franklin on Nov. 20. The executions would be the first in Missouri since the state dropped its three-drug execution method in favor of propofol in April 2012. The switch was made after the state couldn't obtain its previously used drugs because makers began prohibiting their use in executions.

The change to propofol -- the drug used in pop star Michael Jackson's overdose death in 2009 -- also spurred a lawsuit filed on behalf of nearly two dozen death row inmates. The suit argues the drug could result in pain and suffering for the condemned.

The case was scheduled to go to trial this week, but court records show a 30-day delay was granted because of changes the state made Sept. 24 to its execution protocol, such as changing the amount of propofol that would be placed in syringes. That means the case won't go to trial until after Nicklasson's scheduled execution.

On Wednesday, an attorney for the inmates, Jennifer Herndon, asked the Missouri Supreme Court to stay Nicklasson's execution based on the delay, the protocol changes and other concerns.

Nicklasson was convicted of the 1994 killing of Excelsior Springs businessman Richard Drummond, who stopped to help when a car used by Nicklasson and two others broke down on Interstate 70 in central Missouri. Franklin was convicted of the 1977 sniper shooting of Gerald Gordon as a crowd dispersed from a bar mitzvah in suburban St. Louis.