On January 23, 2007, three inmates sentenced to death at the Kentucky State Penitentiary in Eddyville, Kentucky filed a lawsuit under the Federal Food, Drug, and Cosmetic Act (FFDCA), 28 U.S.C. §1331, and the Federal Controlled Substances Act (FCSA), 21 U.S.C. §801, against the Kentucky Department of Corrections in the U.S. District Court for the Eastern District of Kentucky. The plaintiffs asked the court for declaratory and injunctive relief, arguing that the defendants' means for obtaining the chemical used in executions, sodium thiopental, a controlled substance, violates the FCSA and the FFDCA because no licensed medical practitioner prescribes it for use in lethal injections. The plaintiffs also argued that the defendants' use of sodium thiopental, pancuronium bromide, and potassium chloride in lethal injections violates the FFDCA because those substances had not been approved by the FDA for use in lethal injections.

On January 31, 2007, the Court (Judge Karen K. Caldwell) dismissed the claim without prejudice, finding that the plaintiffs were required to exhaust administrative remedies before filing their lawsuit. Bowling v. Haas, No. 07-CV-07-KKC, 2007 WL 403875 (E.D.Ky. Jan. 31, 2007). The plaintiffs subsequently sought administrative remedies, which were denied by the defendants, and re-filed the lawsuit on May 22, 2007.

On August 15, 2007, the Governor of Kentucky scheduled plaintiffs' executions for September 25, 2007. Since the Court had yet to rule on its jurisdiction to decide the merits of the case or on whether the plaintiffs had stated a claim upon which relief could be granted, one of the plaintiffs filed an emergency motion on August 24, 2007, for a preliminary injunction barring the defendants from executing him on the scheduled date.

On March 12, 2008, the Court (Judge Karen K. Caldwell) denied the emergency motion for preliminary injunction as moot. The need for such injunctive relief was obviated shortly thereafter when the Kentucky Supreme Court issued a stay of execution on September 12, 2007. The U.S. Supreme Court subsequently granted the plaintiff's petition for a writ of certiorari in Bowling v. Rees, Civil Action No. 04-CI-1094, Franklin Circuit Court, a case initiated in the Kentucky state courts raising a functionally-identical challenge to Kentucky's implementation of its lethal injection protocol. Because the stay of execution entered by the Kentucky Supreme Court on September 12, 2007, was still in effect, and appeared likely to remain so pending the U.S. Supreme Court's decision, the plaintiff's motion seeking injunctive relief was denied as moot.

On September 23, 2010, in a published Memorandum Opinion and Order, the Court (Judge Karen K. Caldwell) dismissed the plaintiffs' complaint with prejudice, holding the statutes do not expressly or impliedly provide the plaintiffs with a private right of action to enforce their requirements, and because the plaintiffs would be barred from pursuing any such claims under principles of claim preclusion. On the same day, the Court entered a judgment in favor of the defendants.

(Updated on 03/11/2012)

Xin Chen - 03/11/2012


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